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Civil Appeal No. 5‑P of 1969, decided on 2nd February 1973.

(On appeal from the judgment and order of the former High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 18th November 1965, in Writ Petition No. 338 of 1963).

Per Hamoodur Rahman, C. J., Sajjad Ahmad and Salahuddin Ahmed, JJ. (majority view)‑

Special Areas (Restoration of Jurisdiction) Order (P. O. 11 of 1961), Arts. 2(2) & 6 read with Constitution of Pakistan (1956), Art. 178, Constitution of Pakistan (1962), Arts. 223(1), (5) & 225(1), Government of India Act, 1935, Art. 223‑A, Establishment of West Pakistan Act, 1955, S. 7(i), High Court of West Pakistan (Establishment) Order (G. G.'s O. XIX of 1955), Art. 3(2), and Laws (Continuance in Force) Order, 1958‑President's Order 11 of 1961‑Did not operate in tribal areas after enforcement of Constitution of 1962 Writ jurisdiction of High Court‑Not exercisable in tribal areas (Contra) Per Muhammad Yaqub Ali and Waheeduddin JJ. s President's Order 11 of 1961 continued in force in tribal areas till jurisdiction taken away by introduction of cl. (5) to Art. 223 of Constitution of Pakistan (1962).

Where the contention was that although the High Court, whose jurisdiction had been extended to tribal areas by President's Order N3. 11 of 1961, lost its jurisdiction over the truba1 areas after the insertion of clause (5) in Art. 223 of the Constitution of Pakistan, 1962, it did have that jurisdiction before insertion of clause (5) in Art. 223 which came into effect on 10‑1‑1964.

Under Article 225(1) of the 1962 Constitution, like all other existing laws, continuance of President's Order No 11 of 1961 was subject to the provisions of the Constitution, until altered, repealed or amended by the appropriate Legislature. Under the express terms of Article 223, (1), a Central law did not apply to the tribal areas unless the President so directed. Admittedly no such direction was given by the President for the application of Order No. 11 of 1951 to the tribal areas. The command of the Constitution, which was prospective, was, therefore, clear that no Central law shall apply to tribal areas unless the President gave a direction is that behalf. No distinction has been made in this regard between Central laws made exclusively for the tribal areas and other general Central laws made for all or any other area. Every Central law without regard to its field of operation was to have a direction of the President for its continuance in the tribal areas.

As the President did not give any direction with regard to the application of President's Order No. 11 of 1961 after the enforcement of the Constitution of 1962 it could not and did not operate in the tribal areas after the enforcement of the Constitution.

Article 2(2) of President's Order No. 11 of 1961 is to be con strued as having restored the superior Court's jurisdiction, which before then was exercisable in those areas or in parts thereof under the various statutes applicable to those areas. As the writ juris diction had never been exercisable in that area, there was no question of the restoration of that jurisdiction under President's Order No. 11 of 1961.

The High Court's writ jurisdiction under Article 170 of 1956 Constitution was excluded by Article 178 thereof in respect of special areas, unless the Parliament by law provided otherwise. No Act of Parliament was enacted to enable the High Court to exercise its constitutional jurisdiction in the special areas. No doubt, the Laws (Continuance in Force) Order had conferred jurisdiction on the Supreme Court and the High Courts to issue high prerogative writs, but reading it along with Article 178 of the 1956 Constitution, as ordained by Article 2(2) of the Order No. 11 of 1961 the writ jurisdiction of the High Court was not exercisable in the special areas. Under Article 98 of the 1962 Constitution, the writ jurisdiction was conferred on the High Court of each Province but it contained no express provision for its exercise in the special areas.

The writ petition was never admitted to a hearing, and long before the appearance of both the parties in the Court for the first time on the 10th of March 1964, clause (5) had been added to Article 223 of the Constitution on the 10th of January 1964, making it clear that the writ jurisdiction of the High Court did not extend to the tribal areas. This clause provided that the superior Courts shall not exercise any jurisdiction in relation to tribal areas unless the Central Legislature by law otherwise provides. The Central Legislature described in Article 19 of 1962 Constitution, was to consist of the President and one house known as the National Assembly of Pakistan. President's Order No. 11 of 1961 cannot, under that definition, be considered to be a law of the Central Legislature, as it was not passed by the National Assembly and assented to by the President.

By reason of the words "subject to this Constitution" the provisions of clause (1) of Article 223 of the 1962 Constitution became attracted, and no Central law, as President's Order No. 11 of 1961 was, could, after the 8th of June 1962, continue to apply to any part of a tribal area, unless the President had so directed after the coming into force of the Constitution of 1962. This direction was never given. The result of this, was that President's Order No. 11 of 1.961, which did restore the jurisdictions of the Supreme Court and the High Court of West Pakistan in the special areas (formerly tribal areas), did not continue to remain applicable.

Assuming that President's Order No. 11, which came into force with effect from the 12th Decem ber 1961, authorised the High Court to exercise its Writ Jurisdiction in Tribal Areas, on the 8th June 1962, when Article 223(1) of the 1962 Constitution came into force the President's Order required the requisite direction from the President for its application In Tribal Areas vide Article 223(1). Admittedly there is no such direction by the President as con templated in Article 223(1) of the Constitution. The contention, that the President having himself made President's Order No. 11 for the Tribal Areas no further direction was required from him to make the order applicable to Tribal Areas, appears to be misconceived, for the person who passed President's Order No. 11 is not legally the same person as the President contemplated under Article 223(1) of the Constitution. The President who made President's Order No. 11 was a self‑constituted authority, while the President under Article 223(1) of the 1962 Constitution was the President constituted under the 1962 Constitution. It is true that President's Order No. 11 of 1961 was preserved under Article 225 of the Constitution until altered, repealed etc., but this preser vation was made subject to the Constitution, and the Constitution clearly provided that any Central Law in order to be applicable in a Tribal Area must have the direction of the President as mentioned in the Article.

Jamil Ahmad v. The State P L D 1969 S C 344 and Superin tendent, Land Customs v. Zewar Khan P L D 1969 S C 285 ref.

Article 5 of the Special Areas (Restoration of Jurisdiction) Order, 1961 extended the period of limitation which began to run before the 14th day of October 1955, in respect of any matter concerning which jurisdiction was created or restored by the Order. Thus not only jurisdiction of the Supreme Court and High Courts was created and restored in respect of Special Areas under Article 2 of the Order but it was given retrospective effect. It is obvious that no further direction by the Governor or President under Article 104 of the 1956 Constitution read with the Laws (Continuance in Force) Order t of 1958 was necessary to apply the provisions of Order No. 11 to the Special Areas. The law was made for the Special Areas. No further conscious direction was necessary to enforce it in those Areas. The provisions of Article 104 as well as Article 223(1) of the 1962 Constitution deal with laws, which are enacted for areas other than the Special or Tribal Areas. These laws though made by the Parliament or the Provincial Legislature do not apply to the Tribal Areas unless the President or the Governor by conscious application of mind so directs. A law, which is made by the President for the Tribal Areas, however; stands on a different footing. When the law is made the President has already applied his mind and given a direction that it shall apply to Tribal Areas. This satisfied fully the requirement of Article 104 of the 1956 Constitution and Article 223(2) of the 1962 Constitution. Article 225 of the 1962 Constitution continued in force all "existing laws". Under clause 7 of the Article all President's Orders were included in "existing laws" President's Order No. 11 of 1961 was thereby continued in force in the Tribal Areas. The jurisdiction conferred by the Special Areas (Restoration of Jurisdiction) Order, 1961, on the Supreme Court and High Courts was there by continuing when the writ petition was filed by the appellants here in the High Court. The words: "subject to this Constitution" in Article 225 did not make it obli gatory on the President to give a direction under Article 223(1) for extension of Laws which were made exclusively for the Tribal Areas or the Laws which had already been extended to the Tribal Areas.

President's Order No.. 11 of 1961 was issued with a view to bringing "Special Areas" within the jurisdiction of the superior Courts.

On the language of Article 2(2) of the Order it is quite clear that the High Court of West Pakistan's jurisdiction in the tribal areas were restored and the High Court could entertain writ petitions in respect of the tribal areas.

It was not at all necessary to extend President's Order No. 11 of 1961 afresh. The fact is that President's Order No. 11 of 1961, which was enforced on the 12th December 1961, became an existing law and was kept alive by Article 225(1) of the 1962 Constitution. This being so it remained in force on the promul gation of 1962 Constitution and the former High Court of West Pakistan continued to have jurisdiction to entertain writ petitions in respect of tribal areas. It is, them‑fore, quite clear that the former High Court of West Pakistan had jurisdiction to entertain writ petitions till clause (5) was incorporated in Article 223 of the 1962 Constitution.

The Constitution unless it otherwise provides has no retros pective effect. The language of clause (5) incorporated in Article 223 of 1962 Constitution leaves no doubt that it has no retrospective effect and does not affect the pending cases. The amendment in the Constitution is not of a procedural nature and, therefore, it cannot have retrospective effect.

Under President's Order No. 11 of 1961, the jurisdiction of the High Court in respect of disputes arising in the tribal areas had been restored and continued to remain in existence till the amend ment of 1962 Constitution when clause (5) of Article 223 was incorporated, which took away the jurisdiction of the High Courts and the Supreme Court. It is, therefore, quite clear that when the writ petition was filed by the appellants, the High Court had jurisdiction to entertain it and to consider it on merits and the appellants have a right to get the action brought by them decided on merits.

Jamil Ahmad and another v. The State P L D 1969 S C 344 and Adrian Afzal v. Capt. Sher Afzal P L D 1969 S C 187 ref.

Muhammad Shafi, Senior Advocate Supreme Court instructed by Muhammad Nazar Khan, Advocate‑on‑Record for Appellants.

Khalilur Rahman, Advocate Supreme Court Instructed by Iftikharuddin, Advocate‑on‑Record for Respondent No. 1.

Ijaz Ali Sheikh, Advocate‑on‑Record for Respondents Nos. 2‑5.

Dates of hearing: 11th and 12th October 1972.

This appeal is directed against the decision of a Division Bench of the former High Court of West Pakistan (Peshawar Seat), whereby a writ petition filed by the appellants under Article 98 of the 1962 Constitution was dismis sed on the ground that the jurisdiction of the High Court did not run in the tribal territory of Dir where the impugned cause of action had arisen. The grievance which the appellants had brought In the writ jurisdiction of the High Court was as follows

They claimed that they represented the two well‑known tribes of Dir State namely, Utman Khel and Roghan Khel num bering about 10,000 people. They were in undisputed possession of lands in certain villages in the Adden Zal area of Dir State since the last 450 years without paying any share of the produce of their lands to any other tribe. It was alleged that contrary to their established rights, the Political Agent of Dir had ordered them and their tribesmen to pay 1/4th and 1/3rd of their annual har vests to the Afghan tribes of Utman Zal and Babu Khel respecti vely. The Political Agent had further forbidden the appellants to remove the crops harvested and stored by them at the threshing ficors. They had also been prevented from cultivating these lands, and heavy guards had been posted there to safeguard against any such activity. The appellants prayed that this action of the Political Agent be declared as illegal and without lawful authority. As already stated above, the High Court has dismis sed the writ petition on the short ground of lack of jurisdiction with the following remarks: ‑

"Counsel contended that clause (5) of Article 223 of the Constitution (1962) is not retrospective and, therefore, the matters already pending before the first amendment of the Con, situation, which came into effect on the 10th of January 1964, are not covered by that clause, and these writ petitions can continue. By the enforcement of the first amendment to the Constitution and its application on the 10th of January 1964, tie matters already pending in the High Court or the Supreme Court cannot be heard as the jurisdiction of these Courts has been taken away by the introduction of clause (5) of the said Article. In the present case, the applicability of clause (5) by the first amendment to the Constitution is material, because the present writ petition could not be heard by virtue of this amendment and decision to his effect would not be considered to be giving retrospectivity to this amendment. Besides that, the Full Bench judgment passed in Writ Petition No. 406 of 1963 mentioned above holds the field and the Division Bench is bound by it. For the aforesaid reasons, we find that this Court has no jurisdiction to hear these petitions which relate to the tribal area."

On the 19th of December 1966, this Court granted special leave to appeal against the judgment of the High Court, as the questions raised involved the Interpretation of constitutional provisions, in particular of the provision introduced Into the Constitution by the First Amendment Act (I of 1964) concerning valuable rights in the disputed property.

For deciding the point in issue, it is necessary to record certain relevant dates. The writ petition was filed on the 24th of September 1963. A report was called from the respondent on the 16th of October 1963. Parties appeared before the Court on the 10th of March 1964, and a fresh order was made for the submission of the report by the respondent by the 14th of October 1964. The report was submitted on the 6th of June 1965, and the petition was dismissed in limine on the 18th of November 1965.

Clause (5) of Article 223 of the 1962 Constitution was added by the First Amendment Act, 1953 (I of 1964), which came into effect on the 10th of January 1964. This clause reads as follows: ‑‑

"223(5). Notwithstanding anything in this Constitution, neither the Supreme Court nor a High Court shall unless the Central Legislature by law otherwise provides, exercise any jurisdiction under this Constitution in relation to a tribal area."

It is also necessary to refer here to Article 223(P L D 1969 S C 344) of the 1962 Constitution, which provided that "a Central law is not to apply to a Tribal Area unless the President so directs, and in giving such a direction with‑respect to any law, the President may further direct that the law shall, in its application to a Tribal Area or to a specified part of a Tribal Area, have effect subject to such exceptions and modifications as may be specified in the direction".

In the case of Jamil Ahmad v. The State (P L D 1969 S C 344) the precise question decided by this Court was whether the writ jurisdiction of the High Court of West Pakistan extended to the "Tribal Areas". The Court unanimously held that this jurisdiction was not available in the Tribal Areas, which in that case pertained to North Waziristan Agency. This view was re‑affirmed by this Court in the case of Superintendent, Land Customs v. Zewar Khan (P L D 1969 S C 344)), wherein the following views were expressed: ‑

"The next question is as to whether the writ could at all issue, because the truck and the articles therein were seized within the tribal area. The Court has already held in the case of Jamil Ahmad v. The State (Criminal Appeal No. 11 of 1968) that the High Court has no jurisdiction to issue a writ under Article 98 of the Constitution to the tribal areas:

In the present appeal, it has been contended by the learned counsel for the appellants that although the High Court lost its jurisdiction over the tribal areas after the insertion of clause (5) In Article 223 of the 1962 Constitution, it did have that jurisdiction before then, i.e., at the time of the institution of the present writ petition on the 24th of September 1963, in view of Article 223(1) cited above, as the President's Order No. 11 of 1961 issued on the 4th day of July 1961, and gazetted on the 12th of Decem ber 1961, had restored the jurisdiction of the superior Courts to these areas. It was submitted that Order No. 11 of 1961 was an existing Central law which was in force, having been kept alive by Article 225 (1) of the 1962‑Constitution. This point was duly considered in the case of Jamil Ahmad v. The State, mentioned above, and it was observed that the President's Order No. 11 of 1961 was not applicable, not having been extended by the President to the tribal areas after the enforcement of the 1962 Constitution. It was urged by the learned counsel for the appellants that Order 11 of 1961, which I ad restored the juris diction of the superior Courts to the tribal areas, was specially enacted for those areas, and being an existing law in operation, kept alive by Article 225(1) of the 1962 Constitution, it was not at all necessary for the President to direct its application for the second time to the tribal areas after the promulgation of the 1962 Constitution. I regret I do not agree with this contention. The President's Order No. 11 of 1961 was indeed a Central law within the definition of Article 242 of the 1962 Constitution. Butt under Article 225(1) of the flame Constitution, like all other existing laws, its continuance was subject to the provisions of the Constitution, until altered, repealed or amended by the appro priate Legislature. Under the express terms of Article 223(1), a Central law did not apply to tie tribal areas unless the President so directed. It is admitted that no such direction was given by the President for the application of Order No. 11 of 1961 to the tribal R areas. The command of the Constitution, which was prospective was, therefore, clear that no Central law shall apply to tribal areas unless the President gave a direction in that behalf. No distinction has been made in this regard between Central law, made exclusively for the tribal areas and other general Central laws made for all or any other area. Every Central law without regard to its field of operation was to have a direction of the President for its continuance in the tribal areas. To my mind; section 2231) (ibid) required a conscious application of mind by the President for making a direction for the application of any law to the tribal areas after the enforcement of the 1962 Consti tution. Even otherwise, on the enforcement of a new Constitu tion, which established its own institutions and organs, every command of the Constitution had to be literally obeyed. As the President did not give any direction with regard to the applica tion of President's Order No. I1 of 1961 after the enforcement of the Constitution of 1962 it could not and did not operate in the tribal areas after the enforcement of the Constitution.

But apart from this consideration, Order No. 11 of 1961, is my opinion, itself supports the view that the writ jurisdiction of the High Court of West Pakistan, which had never been extended to the tribal areas, was not extended by that Order. Historically, the States of Amb, Chitral, Dir and Swat were described as special areas in the 1956 Constitution, and as tribal areas in the 1962 Constitution. Formerly, they were native States, which, on the Partition of the sub‑continent acceded to Pakistan. Under the Instruments of their Accession, they had acceded to Pakistan for certain specified matters and their internal administration remained unaffected. Under the Instruments of Accession, certain Pakistan laws were no doubt enforced in these States but the writ jurisdiction of the High Court was never extended to these territories. President's Order N3. 11 of 1961 called the "Special Areas (Restoration of Jurisdiction) Order, 1961", was made on the 4th of July 1961 and was published in the Gazette of Pakistan Extraordinary on the 5th of July 1961. This Order was brought into force by a notification dated the 12th of Decem ber 1961. Clause (2) of Article 2 of this Order, on which reliance is placed by the learned counsel for the appellants, reads as follows :‑

"2(2) The High Court of West Pakistan shall exercise to relation to the territories comprised in the Special Areas or any part thereof the same jurisdiction as would have been exercisable by the High Court of West Pakistan on the 14th day of October 1955, if sub‑clause (i) of clause (a) of section 2 of the Establishment of West Pakistan (Amendment) Act, 1955, and Article 178 of the Constitution of the 23rd day of March 1956, had not been enacted."

This should be read with Article 6 of the same Order, which runs as under :‑

"Nothing in this Order shall operate to confer on the High Court or the Supreme Court a jurisdiction not conferred by the Laws (Continuance in Force) Order, 1958."

In historical retrospect, it may be recalled that by the Government of India (Amendment) Act, 1954, Article 223‑A was introduced in the Government of India Act, 1935, by which all the then High Courts in Pakistan were given the powers to issue high prerogative writs as were earlier enjoyed by the High Court of Judicature of England under the English Common Law. This Article read with Article 223 of the Government of India Act, 1935, makes it perfectly clear that the writ jurisdiction conferred on the High Court was not exercisable in the areas described as special areas or the tribal areas. Then on the 14th of October 1955, came the Establishment of West Pakistan Act of 1955. Section 7(i) of this Act empowered the Governor‑General to establish a High Court for the integrated Province of West Pakistan in place of several High Courts which were then functioning in the areas forming part of West Pakistan. In pursuance of this provision, the Governor‑General made an Order called the "High Court of West Pakistan (Establishment) Order, 1955" (G. G. O. No. 19 of 1955), which came into force on the 14th of October 1955, that is to say, on the very date on which the establishment of West Pakistan Act was brought into force. By the said Order, one single High Court, namely, the High Court of West Pakistan, was established for the Province of West Pakistan in place of the earlier High Courts operating in the various Provinces. The jurisdiction of the newly constituted High Court was provided for in Article 3(2) of the said Order, which reads t‑

"The High Court shall have such original, appellate and other jurisdiction and such powers and authority in respect of the territories included in the Province of West Pakistan as the High Court of Judicature at Lahore had immediately before the commencement of this Order in respect of the territories in of relation to which it exercised appellate jurisdiction."

That the writ jurisdiction of the High Court, as confer Article 223‑A of the Government of India Act, 1935, did not extend to special areas or tribal areas, would be evident from paragraph 8 of the Statement of Objects and Reasons of the Establishment of West Pakistan Act, 1955, which Is to the follow ing effect : -

The establishment of a single High Court, with divisions in various part of West Pakistan, cannot be effected directly by the Bill, since numerous details will have to be settled in consultation with the Chief Justice. It is, however, proposed to extend to the whole of West Pakistan jurisdiction at present possessed by the Lahore High Court over the Punjab. The judges of the present High Courts in the provinces are being transferred to the new High Court.

Section 7(i) of the Establishment of West Pakistan Act, as origi nally enacted, provided that "the High Court so established (i.e. the High' Court of West Pakistan to be established under that section) and the Judges thereof shall exercise jurisdiction I in relation to the whole of the Province of West Pakistan and the powers and authority exercisable by the High Court in Lahore And the Judges thereof, immediately before the date on which the Order under this subsection comes into force, shall be exercisable by the High Court of West Pakistan and the Judges thereof in the whole of West Pakistan and section 223 of the Government of India Act, 1935, shall be construed accordingly. According to this provision, the jurisdiction of the new High Court of West Pakistan was to extend to the whole of the Province of West Pakistan, including the special/tribal areas. However, as all kinds of jurisdic tions of the High Court did not extend to these areas, there arose a doubt as to the nature of the High Court's jurisdiction in those areas. It was with a view to removing this doubt that the expres sion "except the special areas" was incorporated in section 7(1) of the Establishment of West Pakistan (Amendment) Act, 1955,which was given retrospective effect from the 14th October 1955.The purpose of this amendment was stated in the Statement of Objects and Reasons as follows:

"After the enactment of the Establishment of West Pakistan A 1955, certain errors and omissions have been noticed in it. Some doubts have also been raised about the interpretation and application of the provisions of section 7 of the Act in relation to the jurisdiction of the Benches of the High Court established at Karachi and Peshawar. Some amendments in the Bill relate to these matters."

This amendment in turn gave rise to another difficulty. As a result of this amendment, no jurisdiction of any hind what soever was exercisable by the High Court of West Pakistan in relation to the special areas, which were totally excepted from Its jurisdiction by the amendment, the law‑makers not realising that the High Court had all along exercised some jurisdiction over special areas under different statutes. For instance, before the establishment of new High Court the High Court of Lahore had jurisdiction some parts of e tribal areas under the Sea Customs Act, the Land Customs Act, Criminal Pro cedure Code, the Foreign Exchange Regulations Act, the Foreigners' ‑Act, the Pakistan Citizenship Act, and the like. The result of the amendment was that the High Court was no longer in a position to exercise jurisdiction under the various statutes in any part of the special areas, although that jurisdiction was available under those statutes and was being exercised by the High Court of Lahore prior to the setting up of West Pakistan. When this difficulty came to the surface, the President's Order No. 11 of 1961 was m with a view to restore the jurisdiction of the High Court, which was earlier exercised by it in special areas under different statutes. But it cannot be said that this order was promulgated with a view to confer for the first time the writ jurisdiction on the High Court of West Pakistan to be exercised in these areas. In the case of Superintendent, Land Customs v. Zewar Khan, already cited above, it was held that "the Sea Customs Act, the Land Customs Act and the Tariff Act had been duly extended to the Khyber Agency, which was a part of the special areas or tribal areas. Under section 181‑B of the Sea Customs Act; a Special Bench of the High Court alone can adjudicate a certain matter". In the case of Jamil Ahmad v. The State, it was observed that "C.r. P. C. was applied to the North Waziristan Agency, which is also a part of the special areas". The name of the Order No. 11 of 1961 a3 "Special Areas (Restoration of Jurisdiction) Order" it also significant. The question of "restoration of jurisdiction" arises only if the jurisdiction was at some time exercised by the Court in special areas. As pointed out above, the High Court did exercise some jurisdiction In some of these areas under different statutes, but had never exercised writ jurisdiction, as conferred by section 223‑A of the Government of India Act, 1935.Under the 1956 Constitution, neither the Supreme Court under Article 22, nor the High Court under Article 170, possessed writ Jurisdiction over these areas in view of clause (4) of Article 22and Article 178 thereof, which specifically excluded the exercise of such jurisdiction over these areas. The President's Order No. 11 of 1961 should, therefore, be viewed in the background of the constitutional history mentioned above. Article 2(2) of that Order is, therefore, to be construed as having restored the superior Courts' jurisdiction, which before then was exercisable in those areas or in parts thereof under the various statutes applic able to those areas. A9 the writ jurisdiction had never been exercisable in those areas, there was no question of the restora tion of that jurisdiction under President's Order No. 11 of 1961.Again, Article 6 of this Order made it clear that the High Court or the Supreme Court shall not under the Order exercise any jurisdiction not conferred on them by the Laws (Continuance in force) Order, 1958. That Order did not specifically confer constitutional jurisdiction on the superior Courts over the special or the tribal areas. According to Article 2(1) of the Laws (Continuance in Force) Order, 1958, Pakistan was to be governed as nearly as may be in accordance with the Constitution of 1956. As already stated above, the High Court's writ jurisdiction under Article 178of that Constitution was excluded by Article 178 there of in respect of special areas. Unless the Parliament by law provided otherwise. No Act of Parliament was enacted to enable the High Court to exercise its constitutional Jurisdiction in the special areas. No doubt, the Laws (Continuance in Force) Order had conferred jurisdiction on the Supreme Court and the High Courts to issue high prerogative writs. but reading it along with Article 178 of the 1956 Constitution, as ordained by Article 2(2) of the Order mentioned above, the writ jurisdiction of the High, Court wag not exercisable in the special areas. Under Article 98 of the 1962 Constitution, the writ jurisdiction was conferred on the High Court of each Province but it contained no express provision for its exercise in the special areas. Article 223 merely prescribed the manner in which a Central law or Provincial law Is to be applied to the tribal areas, and empowered the President end the Governor to make regulations In respect of those areas. Clause (5) added to Article 223 by the Constitution (First Amend ment) Act of 1963 did not imply that prior to its Insertion. the writ jurisdiction of the superior Courts also covered the special areas. This clause merely re‑stated the legal position already obtaining as to the absence of the writ jurisdiction in those areas. By the Constitution (First Amendment) Act, 1963. The funda mental rights earlier abrogated by the Martial Law promulgation of the 7th of October 1958, were restored. That belong so. It was perhaps thought necessary to Insert clause (5) to Article 223 by way of express re‑statement of the correct legal position. That the special/tribal areas did not fall within the ambit of the amendment.

The jurisdiction of the superior Courts as conferred by Article 98 of the 1962 Constitution was entirely a discretionary jurisdiction, and was to be exercised on well‑recognized judicial principles. In the present case, the writ petition was never admit ted to a hearing, and long before the appearance of both the parties In the Court for the first time on the 10th of March 1964, clause (5) had been added to Article 223 of the Constitution on the 10th of January 1964, making It clear that the writ jurisdiction of the High Court did not extend to the tribal areas. This clause provided that the superior Courts shall not exercise any jurisdiction in relation to tribal areas unless the Central Legist. Lantern by law otherwise provides. The Central Legislature described In Article 19 of 1962 Constitution, was to consist of the President and one house known as the National Assembly of Pakistan. President's Order No. 11 of 1961 cannot, under that definition be considered to be a law of the Central Legislature. As it was not passed by the National Assembly and assented to by the President.

I am also of the opinion that since clause (5) of Article 223 of 1962 Constitution merely declared the state of the law as it existed primarily for purposes of clarification and to remove any doubts thereof, it is not necessary to determine its prospective or retrospective character.

As the High Court's writ jurisdiction was not available in respect of the tribal areas of Dir, the appellants' writ petition was rightly dismissed by the High Court. I would, therefore, dismiss this appeal without making any order as to costs.

I have now had the advantage of reading the judgment proposed to be delivered by my learned 1 brother Sajjad Ahmad Jan, J. and the dissenting notes written by my learned brothers, Muhammad Yaqoob Ali and Waheeduddin Ahmad, JJ.

While I am unable to agree with Sajjad Ahmad Jan, J. that President's Order No. 11 of 1961, which came into force on the 12th of December 1961, under Notification No. SRO‑1223(K)/61, did not have the effect of restoring the writ jurisdiction of the High Court of West Pakistan, I regret I cannot also subscribe to the conclusions reached in the dissenting notes that the said order, being a Central Law under Article 242 of the Constitution of 1962, was also continued in operation as an existing law by reason of the provisions of clause (1) of Article 225 of the raid Constitution.

The latter clause reads as follows:‑

"Except as provided by this Article, all existing laws shall, subject to this Constitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature."

I regret to say that my learned brothers, Muhammad Yaqoob Ali and Waheeduddin Ahmad, JJ., have not attached any importance to the words "subject to this Constitution" occurring in clause (1) of Article 225. In my view, by reason of these words, the provisions of clause (1) of Article 223 of the same Constitution became attracted, and no Central law, as President's Order No. 11 of 1961 was, could, after the 8th of June 1962, continue to apply to any part of a tribal area, unless the President had so directed after the coming Into force of the Constitution of 1962. This direction was never given. The result of this, in my opinion was that President's Order No. 11 of 1961, which did restore the jurisdictions of the Supreme Court and the High Court of West Pakistan in the special areas (formerly tribal areas), did not continue to remain applicable.

The position, therefore, on the 24th of September 1963, when the writ petition was filed in the Peshawar Seat of the former High Court of West Pakistan, was that the jurisdiction conferred on the High Court by President's Order No. 11 of 1961 was not exercisable and, therefore, the writ petition was bound to fail on that ground.

Clause (5) was added to Article 223 of the 1962 Constitution on the 10th of January 1964, by the Constitution First Amend ment Act, 1963 (Act I of 1964), when fundamental rights were restored. This was evidently done to clarify that the High Court and the Supreme Court should have no jurisdiction to grant any remedy in the case of a violation of a fundamental right in the tribal/special areas.

On the other hand, if President's Order No. 11 of 1961 had been applicable, as has been held by my learned brothers, C J Muhammad Yaqoob Ali and Waheeduddin Ahmad, JJ., on the date the writ petition was filed, I would have had no hesitation in agreeing with them that that jurisdiction could not be taken away by the subsequent incorporation of clause (5) in Article 223of the said Constitution without giving it any retrospective effect.

For these reasons, I am in agreement with the conclusion reached by my learned brother, Sajjad Ahmad Jan, J., that the appeal should be dismissed without any order as to costs, as the High Court's writ jurisdiction was not available in respect of the tribal areas of Dir on the date the writ petition was filed in the High Court

I agree with my learned brother Waheeduddin, J.‑That the appeal be allowed and the case remanded to the High Court for decision on merits.

The observation in Jamil Ahmad and another v. The State ((1) P L D 1969 S C 344), to the effect that in the absence of a direction by the President under Article 223(1) of the 1962 Constitution the President's Order No. 11 of 1961 did not apply to Tribal Areas is Inaccurate.

The corresponding provision in the 1956 Constitution was contained In Article 104 viz:

" Notwithstanding anything in the Constitution Act o f Parliament or of the Provincial Legislature shall apply to a Special Area to any part thereof unless the Governor with the previous approval of the President directs .

The jurisdiction of the Supreme Court and High Courts was excluded in respect of Special Areas by Article 178 of the 1956 Constitution. The Constitution was abrogated by Mr. Iskander Mirza on the 7th October 1958, but the Laws (Continuance in Force) Order 1 of 1958 continued its operation with certain modifications. On the 4th of July 1961, the President in pursuance to the Proclamation of the 7^th October 1958, and In exercise of all powers enabling him in that behalf promulgated the Special Areas (Restoration of Jurisdiction) Order, 1961.Article 2 of the Order provided as under:

"2. (1) The Supreme Court shall exercise in relation to the territories comprised In the Special Areas or any part there of the same jurisdiction as would have been exercisable in relation to those territories or that part by the Federal Court of Pakistan on the 14th day of October 1955, and by the Supreme Court on the 23rd day of March 1956, if sub‑clause (i) of clause (a) of section 2 of the Establishment of West Pakistan (Amendment) Act, 1955,and Article 178 of the Constitution of the 23rd day of March 1956, had not been enacted.

(2) The High Court of West Pakistan shall exercise in relation to the territories comprised in the Special Areas or any part thereof the same jurisdiction as would have been exercisable by the High Court of West Pakistan on the 14th day of October 1955, if sub‑clause (i) of clause (a) of section 2 of the Establishment of West Pakistan (Amendment) Act, 1955, and Article 178 of the Constitution of the 23rd day of March ' 1956, had not been enacted."

Article 5 of the Order extended the period of limitation, which began to run before the 14th day of October 1955, in respect of any matter concerning which jurisdiction was created or restored by the Order. Thus not only jurisdiction of the Supreme Court and High Courts was created and restored in respect of Special Areas it was given retrospective effect. It is obvious that no further direction by the Governor or President under Article 104 of the 1956 Constitution read with the Laws (Continuance in Force) Order 1 of 1958 was necessary to apply the provisions of Order No. 11 to the Special Areas. The law was made for the Special Areas. No further conscious direction was necessary to enforce it in those Areas.

The provisions of Article 104 as well as Article 223(1) of the 1962 Constitution deal with laws which are enacted for areas other than the Special or Tribal Areas. These laws though made by the Parliament or the Provincial Legislature do not apply to the Tribal Areas unless the President or the Governor by conscious application of mind so directs. A law which is made by the President for the Tribal Areas, however, stands on a different footing. When the law is made the President ha already applied his mind and given a direction that it shall apply to Tribal Areas. This satisfied fully the requirement of Article 104 of the 1956 Constitution and Article 223(1) of the 1962 Constitution.

Article 225 of the 1962 Constitution continued in force all existing laws". Under clause 7 of the Article all President's Orders were included in "existing laws". President's Order No. 11 of 1961 was thereby continued in force in the Tribal Areas. The jurisdiction conferred by the Special Areas (Restoration of Jurisdiction) Order, 1961, on the Supreme Court and High Courts was thus continuing when the writ petition was filed by the appellants here in fn the High Court.

I am clearly of the view that the words: "subject to this Constitution" in Article 225 did not make it obligatory on the President to give a direction under Article 223(1) for extension of Laws which were made exclusively for the Tribal Areas or the Laws which had already been extended to the Tribal Areas. I had a research made by the Reference and Research Officer who reports that no notification was issued at any time after the commencement of the 1962 Constitution extending the application of Laws to Tribal Areas which had already been extended there or which were like the Frontier Crimes Regulation made for the Tribal Areas alone. This is a correct position of the law. Otherwise, we shall reach the unfortunate conclusion that actions taken in the Tribal Areas from 8th June 1962, onwards under scores of statutes, such as, Excise Act, Land and Sea Customs Act, Frontier Crimes Regulation, etc. are illegal and without jurisdiction. This by itself is a material consideration to be kept in view in interpreting Article 223(1).

The jurisdiction conferred on the Supreme Court and High Courts was taken away by clause 5 of Article 223, which was added by the Constitution (First Amendment) Act I of 1964. The National Assembly did not give it retrospective effect. The words used are: "the Supreme Court not a High Court shall, unless the Central Legislature by law otherwise provides, exercise any jurisdiction under this Constitution in relation to a Tribal Area". It has been the consistent view of this Court that any change in the jurisdiction of a Court does not affect the competence of a pending lis unless the Legislature expressly so provides As there is no such provision in clause 5 of Article 223, the High Court erred in holding that it had no jurisdiction to entertain the writ petition filed by the appellants.

The appeal must, therefore, be allowed and the case remanded to the High Court for decision on merits. Parties shall bear their own costs.

I have had the advantage of reading the judgment proposed to be given by Sajjad Ahmad Jan. J. I regret to say that I do not find myself in agreement with the conclusion reached by my learned brother. In my opinion, the High Court had the writ jurisdiction and the matter should be referred to the High Court for decision of the dispute between the parties on merits. The grounds on which I have reached this conclusion are as under:‑

The only question for consideration in this appeal is whether the former High Court of West Pakistan, Peshawar Bench, had jurisdiction in the present case to issue writ on the allegation made in the petition to the Political Agent of Dir State.

Before coming to the merits of the case, it is necessary to mention certain dates. Writ petition in this case was filed on the 24th September 1963. The report was called from the respondent on the 16th October 1963. Parties were present on the 10th of March 1904 and fresh order was passed for submitting the report by the respondents on the 14th October 1964. Letter was issued in this connection to the respondents on the 28th May 1964. Report was submitted on the 6th June 1964 and the, petition was dismissed in limeline on the 18th November 1965. During the pendency of the writ petition, clause (5) was added to Article 223 of the Constitution by the Constitution (First. Amendment) Act, 1963 (1 of 1964), section 10 of which came into effect on the 10th January 1964. This amendment is In the following language:‑

"223(5). Notwithstanding anything in this Constitution neither the Supreme Court nor a High Court shall unless the Central Legislature by law otherwise provides exercise any jurisdiction under this Constitution in relation to a Tribal Area."

It will be noticed that it was on the language of the above mentioned clause (S) in Article 223 of the Constitution that the High Court held that it had no jurisdiction to issue writ in the Dir State.

The learned counsel for the appellants has traced out the history of the jurisdiction of the High Court in Dir State and has contended that when the writ petition was filed in the former High Court of West Pakistan, It had jurisdiction to entertain writ petition in respect of disputes arising in the Dir State. In order to appreciate his point, it is necessary to refer to the various legislative measures, which have been enforced in respect of the tribal areas. Under the Establishment of West Pakistan Act, which came into force on the 14th October 1955, amongst other territories, the tribal areas of Baluchistan. The Punjab and North‑West Frontier and the States of Amb, Chitral, Dir and Swat, described In the Act as "Specified Territories" were incorporated in the Province of West Pakistan. Under the same Act by section 7. The former High Court of West Pakistan was established by (3. G. O. No. 19 of 1955 and the Judges of the former High Court of West Pakistan were given territorial jurisdiction In relation to the whole of the newly‑integrated Province of West Pakistan, including "Special Areas". By a subsequent amendment of section 7 of the Act introduced by section 2 of the Establishment of West Pakistan (Amendment) Act of 1955. "Special Areas" were excluded from the jurisdiction of the High Court with effect from the 14th October 1955. On the promulgation of the 1956 Constitution, the same poaitlo1 was maintained and the "Special Areas" were kept outside the jurisdiction of the High Court of West Pakistan.

On the 4th day of July 1961, President's Order No. 11 of 1961 was Issued with a view to bringing "Special Areas" within the jurisdiction of the superior Courts. This Order was issued on the 12th December 1961 in the Gazette Notification. Subsection (2) of section 2 of the Order which is applicable, is as under:‑‑

"2(2). The High Court of West Pakistan shall exercise in relation to the territories comprised in the Special Areas or any part thereof the same jurisdiction as would have been exercis able by the High Court of West Pakistan on the 14th day of October 1955, if sub‑clause (i) of clause (a) of section 2 of the Establishment of West Pakistan (Amendment) Act, 1955 and Article 178 of the Constitution of the 23rd day of March 1956 had not been enacted."

On the language of the above provision of law, it is quite clear that the High Court of West Pakistan's jurisdiction in the tribal) areas were restored and the High Court could entertain writ petitions in respect of the tribal areas.

This position continued till the enforcement of the 1962 constitution, which was enacted op the Ist of March 1962 and enforced from the 8th of June 1962. Article 223(1) of the Constitution reads as under:‑

"223(1). No Central Law shall apply to a Tribal Area or to any part of a Tribal Area unless the President so directs, and no Provincial Law shall apply to a Tribal Area or to any part of a Tribal Areas unless the Governor of the Province in which the Tribal Area is situated, with the approval of the President, so directs, and in giving such a direction with respect to any law, the President or the Governor, as the case may be, may direct that the law shall, in its application to a Tribal Area or to a specified part of a Tribal Area, have effect subject to such exceptions and modifications as may be specified in the direction."

Thus a Central Law was to operate in the tribal territory if so directed by the President under the Constitution.

The learned counsel for the appellants has contended that President's Order No. 11 of 1961 is one of such laws and that Order having been made by the President and not revoked, is a Central Law within the definition of that term in Article 242 of the Constitution and must be enforced. The contention of the learned counsel is not without force. This question was considered by this Court in the case of Jamil Ahmad and another v. The State ((1) P L D 1969 S C 344). While making a passing remark, it was observed that President's Order No. 11 of 1961 was not applicable, as it was not extended to the tribal areas after the enforcement of 1961 Constitution. In my opinion, it was not at all necessary to extend this Order afresh. The fact is that President's Order No. 11 of 1961 which was enforced on the 12th December 1961, became an existing law arid was kept alive by Article 225(1) of the 1962 Constitution. This being so it remained in force on the promulgation of 1962 Constitution and the former High Court of West Pakistan continued to have jurisdicti3n to entertain writ petitions in respect of tribal areas. It is, therefore, quire clear that the former High Court of West Pakistan had jurisdiction to entertain writ petitions till clause (5) was incorporated in Article 223 of the 1962 Constitution.

The next question for consideration is whether incorporation of clause (5) in Article 223 of the 1962 Constitution has made any effect on the pending cases. It is needless to mention that the Constitution unless it otherwise provides has no retrospective effect. The language of clause (5) referred to above leaves no doubt that it has no retrospective effect and does not affect the g pending cases. The amendment in the Constitution is not of a procedural nature and, therefore, it cannot have retrospective effect.

Mr. Khalil‑ur-Rehman, learned counsel for respondent No. 1 contended that Article 223(1) being declaratory will apply retrospectively. He further contended that when a jurisdiction is taken away by the Constitution, the pending casts abate, None of the contentions raised by the learned counsel has any‑force. Recently, this Court considered the general principle with regard to the interpretation of statutes in the case of Adnan Afzal Capt. Sher Afzal ((1) P L D 1969 S C 187). In this connection my Lord the Chief: Justice made the following observation:‑

"The general principle with regard to the interpretation of statutes as laid down in the well known case of the Colonial Sugar Refining Company Ltd. v. Irving (1905 A C 369) is that "if the matter in question be a matter of procedure only", the provisions would be retrospective. "On the other hand, if it be more than a matter of procedure, if it touches a right inexistence at the passing of the Act," then "in accordance with a long line of authorities extending from the time of Lord Coke to the present day", the legislation would not operate retrospectively, unless the Legislature had either "by express enactment or by necessary Intendment" given the legislation retroactive effect. To the same effect are the observations of Jessel, Master of the Rolls, in the case of In re: Joseph Suche & Co. Limited (1875) 1 Ch. D 48 where it was observed that as a general rule when the Legislature alters the rights of parties by taking away or conferring any right of action, its enact ments, unless in express terms they apply to pending actions, do not affect them. It is said that there is one exception to, that rule, namely, that, these enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights." The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties, pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, 9t must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation causes inconvenience or injustice. Then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other band, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any con sequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively."

Keeping these principles in view, clause (5) of section 223 of the 1962 Constitution cannot be said to have any retrospective effect and will not take away any existing right of the parties.

After careful consideration of the facts of the present case, It appears to me that under President's Order No. 11 of 1961, the jurisdiction of the High Court in respect of disputes arising in the tribal areas had been restored and continued to remain in. existence till the amendment of 1962 Constitution when clause (5) of Article 223 was incorporated, which took away the jurisdiction of the High Courts and the Supreme Court. It is, therefore; quite clear that when the writ petition was filed by the appellants: the High Court had jurisdiction to entertain it and to consider it on merits and the appellants have a right to get the actions brought by them decided on merits. In these circumstances, the High Court has wrongly declined jurisdiction to entertain the writ petition. It should have investigated the grievance of the appellants and should have given redress to them if they were entitled to it. In that view of the matter, the order of the High Court is set aside and the petition is sent back to the High Court for deciding it on merits. I would, therefore, allow the appeal and leave the parties to bear their own costs

.

have had the advantage of reading. The judgments proposed to be delivered by My Lord the Chief Justice and my learned brothers Muhammad Yaqoob Ali, Sajjad Ahmad Jan and Waheeduddin Ahmad, JJ.

The question for consideration is whether on the 24th September 1963, when the writ was filed, the High Court was, empowered to exercise its Writ Jurisdiction in the Tribal Areas concerned.

In the case of Jamil Ahmad v. The State (PLD1969SC344), it has been held that President's Order No. 11 of 1961 was a 'Central Law' and its continuance was preserved under Article 225 of the late 1962 Constitution subject to the Constitution. That being so, assuming that President's Order No. 11, which came into force with effect from the 12th December 1961, authorised the High Court to exercise its Writ Jurisdiction in Tribal Areas, on the 8th June, 1962, when Article 223(1) of the said Constitution came into force the President's Order required the requisite direction from the President for its application in Tribal Areas. Article 223(1) is in these terms:‑

"223(1). No Central Law shall apply to a Tribal Area or to any part of a Tribal area unless the President so directs, and no Provincial Law shall apply to a Tribal Area or to any part. of a Tribal Area unless the Governor of the Province In which, the Tribal Area is situated, with the approval of the President,, so directs, and in giving such a direction with respect to any law, the President or the Governor, as the case may be, may direct that the law shall, in its application to a Tribal Area or to a specified part of a Tribal Area, have effect subject to such exceptions and modifications as may be specified in the direction."

Admittedly there is no such direction by the President ash contemplated in Article 223(1) of the Constitution. The contention, that the President having himself made President's Order No. 11 for the Tribal Areas no further direction was required from him to make the Order applicable to Tribal Areas, appears to me to be misconceived, for the person who passed President's Order No. 11 is not legally the same person as the President contemplated under Article 223(1) of the Constitution. The President who made President's Order NO. I was a self‑constitute authority, while the President under Article 223(1) of the 1962 Constitution was the President constituted under the said Constitution. It is true that President's Order No. 11 of 1961was preserved under Article 225 of the Constitution' altered repealed etc, but this preservation was made subject to the Con stitution, and the Constitution clearly provided that any Central Law in order to be as, applicable In a Tribal Area must have the direction of the President as mentioned in the Article. The view I have expressed is fully in consonance with the decision of this Court in the case of Jamil Ahmad v. The State.

Having regard to the view expressed above, the question whether President's Order No. 11 of 1961 authorised the then High Court of West Pakistan to exercise its Writ Jurisdiction in "a Tribal Area is of academic interest only and need not be decided here.

I accordingly agree with the order proposed to be passed by my Lord the Chief Justice and my learned brother Sajjad Ahmad Jan, J.

In accordance with the opinion of the majority, this appeal is dismissed without making any order as to costs.

S. A. H. Appeal dismissed.

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