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Constitution Petition No.133 of 1985, decided on 18th December, 1985.

‑‑‑Ss. 17 & 18‑‑Detention‑‑Failure of detenus to furnish surety bond‑ Dispute existing between sub‑tribe of detenus on one hand and two tribes on other in respect of a Water Scheme and matter pending before Supreme Court‑‑Other two tribes had already furnished surety bonds on asking by authorities to keep peace in same terms in which detenus were asked and they refused to do so‑‑Hostility existing between parties and prima facie it could not be said that there was no likelihood of breach of peace between said three tribes‑‑Order passed by authorities under Ss. 17 & 18 of Ordinance II of 1968 against detenus, held, was binding on them and since they refused to furnish surety bonds to keep peace, interference by High Court was likely to result in breach of peace entailing death of some person‑‑High Court declined to interfere as in such a situation, even otherwise, it would not intervene in matter on technicalities.

‑‑‑Ss. 17 & 18‑‑Word 'faction', held, susceptible to cover 'sub‑tribes.----[Words and phrases].

-----Art. 9‑‑Criminal Law (Special Provisions) Ordinance (II of 1968), Ss.17 & 18‑‑Constitutional jurisdiction‑‑Alternate remedy‑‑Marked distinction held, existed between an order passed without jurisdiction and an order passed by a competent authority which suffered from some infirmity‑‑In former case a party may invoke constitutional jurisdiction of High Court if facts and circumstances of case justified it without availing of alternate remedy but where authority had jurisdiction in matter but committed irregularity and law under which order was passed provided a machinery for rectifying such error, proper remedy for party would be to avail of such remedy.

Abdul Baqi and others v. The Superintendent, Central Prison Machh and others P L D 1957 (W.P.) Kar. 694; Lt.‑Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty P L D 1961 S page 119; Nagina Silk Mill, Lyallpur v. The Income Tax Officer, P L D 1963 S C page 322; Sind Employee's Social Security Institution v. Mumtaz Ali Taj and another P L D 1975 S C 450 and Muhammad Gul Kakar v. Province of Baluchistan P L J 1979 Quetta page 66 rel.

‑‑‑Ss. 17 & 18‑‑Provisional Constitution Order (1 of 1981), Art.9----Constitutional jurisdiction‑‑Provisions of Ordinance 11 of 1968, held were of special nature and enacted to cater for special features of tribal system and High Court, therefore, normally would not allow party to by‑pass hierarchy of forums provided under ordinance rectifying an error or irregularity.

‑‑‑Art. 9‑‑Constitutional jurisdiction,‑‑A discretionary jurisdiction‑‑High Court might decline to exercise this jurisdiction if it was convicted that it would not be just and proper in circumstances of case.

Muhammad Aslam Chishti for Petitioner.

Ch. Muhammad Yousuf A.A.‑G. for Respondent.

Date of hearing: 18th December, 1985.

The petitioner, who claims to be the close relation of the alleged four detenues (hereinafter called the 'detenues") mentioned in the title of the petition has filed the press petition for the following reliefs:‑

(i) this Hon'ble Court may be pleased to issue rule‑nisi; and on production of the detenues direct that they be set at Liberty.

(ii) quashing/declaring orders of 2nd respondent dated September, 1985 and that of Ist respondent dated Nil (announced on 25‑11‑1985) as having been passed without lawful authority.

2. The brief facts leading to the filing of the above potion averred in the petition are that the detenues were taken into custody on 3rd September, 1985. They filed Constitutional Petition No 107 of 1985 on 17th September, 1985 which was allowed by a Judgment Dated 29th September, 1985 on the ground that there was no detention passed but subject to the observation that the respondents could a fresh order in accordance with law.

It seems that on 29th September, 1985, the respondent i.e.; the Political Agent, Zhob sent a wireless message ordering the arrest of detenues under sections 17 and 18 of the Criminal Law (Special Provisions) Ordinance, 1968 (hereinafter referred to as the 'Ordinance') respondent No.3. The respondent No.3 also received an order dazed 30th September, 1985 passed by the respondent No.2 under section above sections lf and 18 of the Ordinance. On the basis of the above wireless message and the above order, the respondent No.3 took action on Ist October, 1985, ordering the release of the detenues on furnishing surety of As.5 Lac. The petitioner instead of furnishing surety filed contempt application as well as a fresh Constitutional Petition No.114 of 1985. In the above contempt application, the official respondents filed affidavits stating thereon, that they had not intended to show any disrespect to flout the order of this court and also appeared in person and tendered un‑conditional apology. Consequently, the above contempt application was dismissed by an order dated 8th December, 1985. The above writ petition No.114 of 1985 was also dismissed by a judgment dated 31st October, 1985, the operative portion of which is as follows:‑-

"On face of the documents produced and relied upon by the petitioner itself indicate that the detenues have been ordered to furnish sureties for keeping peace; It seems that they are not inclined to furnish and as such have challenged the same before this Court. Their opponents have already furnished sureties for keeping peace. From their conduct it could be gathered that they are hostile and adamant to take the law and order in their hands which the authorities bonafidely intended to check by passing the orders impugned before us.

In the circumstances discussed hereinabove we are not inclined to interfere with the orders as action taken against the detenues has been taken under the provisions of Ordinance II of 1968. It cannot be said that their detention is illegal so as to warrant issuance of rule nisi or for setting them at liberty. Besides the alternative remedy available to the petitioner to approach the authorities functioning under the Ordinance for the relief claimed herein has not been exhausted. In addition thereto they have been granted relief by the respondent No.1 to furnish sureties for their release which they themselves are reluctant to avail.

The detenues may approach the appropriate authorities for their release if they so desire or advised.

There is no force in the petition which as such is dismissed but with no order as to cost."

After the dismissal of the above writ petition, the petitioner filed an appeal before the Additional Commissioner, Quetta Division against the above orders dated 29th and 30th September, 1985, who by his impugned order announced on 25th November, 1985 declined to interfere with the above orders and issued the following directions:‑

"After hearing the arguments put forth by the learned counsels for the parties, Assistant District Attorney, I, Quetta who supported the impugned order and perusal of the record, I see no reason to interfere in the order of the lower court. The opposite party i.e. Matherzais and Morazais tribes, have already furnished the requisite surety bonds for keeping peace, while the appellants are not inclined to furnish the same. To maintain peace, between the parties, there was no alternative for the authorities, but to take action under the provisions of section 17/18 of the Ordinance, 1968. The appeal is, therefore, rejected and the case is remanded to the Assistant Commissioner, Muslim- bagh with powers of Deputy Commissioner for referring the matter to a tribunal and after obtaining its award decide the case as soon as possible. These actions should be completed within a month's time from the issue of this order. The order of Political Agent/Deputy Commissioner, Zhob will remain intact for the above period of one month. The case file be returned to the lower Court immediately."

The petitioner being aggrieved by the above order and the original orders has filed the above third petition.

3. In support of the above petition, Mr. Aslam Chishti learned counsel for the petitioner has urged as follows:‑

(i) That the order of detention is mala fide and, therefore, without jurisdiction;

(ii) That since an Assistant Commissioner enjoys the powers of Deputy Commissioner under the Ordinance, the Deputy commissioner ha,: no authority to pass the impugned orders;

(iii) that the respondent No.2 could not have asked for peace bonds for the maintenance of peace by the other Members of the tribe:

(iv) That one month's interim detention order without inquiry is not warranted by section 18 of the Ordinance; and

(v) That since the order was without jurisdiction, the petitioner was not bound to file a revision in terms of section 24 of the Ordinance before the member of the Board of Revenue.

On the other hand, Ch. Muhammad Yousuf, learned Assistant Advocate General has contended that the action of the official respondents is bona fide, as admittedly, there is feud between the three sub‑tribes mentioned in the impugned order of the Additional Commissioner aria that factually, the other two tribes have already furnished peace bond. it has been further urged by him that the petitioner/ detenues should have filed revision, if there was any irregularity or illegality in the impugned orders.

4. It may be observed that from the above quoted portion of the High Courts judgment dated 31st October, 1985, in Constitutional Petition No.114 of 1985, it is evident that the High Court declined to accept the petitioners contention that the official respondents' action was male fide or that the order suffers from any infirmity as to warrant the issuance of rule‑nisi. In this view of the matter, in our view, the petitioner cannot re‑agitate the legality or propriety of the above two impugned orders dated 29th and 30th September, 1985. Even otherwise, prima‑facie, the above contentions are tin‑founded.

5. It is an admitted position according to the petitioner's own averment before the learned Additional Commissioner in appeal that there exists a dispute between his sub‑tribe Sultanzai and the other two tribes Matherzais and Morazais in respect of Urgus water Weir Scheme and the matter is pending before the Honourable Supreme Court of Pakistan. From the appellate order, it is evident that the Project Director made a reference on 4th July, 1985 to the Deputy Commissioner, Zhob about the dispute in question, upon which, a spot inquiry was conducted by him on 10th August, 1985. It is an admitted position as observed hereinabove that the other two sub‑tribes have already furnished surety bonds in the same terms, in which, the detenues were asked. Prima‑facie, it cannot be said that there is no likelihood of breach of peace between the above three sub‑tribes. The hostility seems to be to the extent that the above two sub‑tribes were represented before us through a Counsel though we had not heart him. They had also appeared before the Additional Commissioner in appeal, which is evident from the impugned order. In this view of the matter, prima‑facie, the impugned order) seems to be bona fide.

6. Adverting to the contention of Mr. Chishti that since the Assistant Commissioner exercises the powers of Deputy Commissioner under the Ordinance, the Deputy Commissioner cannot exercise the power, it will suffice to observe that under the Ordinance, the Deputy Commissioner has been empowered to take action. The fact that an Assistant Commis sioner has also been authorised to act through delegation of power, does not divest the powers of a Deputy Commissioner.

7. The above orders dated 29th and 30th September, 1985 have been passed both under sections 17 and 18 of the Ordinance and even if it is to be assumed that the detenues as notables of their sub‑tribe cannot be bound down for keeping peace by the other members of the tribe, the order in any case, under section 17 shall be binding on the detenues. It may be observed that section 18 envisages the passing of an order against the adult members of both the families or factions of either family or faction. The word faction is susceptible to cover sub‑tribes.

8. As regards M. Aslam Chishti's contention that section 18 does not empower the respondent No.2 to pass an order of detention for one month without inquiry, it may again be observed that the order is both under sections 17 and 18. Furthermore, spot inquiry was conducted by the Deputy Commissioner on 10th August, 1985.

9. Dealing with the last submission of Mr. Adam Chishti, learned counsel for the petitioner that the petitioner was not bound to avail of the remedy of revision provided under section 24 of the ordinance, it may be observed that in support thereof, he has submitted that since the orders are mala fide and without jurisdiction, it was not necessary for the petitioner to invoke the revisional jurisdiction. In this behalf, it may be pointed out that there is a marked distinction between an order without jurisdiction and an order passed by a competent authority which suffers from some infirmity. In the former case, a party may invoke the Constitutional jurisdiction of the High Court if the facts and the circumstances of the case justify without availing of alternate remedy as enunciated in the cases cited by Mr. Aslam Chishti, reported in (i) P L D 1957 W.P. Kar. 694 (Abdul Baqi and others v. The Superintendent, Central Prison Machh and others), (ii) P L D 1961 S C 119 (Lt.‑Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty) (2) Pakistan, through the Secretary, Ministry of Finance, Government of Pakistan, Karachi and (3) Nawabzada Muhammad Umar Khan, Chief of Hoti, District Mardan, (iii) P L D 1963 S C 322 (Nagina Silk Mill, Lyallpur v. The Income‑Tax Officer, A‑Ward Lyallpur and the Income tax Appellate Tribunal, Pakistan), (iv) P L D 1975 SC 450 (Sind Employee's Social Security Institution v. Dr. Mumtaz Ali Taj and another), and (v) P L J 1979 Quetta 66 (Muhammad Gul Kakar v. Province of Baluchistan), but where the authority has jurisdiction in the matter, but commits some irregularity and the law under which the order was passed provides a machinery for rectifying such error the proper remedy for the party is to avail of such remedy. The provisions of the Ordinance are of special nature and have been enacted to cater for the special features of the tribal system and, therefore, this Court normally would not allow a party to by‑pass the hierarchy of the forums provided under the Ordinance for rectifying an error or irregularity. Furthermore, it has been repeatedly held by the superior Courts that Constitutional jurisdiction is a discretionary jurisdiction and the Court may decline to exercise this jurisdiction if it is convinced that it will not be just and proper in the circumstances of the case. As observed, hereinabove, there seems to be, prima‑facie, danger of breach of peace between the three sub‑tribes. The detenues nave refused to furnish peace bonds since 30th September, 1985 and preferred to remain in custody. The interference by this Court may result in breach of peace entailing the death of some person. In such a situation, even otherwise, this Court will not be inclined to intervene in the matter on technicalities.

10. For the aforesaid reasons, the petition is dismissed in limine.

The above are our reasons in pursuance of our short order of even date.

M.Y.H. Petition dismissed.

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