' SHAHZAD AKBAR KHAN, J.--- This Constitutional petition filed by Khanzada and Sahibzada who are father and son inter se, is meant to call in question their detention in jail pursuant to the warrant of arrest issued by Assistant Political Agent, F.R. Kohat (respondent No,1), as illegal and violative of the fundamental rights guaranteed by the Constitution.
2. Breviate of this matter is that respondent No,3 Muhammad Akbar Khan Marwat filed a suit for recovery of money in the Court of respondent No,
1. The suit so filed was, in the ultimate analysis, decreed against the petitioners on 9-3-1999. During the execution proceedings, respondent No,1 issued a warrant of arrest purportedly under section 9(b) of the Frontier Crimes Regulation, 1901 (Regulation No,III of 1901) (hereinafter called as the FCR). In execution of such warrant, the petitioners were arrested by the local police Mardan and were sent to judicial lock-up by the concerned Judicial Magistrate. Subsequently, they were removed to the jurisdiction of respondent No,1, which led to the filing of the instant petition.
3. This Court on 30-10-2003 ordered the release of the petitioners on bail. They are, therefore, now out of the jail on the strength of order of this Court.
4. The learned counsel for the petitioners has argued that the arrest and detention of the petitioners was not justified as after the arrest the provisions of section 86-A of Criminal Procedure Code were not complied with and in a matter purely of civil nature, the outright arrest of the petitioners was not warranted in law as the arrest of a judgment-debtor is an ultimate resort when the preceding measures fail to execute the decree of a Court. The learned counsel urged that the petitioners be treated in accordance with the law and the Political Authorities be restrained from taking measures tending to harass the petitioners. He in support of his arguments placed reliance on the case of Syed Khalid Bacha v. Deputy Commissioner, Mardan and 6 others decided by this Court and reported in 2002 PCr.LJ 1390. Taking shelter of the said judgment, the learned counsel contended that since the petitioners as well as the decree-holder (respondent No,3) are the residents of the settled area, therefore, this decree should be executed by a Court in settled area.
5. Conversely the learned counsel for respondent No,3 has contended that a valid decree for the recovery of money has been passed by a competent forum i,e, respondent No,1 and the said decree having been upheld by the appellate and revisional fora have attained finality. He submitted that the said decree would require execution by averting all the evasive tactics by the petitioners. The learned counsel fairly stated that his client is not interested in the arrest of the petitioners nor would he press therefor but a vested right has accrued to him through validly passed decree and the execution thereof may not be frustrated.
6. We have considered the arguments of the learned counsel for the parties in the light of the record of the case. The admitted position is that against the petitioners, decree for recovery of money has been passed in favor of respondent No,3 which has attained finality. Nobody can escape the legal position that the decree so passed has to be executed in accordance with law.
Sections 8 and 9 of the FCR owing to their relevancy to the instant matter are reproduced below:-- "8. Civil References to Council of Elders.--- (1) Where the Deputy Commissioner is satisfied, from a police report or other information, that a dispute exists which is likely to cause a blood feud or murder, or culpable homicide not amounting to murder, or mischief or a breach of the peace, or in which either or any of the parties belongs to a frontier tribe he may, if he considers that the settlement thereof in the manner provided by this section will tend to prevent or terminate the consequences anticipated, and if a suit is not pending in respect of the dispute, make an order in writing, stating the grounds of his being so satisfied, referring the dispute to a Council of Elders, and requiring the Council to come to a finding on the matters in dispute after making such inquiry as may be necessary and after hearing the parties. The members of the Council of Elders shall in each case, be nominated and appointed by the Deputy Commissioner.
(2) The order of reference made under subsection (1) shall state the matter or matters on which the finding of the Council of Elders is required.
(3) On receipt of the finding of the Council of Elders under this section, the Deputy Commissioner may---
(a) remand the case to the Council for a further finding or
(b) refer the case to a second Council; or
(c) refer the parties to the Civil Courts; or
(d) pass a decree in accordance with the findings of the Council, or of not less than three-fourth of the members thereof, on any matter stated in the reference; or
(e) declare that further proceedings under this section are not required.
9. Effect of decree on finding of Council.--- A decree passed under section 8, subsection (3), clause (d), shall not give effect to any finding or part of a finding which, in the opinion of the Deputy Commissioner is contrary to good conscience or public policy, but shall--
(a) be a final settlement of the case so far as the decree relates to any matter stated in the reference, although other matters therein stated may remain un-disposed of; and
(b) have, to that extent and subject to the provisions of this Regulation with respect to revision, the same effect as a decree of a Civil Court of ultimate resort, and be enforced by the Deputy Commissioner in the same manner as a decree of such a Court may be enforced."
7. Evidently the decree has been passed under section 8(3)(d). The record is indicative that on 1-1- 1999 the petitioners furnished personal bond for their appearance before respondent No,1, failing which they undertook the liability of payment of Rs,1,00,000 (one lac) each as fine. In the said bond the petitioners indicated their present residence as Darra Bazar, Kohat. A plain reading of clause
(b) of section 9 (ibid) makes it clear that a decree passed under section 8 subsection (3) clause (d) shall have the same effect as a decree of a Civil Court of ultimate resort and it shall be enforced by the Deputy Commissioner in the same manner as a decree of such a Court may be enforced. The expression "such a Court" means a Civil Court. The "Deputy Commissioner" has been defined in section 2(b) of the FCR which is in the following manner:- "(b) 'Deputy Commissioner' includes any Magistrate of the first class appointed by the Deputy Commissioner by order in writing to exercise all or any of the functions or powers specified in the first part of the first Schedule, and also any Magistrate appointed by the [Provincial Government] to exercise all or any of such functions or powers."
' Section 38 of the Code of Civil Procedure (Act No,Y of 1908) provides that a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. It thus, follows that the Court which passed the decree can execute the same itself or if the circumstances so demand, it can send its decree to some other Court for execution thereof.
8. The judgment cited and relied upon the learned counsel for the petitioners is of no help to the petitioners. In the said case a decree for recovery of money was passed by the Assistant Political Agent South Waziristan and it was directed that the decree be executed by the District Magistrate, Mardan by auctioning the moveable and immovable property of the judgment-debtors. The Deputy Commissioner, Mardan for the implementation of the decree outrightly issued warrant of arrest against the judgment-debtors and sale of their immovable property. This Court, therefore, held that although the decree was passed under the FCR but since it was to be executed in Mardan being settled area, therefore, its execution was to be made entirely in accordance with the provision of Civil Procedure Code. The relevant segment of the cited judgment is reproduced below:- "(9) It would be seen that the execution of a decree passed by Deputy Commissioner, in the present case the Assistant Political Agent exercising the powers of Deputy Commissioner, shall have the same effect as the decree of a Civil Court of ultimate resort and can be executed as a decree of a Civil Court. Since the decree passed by the Assistant Political Agent was to be executed in the District of Mardan, where the F.C.R. Is not in force, it can be executed only in accordance with the law of execution of decree enforced in Mardan, under the Civil Procedure Code. The Assistant Political Agent passing the decree had, therefore, to follow the procedure laid down in section 38 read with Order 21, rules 5 and 6 of the C.P.C. The mode adopted by the Assistant Political Agent and the implementation of the decree by the Deputy Commissioner and the Assistant Commissioner, Mardan was contrary to law."
9. In the said case the decree was sent by the Political Authorities to the Deputy Commissioner, Mardan for its execution. It cannot be argued that the Assistant Political Agent has no authority in law to execute the decree and as a matter of legal obligation the decree was transferred to the settled area. In view of clause (b) of section 9, the Political Authority is vested with the powers to execute the decree passed under section 8 of the FCR. It is not a matter of compulsion that the Assistant Political Agent who has passed a decree according to law governing the subject within his jurisdiction shall transmit the decree for its execution to the settled area. Thus, in the circumstances we are not inclined to accept the argument of the learned counsel for the petitioners that this decree should be sent to a Court in the settled area. For its execution.
10. The petitioners have been released on bail by this Court as referred above and the learned counsel for respondent No,3 has, at the bar, stated that respondent No,3 is neither interested nor will press for the arrest of the petitioners provided they appear before respondent No,1 in connection with the execution proceedings. In view of such a statement by the counsel for respondent No,3, the learned counsel for the petitioners does not appear to sustain any apprehension about the harassm ent of the petitioners by respondent No,1. Since the decree against the petitioners has not been denied, therefore, its execution according to law is also a demand of the law and cannot be escaped. We may also observe that clause (b) of section 9,, quoted above, also provides a necessary protection against any kind of apprehended harassment as it is provided therein that the decree shall be enforced in the manner as a decree of such a Court may be enforced. It has earlier been clarified that "such a Court" means a Civil Court and, therefore, the procedure adoptable by a Civil Court has to be adopted by the authority.
' In view of the foregoing circumstances when the grievances of the petitioners regarding their arrest stood remedied by way of order of this Court dated 30-10-2003 and also in view of the statement of the learned counsel for respondent No,3, this writ petition is, therefore, disposed of with the direction to respondent No,1 to proceed with the execution proceedings strictly in accordance with the law governing the subject. Needless to mention that arrest is not the underlying object of execution of a decree. If the execution authority feels that the decree can more effectively be executed by proceeding against the property of judgment-debtor in the settled area then it would be more appropriate and akin to the object of execution of decree to send it for its execution to the Court/Authority where the property of judgment-debtor is situated and to avoid the unnecessary arrest of the judgment-debtor.