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Civil Petition for Special Leave to Appeal No. 296 of 1967, decided on 13th October 1967.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 23rd May 1967, in Writ Petition No. 592 of 1967).
Person detained in pursuance of order passed under Regulation‑Revision against order before Commissioner, Peshawar Division‑Revision decided without hearing petitioner‑ Question whether validity of Commissioner's order passed at Peshawar without hearing petitioner could not be assailed in writ petition despite fact that order of detention passed and effected in Tribal area‑Special Leave to Appeal granted by Supreme Court to consider question.
Aftab Husain, Senior Advocate Supreme Court (Bashir Ahmad, Advocate Supreme Court with him) instructed by Muhammad Anwar, Attorney for Petitioner.
Nemo for Respondents.
Date of hearing : 13th October 1967.
The petitioner having been detained by an order under the Frontier Crimes Regulation, as a result of proceedings taken and orders made, in the Tribal Area, he moved a revision before the Commissioner, Peshawar, Division, which was decided without a hearing, at Peshawar. He applied to the Home Secretary for relief, but was informed that the application was not competent. He then moved a writ in the High Court, which has been refused by a Division Bench, on the single ground that the matter relates to a Tribal Area, and the Court has no jurisdiction. Leave is sought to appeal against this order.
In the High Court, as well as in the present petition, the Home Secretary has been cited as a respondent. Mr. Aftab Hussain admits that the impleading of the Home Secretary is misconceived. He urges however that although no writ of habeas corpus could be issued, since the petitioner is in detention in a Tribal Area, under an order made in a Tribal Area, yet another remedy sought, which was in the nature of certiorari, questioning the validity of the Commissioner's order for failure to hear the petitioner in the revision, was available since the order was made at Peshawar. The latter point has not been touched in the order of the High Court.
The question is of substantial importance, as rights to liberty and property are involved, and the hearing, hitherto have been before a Jirga and thereafter before the Political Agent, in open darbar, where precision in application of procedure and (in this case) the Turi Zuni Riwaj may well not have bee achieved. The latter point is not mentioned in the Political Agent's order.
We accordingly grant leave to appeal on the question whether the Commissioner should not have granted the petitioner a hearing before making an order on his revision petition. Security‑Rs. 1,000.
An application is filed for stay of execution of a decree against the petitioner, in relation to which the order for detention has been made. The decree was made in the Tribal Area, and cannot be interfered with by the Courts. The application for stay of execution of the decree is accordingly refused.
Leave granted.
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