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Criminal Appeal No. 98 of 1975, decided on 22nd December 1980.

(On appeal from the judgment and order dated 24-9-1974 in Writ Petition No. 123/72 of the Peshawar High Court).

Arts. 199 & 247(7)-Jurisdiction of High Court and- Supreme Court over Tribal Areas--Special leave to appeal-Granted by Supreme Court to examine contention that in reaching conclusion that it had no jurisdiction over Khyber Agency, High Court had omitted to notice that orders of Assistant Political Officer challenged before it were issued within jurisdiction of Court.-[Jurisdiction].

Art. 247 (7) read with art 199-- Ouster of jurisdiction of superior Courts over Tribal Areas-Not to be lightly assumed---Jurisdiction of Supreme Court and High Courts excluded only in matters exclusively concerned with Tribal Areas--Ouster clause cannot be interpreted to exclude jurisdiction of superior Courts in matters in which any part of cause of action accrues or any effective action or step taken or performed at a place outside Tribal Area.-[Jurisdiction].

The ouster of jurisdiction of the 'superior Courts is not to be lightly assumed, and the plain meaning and intention of the ouster clause appears to be to exclude the jurisdiction of the Supreme Court and the High Courts only in those matters, which are exclusively concerned with Tribal areas, and that the ouster clause cannot be interpreted so as to exclude the jurisdiction of a superior Court, in matters in which any part of the cause of action accrues, or any effective action or step is taken or performed in, or at, a place outside the Tribal area, affecting the life, liberty or property of a citizen of Pakistan, or any other person for the time being in Pakistan, and having the right to be governed by the ordinary law of the land and in accordance with the pro cedures obtaining thereunder.

Jamil Ahmad v. State P L D 1969 S C 344 ; Abdul Ghani v. Shoedar Khan P L D 1968 S C 131; Superintendent, Land Customs v. Zawar Khan P L D 1969 S C 485; Abdul Rahim v. Home Secretary, Government of West Pakistan P L D 1974 S C 109 and Manzoor Elahi v. Federation of Pakistgn P L D.,1975 S C 66 ref.

Shaukat Ali, Senior Advocate instructed by Ejaz .Ahmad Khan,, Advocate on-Record (absent) for Appellants.

Maulvi Sirajul Haq, Advocate with Ch. Akhtar Ali, Advocate-on-Record for Respondent No. 1.

Nemo for Respondents Nos. 2 to 11 .

Date of hearing : 22nd December 1980.

.-This appeal, by the leave of the Court, seeks to call in question an order made by a Division Bench of the Peshawar High Court, dismissing a constitutional petition filed under Article 201 of the Interim Constitution by the present appellants to challenge the legality of an order of the Assistant Political Agent, Khyber Agency, regarding the taking of cognizance of a complaint case filed by respondents 5 to 10 herein, referring the same to the Council-of-Elders, and directing the issuance of summons to the appellants and a warrant for the arrest of one of the appellants.

The appellants and respondents 5 to 10 were running a joint business at Bara in the Khyber Agency, which unfortunately proved a failure. The business was, accordingly, dissolved and accounts settled. As a result of this, the 'appellants were to pay to the respondents some 64,000 rupees. In discharge of this obligation, the appellant No. 3 issued two cheques of the said total value but later stopped payment of both cheques. He, subsequently instituted a Civil Court of Lyallpur seeking a deceleration to to the effect that his signature on the cheques had obtained through coericon and pressure.

Respondents 5 to 10, on the other p hand, retaliated by lodging a com plaint before the Assistant Political Officer and A. D. M., Khyber Agency, charging the appellants for fraudulently issuing bogus cheques, which were dishonoured by the banks, and thereby cheating them the meaning of section 420, P. P. C. On this complaint, the Assistant Political Officer, Khyber Agency, took cognizance, directed the issuance of a bailable warrant against appellant No. 3 and summons against appellants 1 and 2. These were sent to Lyallpur for compliance on the 12th October 1972. Hence the writ petition in the High Court.

The High Court, relying on a decision of the Court in the case of Jamil Ahmad v. State (1), dismissed the Writ Petition on the ground that the High Court had no jurisdiction over the Khyber Agency and that its writ did not run into the said area.

Leave to appeal was granted to examine the contention that in reaching this conclusion the High Court had omitted to notice that the orders of the Assistant Political Officer, Khyber Agency, which were challenged before it, were all issued within the jurisdiction ,of the Court, namely, at Peshawar. The warrants and the summons were also to be executed at Lyallpur, which was outside the Tribal Area. At any rate, the Peshawar High Court had, without considering the decisions of this Court in the cases of Abdul Ghani v. Shoedar Khan (2), Supdt. Land Cnstoms v. Zewar Khan (3) and Abdul Rahim v. Home Secretary, Government of West Pakistan (4), dismissed the writ petition holding that it had no jurisdiction to issue a writ to the Tribal area.

We have now beard Mr. Shaukat Ali, learned counsel appearing for the appellants, and Maulvi Sirajul Haq for the Government of Pakistan, and we find that this Court has consistently taken the view, as summed up in the most recent case on the subject, namely, Manzoor Elahi v. Federation of Pakistan (5), that the ouster of jurisdiction of the superior Courts is not to be lightly assum ed, and the plain meaning and intention of the ouster clause appears to be to exclude the jurisdiction of the Supreme Court and the High Courts only in those matters, which are exclusively concerned with Tribal areas, and that the ouster clause cannot be interpreted so as to exclude the jurisdiction of a superior Court in matters in which any part of the cause of action accrues, or any effective 'a action or step is taken or performed in, or at, a place outside the Tribal area, affecting the life, liberty or property of a citizen of Pakistan, or any of the person for the time being in Pakistan, and having the right to be governed by the ordinary law of the land and in accordance with the procedures obtaining thereunder.

Viewed in the light of these principles, it is clear that if the warrants and summons against the appellants were issued by an officer dealing with the Tribal areas, and presumably at a place in the Tribal area, the Peshawar High Court would have no jurisdiction to deal with the matter, as the execution of the warrants and summons was to be carried out in the district of Faisalabad, which place is within the jurisdiction of the Lahore High Court. No material has been brought to our notice to show that the warrants or summons were issued at Peshawar, even though the officer issuing the same also has another functions as Magistrate of the First Class at Peshawar. It is, however, clear that in the present proceedings he was acting as an Assistant Political Agent of Khyber Agency and not as a Magistrate of the First Class within the territorial district of Peshawar.

On this view of the matter, we consider that the learned Judges in the High Court were right in thinking that their jurisdiction stood excluded at the time the matter was brought to them. It transpired that subsequently the writ jurisdiction of the High Court was extended to certain Tribal areas, but that extension took place after the events with which we are dealing in the present case.

As a result of the legal position explained above, we consider that it was only the Lahore High Court, which could have jurisdiction in the matter as the execution of the process was to be carried out at Faisalabad.

The learned counsel appearing for the Government of Pakistan brought to our notice the provisions of section 86-A of the Criminal Procedure Code as introduced on the 26th of December 1975, which lay down a fairly strict procedure before any process issued by an outside Agency can be implemented. The learned counsel suggested that the appropriate remedy for the appellants was to invoke the provisions of this section before the Magistrate concerned at Faisalabad.

We consider that it is for the appellants to choose whatever remedy they think most appropriate in the circumstances of the case. With these observa tions, the appeal is dismissed.

As by an interim order made by this Court on the 2nd of April 1975, it was directed that during the pendency of this appeal in the Supreme Court the proceedings before the Assistant Political Agent, Khyber Agency, will remain stayed, and no Court or authority outside the Tribal area will give effect to or execute his summons, warrants or orders, we grant 15 days time to the appellants to move the appropriate Court for interim relief, if so advised.

One last observation may also be made, namely, that as the Peshawar High Court had itself come to the conclusion that it had no jurisdiction in the matter, therefore, the observations made by it in paragraph 6 of its judg ment dated the 26th September 1974, on the merits of the case do not have any binding effect on any Court or authority.

Appeal dismissed.

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