2024 CLS 14

Other citations: Original Judgment = 2024 CLC 109

[Peshawar High Court]

Before Ijaz Anwar and Wiqar Ahmad, JJ

Haji Niaz Badshah and others—Petitioners

versus

Haji Mir Akbar and others—Respondents

Writ Petition No. 1430-P of 2013, decided on 4^th May, 2023.

HEADNOTE

Constitution of Pakistan —

— Arts. 199 & 247 — Constitutional petition — Maintainability — Scope — Case history revealed that prior to the current dispute, the matter had been under consideration by the former FATA hierarchy, and the petitioners had pursued their final recourse by submitting a revision petition to the FCR Tribunal as per Section 55-A of the Frontier Crimes Regulations 1901 — However, these orders were challenged in the present writ petition — Validity — Article 246 and Article 247 of the Constitution outline the status and management of tribal areas in Pakistan — However, through the 25^th Constitutional Amendment Act of 2018, amendments were made to Article 246 and Article 247 was omitted — Various legal cases have determined that the jurisdiction of the superior courts, including this Court, is excluded concerning matters related to tribal areas unless otherwise provided by law — Examining the case record, it was found that the parties involved in the present petition are residents of Kurram Agency, now Kurram District, and the dispute pertains to property within the revenue estate of Sadda and Durrani of Lower Kurram — The dispute had already been adjudicated and concluded with the dismissal of the revision petition, leaving no further legal recourse at that time — Therefore, the writ petition challenging these past decisions is deemed not maintainable, as the jurisdiction of this Court is barred under Article 247 of the Constitution — The argument that the Court now has jurisdiction due to the 25^th Constitutional Amendment is deemed legally untenable, as retrospective effect cannot be given to the amendment, and there was no such legislative intention — Hence, matters decided prior to the amendment fall outside the Court’s jurisdiction — In conclusion, the instant writ petition is dismissed for lacking merit. [Para. No. 4, 6, 7, 8, 9 & 10]

Hidayat Ullah v. Mohammad Younas and others (PLD 2020 Supreme Court 362) relied.

Abdul Hafeez, Advocate for petitioners.

Arshad Jamal Qureshi, Advocate and clerk of Barrister Sarwar Muzafar Shah for respondents.

Date of hearing: 4^th May, 2023.

JUDGMENT

Ijaz Anwar J:—The instant writ petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with the following prayers.

“It is therefore, respectfully prayed that on acceptance of this writ petition, the impugned orders may be set aside being illegal, without jurisdiction and without lawful authority besides being violative of the relevant law, rules and judgements of the Superior Courts on the subject.”

2.           In essence, the petitioners are aggrieved of the order dated 20.09.2012 passed by the FCR, Tribunal whereby their revision petition, filed by them against the decision of the APA/ADM Upper Kurram dated 23.7.2003 and Commissioner FCR dated 11.10.2003 was dismissed.

3.           Arguments of learned counsel for the parties heard and record perused.

4.           Perusal of the record reveals that in the instant case, the dispute between the parties remained sub-judice before the erstwhile FATA hierarchy and the petitioners have availed the final remedy by filing revision petition before the FCR Tribunal in terms of section 55-A of the Frontier Crimes Regulations 1901, those orders were questioned in this instant writ petition.

5.           Earlier, this Court vide order dated 07.4.2014 dismissed the writ petition on the ground that in terms of Article 247 of the Constitution of Islamic Republic of Pakistan, 1973, such orders of the erstwhile FATA hierarchy cannot be questioned before this Court. The order of this Court has now been set aside by the august Supreme Court of Pakistan vide its order dated 13.9.2022 passed in Civil Appeal No. 858-P/2015. Its relevant portion is reproduced as under:-

“The learned counsel for the Appellant has pointed out that on account of passage of the 25^th and 26^th Constitutional amendment the learned High Court has been conferred jurisdiction in the matter. Through the impugned order, the High Court had refused to interfere in the matter for want of jurisdiction. He, therefore, argues that it would be appropriate that this matter may be remanded to the High Court for decision afresh on merits. In this view of the matter, we are inclined to allow this appeal. The matter is remanded to the High Court with a direction to hear the matter afresh, examine the question of jurisdiction, consider the effect of the aforesaid amendment to the Constitution and decide the same in accordance with law, after hearing all parties who may address such please as they may deem appropriate. This appeal is allowed, in the aforesaid terms.”

6.           Article 246 of the Constitution of Islamic Republic of Pakistan, 1973 provides the detail about the tribal areas in Pakistan and its status while Article 247 provides the manner in which these tribal areas are to be dealt with. In terms of Article 247, Sub Article 7, the jurisdiction of the honorable Supreme Court and this Court was excluded. Article 247 Sub Article 7 being relevant is reproduced as under:-

“Neither the Supreme Court nor a High Court shall exercise any jurisdiction under the Constitution in relation to a Tribal Area, unless [Majlis-e-Shoora (Parliament)] by law otherwise provides”

Provided that nothing in this clause shall affect the jurisdiction which the Supreme Court or a High Court exercised in relation to a Tribal Area immediately before the commencing day.”

7.           By virtue of 25^th Constitutional Amendment (25^th Amendment Act, 2018), amendments were introduced in Article 246 while Article 247 was omitted. The jurisdiction of this Court in the matters pertaining to FATA remained the subject matter of numerous cases and it was decided in terms of Article 247 to the effect that the bar of jurisdiction of the superior court in terms of Article 247 would applicable where cause of action and subject matter in dispute is in the tribal areas and that the parties to the dispute were also resident of tribal areas. Reference can be made to the cases of “Mst. Rohaifa through her sons and another Vs Federation of Pakistan through Secretary, Ministry of Defense and 2 others” (PLD 2014 august Supreme 174), “Qaum Bangash and others Vs Qaum Turi and others” (1991 SCMR 2400), “Shaukat Khan vs Assistant political Agent, Landi Kotal, Khyber Agency and others (PLD 2002 SC 526), “Abdul Rahim and others Vs Home Secretary, Government of West Pakistan and another” (PLD 1974 SC 109), “Malik Taj Muhammad and another Vs Bibi Jano and 25 others” (1992 SCMR 1431), “Muhammad Siddiq and others Vs Government of Pakistan and others” (1981 SCMR 1022), “Manzoor Elahi Vs Federation of Pakistan and others” (PLD 1975 SC 66).

Similarly, the august Supreme Court of Pakistan in case titled “Additional Chief Secretary (FATA) and others” Vs Piayo Noor” (2014 SCMR 17) while referring almost all the judgements rendered in terms of Article 247 of the Constitution of Islamic Republic of Pakistan, 1973 held that where a matter relates to the tribal areas, the jurisdiction of the High Court is ousted whether the grievance brought before the court is based upon violation of fundamental rights or of any other law.

Recently, the august Supreme Court of Pakistan in case titled “Hidayat Ullah Vs Mohammad Younas and others” (PLD 2020 Supreme Court 362) held as under:

“The ouster of jurisdiction of the High Court under Article 199 of the Constitution is specific for the reason that cause of action for the civil relief of such Sersaya as well as the residence of the parties and the locus of the corpus of the dispute, namely, the Coal mines are located within the Kohat Frontier Region. Consequently, the High Court had no jurisdiction to entertain the writ petition.”

8.           Having examined the record of the case, we find that parties to the instant petition are resident of Kurram Agency now Kurram District and the property situates within the revenue estate of Sadda and Durrani of Lower Kurram. Similarly, the cause of action also arise therein. Moreover, the dispute between the parties was duly adjudicated upon and decided finally while the revision petition was dismissed on 20.9.2012. At the relevant time, there was no further remedy provided under the law. As such, in terms of Article 247 of the Constitution of Islamic Republic of Pakistan, 1973 this writ petition questioning those orders is not maintainable as the jurisdiction of this Court is barred under Article of the Constitution of Islamic Republic of Pakistan, 1973. Merely because after the 25^th Constitutional Amendment, Article 247 has been omitted cannot entrust this court with the jurisdiction pertaining to the matters which are past and closed transaction and decided finally in erstwhile FATA hierarchy before the 25^th Constitutional Amendment.

9.           The argument of learned counsel for petitioners regarding maintainability of this petition on the ground that this Court has now the jurisdiction is not legally tenable because the 25^th Constitutional Amendment cannot be given retrospective effect, nor there was any such intention of the legislature otherwise, decided matters prior to the 25^th Constitutional Amendment are also to be looked into by this Court and it will open a flood gate. In any case, at the relevant time when this writ petition was filed, Article 247 Sub Article 7 was very much in the field and the jurisdiction of this Court was barred pertaining to matters exclusively dealt with by FATA hierarchy and have attained finality, thus after exhausting those remedies, this court was having no jurisdiction in terms of Article 247 (7) of the Constitution of Islamic Republic of Pakistan, 1973.

10.         In view of the above, we find no merit in the instant writ petition which is accordingly dismissed.

Petition dismissed