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P L D 1995 SC 281

GOVERNMENT OF N.W.F.P.
V/S
MUHAMMAD IRSHAD AND OTHERS
FRAME : 3

Per: Saad Saood Jan, J.

(a) Constitution of Pakistan (1973), Articles 2-A, 247, 8, 7, 25.

It will be noticed that the definition of the ‘State’ as given in this Article is fairly wide; on its plain reading it would appear to encompass all authorities which perform executive and legislative functions in any party of the country. So far as the Areas are concerned, the President and the Governor while exercising their powers under Article 247 stand in the position of the Federal and the Provincial Governments. There is therefore no reason why they should be excluded from the definition of the ‘State’ so far as the Areas are concerned. In fact, to hold otherwise, would tend to deprive a sizeable part of the Pakistan citizenry of the Fundamental Rights enshrined in the Constitution which could never have been the intention of the Constitution makers. [p. 297]B

There is no doubt weight in the observation of the High Court that that the dual system of justice introduced by the Regulation places the residents of the Areas in less advantageous position as compared to their fellow countrymen living in the other parts of Pakistan, but then it will be noticed, article 247 itself envisages that the laws that may be made by the President or the Governor or the two together for the Areas may be different from those prevailing in the rest of the country. Thus, clause (3) of the Article permits the President and the Governor to modify the laws made by the Parliament or the Provincial Assembly before extending them to the Areas.This by itself introduces an element of discrimination so far as the Areas are concerned. Apart from the clause (4) which empowers the President and the Governor to make Regulations for the Area contains a non obstinate clause; consequently, a regulation made by them cannot be declared invalid by mere reason of the fact that it is in conflict with the other provisions of the Constitution. There is, therefore, some difficulty in holding that a law made by the President or Governor under Article 247 can be declared void on the ground that it is different from the corresponding law in force in the other parts of Pakistan and is thus in conflict with the Fundamental Rights relating to equality of treatment.

However, there is another aspect of the matter. No doubt, the Federal Government and the Parliament, the Provincial Government and the Provincial Assembly have been precluded by Article 247 of the Constitution from exercising their respecting functions in the Areas and the same have been entrusted to the President and the Governor have and will have a free-hand for all times to come in making laws of their own choosing for the Areas. In this context reference may be made to the Objectives Resolution which now forms a substantive part of the Constitution (see Article 2A). One of the clauses of the Resolution declares that in Pakistan the State power and the authority shall be exercised by the chosen representatives of the people. Although in view of the conditions that prevail there the Constitution- makers did deviate from the said declaration when making special provisions for the administration of the Tribal Areas but then they also envisaged the ultimate raising of the quality of the administration therein to the same status and position as was enjoyed by the rest of the country. In this context clause (6) of Article 247 of the Constitution needs to be noticed.[p. 297]C

The clause when read with the Objectives Resolutions places a special responsibility on the President and also on the Governor in respect of the Area. The extraordinary power that has been vested in them must be exercised in manner that would facilities the introduction of representative administration in those Areas and thus bring them it par with the other parts of Pakistan. Any legislative and administrative measure which obstructs or delays this ultimate goal must be held to be beyond the bounds of this power.

There is no doubt whatsoever that the President and the Governor are high functionaries of the State and one can normally assume that in exercising their power under Article 247 they are will be motivated by a high sense of responsibility but then it has also to be kept in mind that they are not the chosen representatives of the people for exercising legislative and executive powers in the Areas. The theme throughout our Constitution is of responsible Government which is answerable to the people. It is therefore necessary that when the President or the Governor make a law for the Areas which is different from that prevailing in the rest of the country it must be accompanied by good reasons. The omission in this regard would possibly lay the President of the Governor open to the charge of arbitrariness and on that account compromise the validity of their action whether it is in the legislative field or it relates to a purely administrative act.

As already noticed, the administration of the States of Dir, Swat and Chitral was taken over first by the Government of West Pakistan and later, after dissolution of the said Province, by the North-West Frontier Province. The Court system which existed in the rest of the Province was introduced in these States as well. The Courts thus set up continued to function till July 1975 when by the Regulations under consideration slight inroads were made in their jurisdiction in respect of comparatively less serious criminal matters and almost petty civil disputes. However, that may be, a year and half later the Regulations were extensively amended and as a result thereof the Tribunals were replaced by Jirgas and were given the exclusive jurisdiction over serious crimes and civil disputes. Learned counsel appearing before us did not care to given reasons why the then existing judicial system had been replaced. There can be little doubt that the Regulations, trespassed as they did on the jurisdiction of the ordinary Courts, were pieces of retrograde legislation and in the absence of any visible justification, constituted in a way a negation of the goal set out in clause (6), ibid, and the Objectives Resolution. Although highly qualified and trained judicial officers, well-equipped to administer relevant laws relating to serious crimes and civil disputes, continued to be available in the Areas yet, as a consequence of the Regulations, their jurisdiction was drastically curtailed and entrusted to persons of little academic and professional qualifications. As noticed, the Jirgas are presided over by Naib-Tehisldars/Tehsiladars who in the hierarchy of the Courts existing elsewhere in Pakistan do not exercise powers higher than that of a Magistrate of the First Class. It is true that power to make effective orders vests in the Deputy Commissioner but then he too may not have any grounding in law. The appeals and revisions from the order of the Deputy Commissioner do not lie before the District and Sessions Judge or the High Court but before the functionaries occupying positions in the executive. It is thus a system entirely controlled and administered by non-judicial functionaries of the Province. It is true that Article 247 overrides the other provisions of the Constitution but then the President and the Governor ought not to lightly ignore the Constitutional mandate as incorporated in Article 175(3) that the Judiciary should be separated from the Executive.

The argument that the Jirga system as introduced by the Regulations in question in better suited to the needs of the Areas is of extremely doubtful validity.[p.298]D

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