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Petitioner: ABDUR RASHID VS Respondent: ADDITIONAL SECRETARY, HOME AND TRIBAL AFFAIRS, GOVERNMENT OF N.-W. F. P., PESHAWAR
1999 Y L R 2619
1999 Y L R 2619
[Peshawar]
Before Mian Muhammad Ajmal and Muhammad Azam Khan, JJ
ABDUR RASHID‑‑‑Petitioner
versus
ADDITIONAL SECRETARY, HOME AND TRIBAL AFFAIRS, GOVERNMENT OF N.‑W.F.P., PESHAWAR and 6 others‑‑‑Respondents
Writ Petition No.49 of 1994, decided on 2nd June, 1999.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Quashing of trial held by Jirga‑‑‑Contention was that jurisdiction of Jirga over certain offences contained in the Pakistan Penal Code including S. 302, P. P. C. provided by Provincially Administered Tribal Areas Regulation (1 of 1975) having been abolished, and no law having been provided on the subject by the Government as required by the Supreme Court judgment reported as PLD 1989 SC 633, a vacuum in Malakand Division had occurred which could be rectified by applying Qur'an and Sunnah as per strict direction of the Supreme Court‑‑ Further contention was that the trial of accused by Jirga in state of said vacuum was without jurisdiction and without lawful authority‑‑‑Held, accused had already undergone the conviction and sentence under S.302, P. P. C. awarded by the Jirga in accordance with the prevailing law in Malakand Division and the Constitutional petition had become infructuous to a very great extent which was dismissed as such.
PLD 1989 SC 633 and PLD 1990 SC 1172 ref.
Zakiuddin for Petitioner.
Imtiaz Ali, A.A.‑G. for Respondents Nos. to 5.
Maazullah Barkandi for Respondent No.7.
Date of hearing: 2nd June, 1999.
JUDGMENT
MUHAMMAD AZAM KHAN, J.‑‑ Abdur Rashid son of Raza Khan, petitioner, has approached this Court through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, praying for a declaration that the impugned order of respondent No. 1, dated 21‑11‑1993, order of respondent No.2, dated 17‑12‑1992, order of respondent No.3, dated 26‑5‑1992 and the award of the Jirga, dated 31‑5‑1992 as illegal, without jurisdiction, without lawful authority and of no legal effect.
2. The petitioner averred that he was charged in case F.I.R. No.486, dated 2‑4 1989 of Police Station Mingora, under section 302, P.P.C. for the murder of Muhammad Bashar, the father of respondent No.7, that before the registration of the aforesaid case, Shariat Appellate Bench of the Supreme Court vide its decision reported in PLD 1989 SC page 533, declared section 302, P.P.C. as repugnant to the injunction of Islam. A review petition was preferred by the State which also failed and was reported in PLD 1990 SC page 1172, and the original judgment, dated 5‑7‑1989 had to be effected from 12th day of Rabi‑ul‑Awwal 1411 A.H. Thereafter the law contained in Pakistan Penal Code was abolished as provided in the PATA Regulation I of 1975, provided for the jurisdiction of Jirga over certain offences contained in the Pakistan Penal Code including 302, P.P.C.
3. That the judgment of the Supreme, Court required the Government to provide the law on the subject failing which the law shall be Qur'an and Sunnah but, no law on the subject was provided under Article 247 of the Constitution and, therefore, there occurred a vacuum in Malakand Division which could be rectified by applying Quran and Sunnah as per strict direction of the Supreme Court of Pakistan aforesaid discussed. In such circumstances the trial of the petitioner by Jirga in state of a vacuum was without jurisdiction and without lawful authority.
4. Having considered the arguments of the learned counsel for the parties we are of the view that the petitioner has already undergone the conviction and sentence under section 302, P.P.C. awarded by the Jirga in accordance with the prevailing law in Malakand Division. The writ petition being infructuous to a very great extent is dismissed with no order as to costs.
N.H.Q./404/P
Petition dismissed