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ABDUL HAQ KHAN versus HAJI AMEERZADA

Section 6 - Constitution of Pakistan, Article 246 (b) (i) - Provisions of Section 246 (b) (i) of the Second Reorganization of Districts of Provincial Administered Tribal Areas (PATA) of Khyber Pakhtunkhwa (KPK) Province Was a violation of. The constitution was not created or modified by the constitution of a district, but by the Khyber Pakhtunkhwa Land Revenue Act, 1967, there was no restriction on the constitution that barred the district boundaries, even if it was provincially administered. Belong to the tribe. Whether to replace areas without constitutional amendments

P L D 2017 Supreme Court 105

Present: Mian Saqib Nisar, Faisal Arab and Ijaz ul Ahsan, JJ

ABDUL HAQ KHAN and others—Appellants

versus

Haji AMEERZADA and others—Respondnets

Civil Appeals No. 1023, 1024, 1357, 1358 and 2155 of 2016, decided on 17th January, 2017.

(Against the judgment dated 19-1-2016 of the Peshawar High Court, Peshawar passed in Writ Petitions Nos. 2485-P and 506-A/2014).

(a) Khyber Pakhtunkhwa Districts (Reconstitution)

Ordinance (XXXII of 1960)—

—S. 3—Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967),

S.6—Constitution of Pakistan, Art.246(b)(i)—Whether reconstitution f of districts in the Provincially Administered Tribal Area (PATA) of Khyber Pakhtunkhwa (KPK) province was violative of the provisions of Art.246(b)(i) of the Constitution—Creation or variation of the limits of a district was not governed by the Constitution, but by the Khyber Pakhtunkhwa Land Revenue Act, 1967—No bar existed in the Constitution which prevented the limits of districts, whether in relation to a Provincially Administered Tribal Areas or not, from being changed without a constitutional amendment.

Provincial Government carved out Kohistan (Lower) District from the existing Kohistan District, which was a Provincially Administered Tribal area. High Court found that Provincially Administered Tribal Areas (PATA) excluded from Kohistan District and included in the newly established Kohistan (Lower) District did not figure any where in Article 246 of the Constitution thus the same could not be regarded as territory fÓrm;ing part of PATA, and hence the impugned action of the Provincial Government had disturbed the constitutional status of the said area.

Article 246(b) of the Constitution defined and described “Provincially Administered Tribal Areas” (PATA). Mention of particular names of certain districts or areas in Article 246(b) was only for the purposes of describing the geographical limits of PATA or to mark a certain area as a tribal area, it was not the “district” mentioned in the said Article which had attained territorial sanctity, rather it was the area identified as PATA which had attained territorial sanctity, [p. IT6] A

Creation or variation of the limits of a district was not governed by the Constitution, but by the Khyber Pakhtunkhwa Land Revenue Act, 1967. There was no bar in the Constitution which prevented the limits or districts, whether in relation to a PATA or not, from being changed without a constitutional amendment. To impute such a bar into Article 246(b) of the Constitution would be to read into it something which was not there and was not envisaged by the Constitution, [p. 117] B & E

Supreme Court set aside findings of High Court which provided that Kohistan (Lower) District did not find mention anywhere in Article 246 of the Constitution, thus the same could not be regarded as Abdul Haq Khan v. Ameerzada territory fÓrm;ing part of PATA, and that the Provincial Government had disturbed the constitutional status of the said area. Appeal was allowed accordingly, [p. 120] J

(b) Interpretation of statutes—

—Reading in of words or meaning into a statute when its meaning was otherwise clear was not permissible, [p. 117] C

(c) Interpretation of statutes—

—“Casus omissus”, doctrine of—Scope—Courts generally abstained from providing ‘casus omissus’ or omissions in a statute, through construction of interpretation—Exception to such rule was, when there was a self-evident omission in a provision and the purpose of the law as intended by the legislature could not otherwise be achieved, or if the literal construction of a particular provision lead to manifestly absurd or anomalous results, which could not have been intended by the legislature—Such power, however, was to be exercised cautiously, rarely and only in exceptional circumstances, [p. 117] D

(d) “Casus Omissus”, doctrine of—

—Scope, [p. 117] D

(e) Constitution of Pakistan—

—Art. 246(b)—Provincially Administered Tribal Area—Scope—No bar was provided in the Constitution that prevented a district from comprising both a settled area and Provincially Administered Tribal Area. [p. 117] F

(f) Khyber Pakhtunkhwa Districts (Reconstitution) Ordinance (XXXII of I960)—

—S. 3—Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967), S.6—Constitution of Pakistan, Art.246(b)—Reconstitution of districts in the Provincially Administered Tribal Areas (PATA)—Variation in the limits of a district did not affect the PATA status of an area, therefore the tribal areas of one district would remain tribal areas even after they became a part of another district in PATA. [p. 119] G

(g) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)--

S. 6—Constitution of Pakistan, Art.246(b)—Provincially Administered Tribal Areas (Application of Laws) Regulation (I of 1974), Regin. 3 & Sched. Entry No.S—Whether the Khyber Pakhtunkhwa Land Revenue Act, 1967, that was made applicable to the tribal areas of Swat District through Provincially Administered Tribal Areas (Application of Laws) Regulation, 1974 (“Regulation”) continued to remain applicable to such tribal areas when they were taken out from Swat District and made part of Kohistan District and Kohistan (Lower) District—Tribal areas of one district would remain tribal areas even after they became a part of another district in Provincially Administered Tribal Areas (PATA)—Since all the Provincially Administered Tribal Areas in Kohistan District and Kohistan (Lower) District were once a part of Swat District to which the “Regulation ” had extended the application of the Kayber Pakhtunkhwa Land Revenue Act, 1967, therefore, the said Act would be deemed to be extended to the tribal areas in both Kohistn Distric t and Kohistan (Lower) District—Appeal was allowed accordingly, [pp. 119, 120] G, H & I

Aitzaz Ahsan, Senior Advocate Supreme Court for Appellants (in C.As. Nos. 1023 and 1024 of 2016).

Sardar Abdul Raziq Khan, Advocate Supreme Court for Appellants (in C.As. Nos.1357 and 1358 of 2016).

Waqar Ahmed Khan, Addl. A.G. KPK, Mugees Sana Ullah, Assistant Commissioner, PATA (in C.A. No.2155 of 2016).

Arshad Zaman Kayani, Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record for Respondents 1 to 7 (in C.A. No. 1023 of 2016).

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Respondents 1 to 5 (in C.A. No. 1024 of 2016).

Waqar Ahmed Khan, Addl. A.G. KPK for Respondents 6 to 11 (in C.A. No. 1023 of 2016).

Arshad Zaman Kayani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No. 1 (in C.A. No. 1357 of 2016).

Waqar Ahmed Khan, Additional A.G. KPK for Respondents 8 to 13 (in C.A. No. 1357 of 2016).

Imtiaz Ali, Advocate Supreme Court for Respondents 1, 11 to 15 (in C.A. No. 1023 of 2016).

Sajid Ilyas Bhatti, D.A.G. for Federation.

Dates of hearing: 22nd and 23rd November, 2016.

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