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P L D 1957 (W. P.) Quetta 9

Before S. A. Rahman, C. J. and Yaqub Ali, J

DOSSO and another‑Petitioners

Versus

THE STATE and others‑Respondents

Writ Petition No. 21 of 1957, decided on 9th August 1951.

Constitution of Pakistan, Arts. 170 & 178‑---

High Court whether can issue writ in the nature of habeas corpus in respect of persons present within the area of
its own jurisdiction, but detained under order illegally passed by authority immune to jurisdiction of the High
Court‑Frontier Crimes Regulation, (III of 1901)‑Provisions enabling executive authorities to refer criminal case
to jirga‑--Void under Art: 4 of the Constitution of Pakistan‑Constitution of Pakistan, Art. 5‑Establishment of
West Pakistan Act, 1955, S. 2.

By section 2 of the Establishment of West Pakistan Act, 1955; the Tribal Areas of Baluchistan, along with
certain other tribal areas and States were incorporated in the Province of West Pakistan. Article 1 of the
Constitution of Pakistan declares that the territories of Pakistan shall comprise the territories of the Provinces of
East Pakistan and West Pakistan. Thus even the Special Areas, which is the name given to the Tribal Areas, are
included within the areas of Pakistan and the citizen residing therein are entitled to the benefit of the
fundamental rights guaranteed by the Constitution. Thus the provisions of the Frontier Crimes Regulation, 1901,
which enable the executive authorities to refer any criminal case to a jirga are repugnant to Article 5 of the
Constitution and therefore, void under Article 4. A conviction based on the award of jirga in a criminal case,
even in the Special Areas, is, therefore, to be regarded as without jurisdiction.

Despite a provision in an enactment ousting jurisdiction of all Courts in respect of proceedings under it, the
constitu tionality of the enactment could be inquired into and if it was ultra vires the constitution writ in the
nature of habeas corpus, in respect of a person convicted for any offence committed under such ultra vires Act,
could be issued by the High Court.

Article 178 of the constitution apparently enacts that the High Court shall not entertain any appeal or revision
from the orders passed by authorities in a Special Areas, whether in a civil or a criminal matter. To that extent,
the Article entails the consequence that although the order in question may be ultra vires of the Constitution, it is
not open to residents of the Special Area concerned, under Article 170 of the Constitution or under any other
Provisions of law, to approach the High Court for redress. But the High Court is not debarred from expressing an
opinion upon the legality or otherwise of orders passed by the relevant authorities in a Special Area in all
conceivable cases. Nor is it precluded from exercising its jurisdiction under Article 170 of the Constitution in
respect of persons detained by an illegal order within the territorial limits of its jurisdiction although such
persons may have been tried and convicted by an authority immune to the jurisdiction of the High Court.

Toti Khan etc. v. The District Magistrate Sibi and Ziarat P L D 1957 Quetta 1 ref.

Birpal Singh v. Emperor A I R 1946 F C 2 dist.

Mirza Muhammad Ahmad, Advocate for Petitioners.

M. Anwar, A. A. G. for the State.

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Date of hearing: 8th August 1957.

JUDGMENT

S. A. RAHMAN, C. J.‑---Dosso and Muhammad Khan were convicted by the District Magistrate, Loralai,
under section 376 P. P. C. read with section 12 (2) of the Frontier Crimes Regu lation, 1901, and sentenced to
five years' rigorous imprison ment each, on the basis of an award by a jirga. They are being detained in the
Machh Jail within the jurisdiction of this Court. A petition has been put in on their behalf under Article 170 of
the Constitution, praying for the issue of a writ in the nature of habeas corpus or any other appropriate writ for
their being set at liberty, on the ground that they are being illegally and improperly detained. The petition also
seeks the issue of a writ of certiorari or a suitable order or direction for quashing the order of the District
Magistrate by which they were convicted and sentenced.

Loralai is one of the Special Areas excluded from this Court by Article 178 of the Constitution. Mr. Anwar
Assistant Advocate‑General, who appeared for contested the petition on the ground that would bar this Court
from acceding to the prayers made in the petition.

The legal position, as we see it, is as follows, by section 2 of the Establishment of West Pakistan Act, 1955, the
Tribal Areas of Baluchistan, along with certain other tribal areas and States, were incorporated into the Province
of. West Pakistan. Article 1 of the Constitution declares that the territories of Pakistan shall comprise the
territories of the Provinces of East Pakistan and West Pakistan. It is thus clear that even A the Special Areas,
which is the name given to the old Tribal Areas, are included within the area of Pakistan and the citizens
residing therein are entitled to the benefit of the fundamental rights guaranteed by the Constitution had embo
died in Part II thereof. Article 4 of the Constitution lays down that any existing law, or any custom or usage
having the force of law, in so far it is inconsistent with the provisions of Part II of the Constitution, shall, to the
extent of such inconsistency, be void. We have already held in Toti Khan etc. v. The District Magistrate, Sibbi
and Ziarat (Writ Petition No. 17 of 1957, decided on the 5th of August 1957) (P L D 1957 (W. P.) Quetta 1), that
the provisions of the Frontier Crime; Regulation, 1901, which enable the executive authorities to refer any
criminal case to a jirga are repugnant to Article 5 of the Constitution and are, therefore, void under Article 4. The
position, therefore, I is clear, if that authority is followed, that a conviction based on the award of a jirga in a
criminal case, even in the Special Areas, which include Loralai, should be regarded as without jurisdiction as
there would be no valid legal sanction behind it.

By Article 178; however, this Court is precluded from exercising any jurisdiction under the Constitution "in
relation to the Special Areas". The petitioners were transferred to the Mach Jail which is located within the
jurisdiction of this Court, and are undergoing their sentences there. Prima facie the conditions of exercise of
jurisdiction under Article 170 are satisfied inasmuch as the persons in respect of whom order is to be passed are
within the territorial limits of our juris diction. It is contended, however, by Mr. Anwar, on behalf of the State
that even this fact would not enable the Court to issue a writ in the present case in view of the bar raised by
Article 178. The question that falls for determination is the exact connotation of the expression "in relation to the
Special Areas" occurring in Article 178. Mr. Anwar contends that we would be exercising jurisdiction in relation
to the Special Areas, if we order the release of the petitioners even while they are detained within the jurisdiction
of this Court. In his view, this expression should be interpreted to preclude an order in any way connected with a
transaction that has taken place within a Special Area.

The learned Assistant Advocate‑General concedes that this Court would have jurisdiction in a case in which a
resi dent of a Special Area is accused of a crime committed within the territorial limits of this Court's
jurisdiction. Obviously, therefore, the expression "in relation to the Special Areas" is not comprehensive enough
to include reference to residents of Special Areas who commit a crime outside those areas in Pakistan. He also
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acknowledges that in civil litigation between two residents of a Special Area, which proceeds in a subor dinate
Court under the appellate jurisdiction of this Court the question of legality or otherwise of an order passed by an
authority in the Special Area based on a jirga award may be canvassed in the course of that litigation, as a
collateral issue. Article 178 excludes the jurisdiction of this Court and the Supreme Court but not of the
subordinate Courts in relation to special areas a truly anomalous position. Surely, in such a case if there be an
appeal or revision to this Court, there would be nothing to prevent this Court from pronouncing on the
correctness or otherwise of the decision of the subordinate Court on such an issue. It would thus appear that this
Court is not debarred from expressing an opinion upon the legality or otherwise of orders passed by the relevant
authorities in a Special Area, in all conceivable cases. Apparently what Article 178 enacts is that this Court shall
not entertain any appeal or revision from the orders passed by the autho rities in a Special Area, whether in a
civil or a criminal matter. To that extent, the Article entails the consequence that although the order in question
may be ultra vires of the Cons titution, it is not open to the residents of the Special Area concerned, under
Article 170 of the Constitution or under L any other provision of law, to approach this Court for redress. The
right to have the order declared to be invalid from a subordinate Court may exist but the remedy cannot be
obtained from this Court. The question resolves itself, into the problem whether this Court can issue a writ in the
nature of habeas corpus in respect of persons present within the area of its own jurisdiction, if they are being
detained under an order illegally passed by an authority over which this Court exercises no jurisdiction.

The learned Assistant Advocate‑General argued, on the authority of Birpal Singh v. Emperor (A I R 1946 F C 2),
that Article 178 should be regarded as a proviso to Article 170, thus effectually preventing this Court from
exercising the jurisdiction vested in it by Article 170, in respect of any matter pertaining to the Special Areas. In
that particular case, the finding of the Federal Court was that once a Court is satisfied that a person is being
detained under the Bengal State Prisoners Regulation (III of 1818), there is no jurisdiction under section 491,
Crimi nal P. C., which the High Court can exercise in the matter. However, at page 12 of the published report the
following observations occurs in the judgment of Spens, C. J.‑41

"Only one point, therefore, raised on behalf of the appellant in this case could, in our judgment, possibly have
enabled the Court to exercise jurisdiction under section 491, and that was if in fact the appellant is a person to
whom Regulation III does not or cannot apply at all".

Their Lordships of the Federal Court therefore apparently visualised cases, despite the prohibition contained in
sub section (3) of section 491 of the Code of Criminal Procedure in respect of persons detained under the Bengal
State Prisoners' Regulation, 1818, in which the High Court could interfere, provided the question of jurisdiction
was raised and subject of course, to the condition that the person concerned was within the local limits of the
High Court's jurisdiction. The position in the present case appears to us to be analogous to that situation.

In a Full Bench decision of this Court, in Criminal Mis cellaneous Case No. 193 of 1955 in re: ex‑Major General
Muhammad Akbar Khan this Court held that despite a provi sion in the relevant enactment ousting jurisdiction
of all Courts in respect of the Special Conspiracy Case proceedings, the constitutionality of the Act could be
inquired into and if it was ultra vires the Constitution, the Court could issue, an order under section 491,
Criminal P. C. in the nature of habeas corpus in respect of a person convicted by the Special Tribunal. Here
again the rational of the decision was the want of jurisdiction of the Tribunal that tried the Special Conspiracy
case prisoners.

In our opinion, while deciding the present petition, we shall be exercising our jurisdiction under Article 170 not
in relation to any Special Area but in relation to the area within our own jurisdiction inasmuch as the petitioners
are now confined in a jail which is located within that juris diction. The case is, therefore, taken out of Article
178 in terms and the bar is no longer applicable. Illegal detention of: a person is a continuing wrong. If the
petitioners had been retained in Loralai in a jail, obviously this Court could not have been approached for
redress, but now that they are amenable to the jurisdiction of this Court and their jailor or keeper is also subject
to the writ of this Court, there is no reason why the relief asked for should be denied to them. The ouster of
jurisdiction of this Court in all cases, should not be lightly assumed. We are of the view that in cases of the
present kind, Article 178 raises no bar to the exercise of our jurisdiction.
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The prayer with regard to the quashing of the conviction and sentences imposed on the petitioners, cannot,
however, be accepted, and no writ of certiorari can issue, because such an order would come within the mischief
of Article 178 of the Constitution. We, therefore, reject that prayer but there is no valid ground why this Court
should not interfere in the interest of the liberty of two Pakistan citizens who are being detained under an illegal
order within the jurisdiction of this Court. We, therefore, allow this petition and issue a writ in the nature of
habeas corpus directing the release of the petitioners from their present custody for with.

On the request of the learned Assistant Advocate‑General, we have directed the grant of a certificate for appeal
to the Supreme Court, in view of the fact that an important question of the interpretation of Article 178 of the
Constitution, is involved in this case. In view of the difficult nature of the question to be decided in the instant
case, we leave the parties to bear their own costs.

K. S. A. Writ of habeas corpus issued.

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