IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
PRESENT:  
Mr. Justice Umar Ata Bandial  
Mr. Justice Faisal Arab 
Mr. Justice Qazi Muhammad Amin Ahmed 
 
 
Civil Petition No. 4635 of 2018 
(On appeal from the judgment/order dated 
14.11.2018 of the Peshawar High Court, 
Peshawar 
passed 
in 
W.P. 
No. 
2688-
P/2018).  
 
 
Hidayat Ullah  
 
Petitioner(s) 
Versus 
Mohammad Younas and others  
Respondent(s) 
 
 
For the Petitioner(s) 
: Dr. Babar Awan, Sr. ASC 
 
 
 
For the Respondents 1-4 
Govt. of KPK 
For Federation  
: Syed Ishtiaq Haider, ASC 
Mr. Shumail Butt, AG KPK 
Mr. Aamir Rehman, Addl. AG 
 
 
 
Date of Hearing 
: 17.03.2020 
 
ORDER 
 
 
 
UMAR ATA BANDIAL, J.— One Muhammad 
Shafique, Chairman of Coal Company Qasim Khel Zarghum 
Khel was murdered on 02.07.2014 in the jurisdiction of Police 
Station MRS Kohat which is a settled area. FIR No. 426 dated 
02.07.2014 under Sections 302/324/392/427/34 PPC was 
registered at the aforesaid police station. The challan was put 
up before the learned ASJ-III Kohat who, after conducting 
Trial vide judgment dated 07.7.2018, convicted four accused 
persons and sentenced them to life imprisonment; one 
accused person was convicted and sentenced to four years 
imprisonment and proceedings under Section 512 Cr.P.C was 
undertaken against two accused persons and five accused 
C.P. NO. 4635 OF 2018 
 
 
 
 
2
were acquitted. Appeals against the said conviction and 
sentence are pending before learned Appellate Court.  
2. 
 
There was a civil controversy from the same 
occurrence but the cause of action in respect thereof arose in 
the tribal area of Frontier Region, Kohat. This dispute is 
between the Qasim Khel tribe from whose territory coal was 
being excavated by the company of which the deceased 
Muhammad Shafique was Chairman.  
3. 
 
Compensation for the coal extracted from the 
tribal area was paid under the local nomenclature of Sersaya. 
Consequent upon the murder of its Chairman, the Coal 
Company stopped the payment of Sersaya to the Qasim Khel 
tribal whose members were accused of having committed the 
murder. In the said background, Qasim Khel tribal heads 
applied to the Assistant Political Agent, Kohat (“APA”) under 
Section 8 of the Frontier Crimes Regulation, 1901 (“FCR”). 
The complaint pertains to the cessation of payments of 
Sersaya to the tribe. On this issue the matter was referred by 
the APA to the Council of Elders which affirmed the 
entitlement of the tribe to the claimed payment of Sersaya. In 
addition, as a passing reference the Council of Elders also 
granted what appears to be a license to the Coal Company to 
avenge the killing of Muhammad Shafique against one of the 
accused persons. Under Section 8 of the FCR only civil 
disputes can be referred to the Council of Elders whose 
findings dated 16.12.2015 is a recommendation for the APA 
to pass a decree in accordance therewith. Accordingly, such a 
C.P. NO. 4635 OF 2018 
 
 
 
 
3
decree was passed by the APA on 30.12.2015. The members 
of the Coal Company filed multiple appeals under Section 48 
of the FCR against the decree issued by the APA. After 
hearing the appeals, the Commissioner passed a number of 
orders all dated 06.05.2016 disposing of the appeals but in 
one respect, it interfered with and impliedly set aside the 
decision of the APA. In the appeal bearing No. 181 of 2016 
titled Fazal Raheem and others versus Hidayat Ullah and 
others, the Commissioner Kohat Division noted that the 
murder of Muhammad Shafique had taken place in a settled 
area in respect of which trial before the competent Court at 
Kohat was underway and, therefore, there was no need for 
further trial simultaneously before the APA.  
4. 
 
Consequently, 
it 
was 
determined 
by 
the 
Commissioner that the obligation of the Coal Company to pay 
Sersaya was intact and enforceable. The members of the Coal 
Company went in revision petition before the FATA Appellate 
Tribunal under Section 55A of the FCR. That appeal was also 
dismissed on 02.10.2017. Their review petition was also 
dismissed on 24.4.2018. Thereafter, the members of the Coal 
Company who are respondents before us filed a writ petition 
in the High Court praying for the setting aside of all the 
decisions given by the different fora below under the FCR. A 
perusal of the writ petition reveals that the principal ground 
of challenge was against the criminal verdict/opinion 
expressed by the Jirga which was disputed as being outside 
the purview of law. The learned High Court has given the 
C.P. NO. 4635 OF 2018 
 
 
 
 
4
impugned judgment dated 14.11.2018 which sets aside all 
the judgments of the FCR fora to hold that the criminal 
penalty of wreaking revenge upon the Qasim Khel tribesmen 
was set aside as being unlawful. Before us, the petitioner who 
is the member of the Qasim Khel tribe has urged that their 
right to Sersaya confirmed by all the fora under the FCR has 
been set aside by the impugned judgment without even 
discussing the entitlement to and necessity of such relief. 
Moreover, the writ petition filed by the respondents failed to 
challenge or give any grounds to interfere with the findings of 
all the FCR fora on Sersaya. 
5. 
 
Learned Advocate General has supported those 
submissions with the added ground that the orders passed by 
the relevant fora under the FCR are all dated prior to the 25th 
Constitutional Amendment which came into effect on 
31.5.2018. Thus, the recommendations of the Council of 
Elders dated 16.12.2015 until the decision of the review by 
the FATA Appellate Tribunal on 24.4.2018 predate the said 
Constitutional Amendment. Consequently, at the relevant 
time when the judgment was delivered the provisions of 
Article 247 (7) of the Constitution were in force. These 
constitutional provisions are to the following effect: 
“247 Administration of Tribal Areas.- (7) 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.”   
C.P. NO. 4635 OF 2018 
 
 
 
 
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6. 
 
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. Indeed this aspect 
of the case has not been considered by the impugned 
judgment at all. Moreover, insofar as the criminal laws advice 
suggested in the recommendations of the Jirga is concerned, 
the same has been disapproved and  thereby excluded by the 
order of the Commissioner Kohat under Section 48 of the FCR 
vide his order dated 06.05.2016. Therefore, any reinforcement 
of that view was not necessary. In any case, the trial of the 
accused persons has been concluded on 07.7.2018 resulting 
in conviction and punishment to several accused. There was 
no reason for the learned High Court to resurrect the 
recommendation 
by 
the 
Council 
of 
Elders 
for 
fresh 
adjudication.  
7. 
 
Learned counsel for the respondents is not in a 
position to dispute the applicability of Article 247 (7) of the 
Constitution to the facts of the case. Insofar as the civil relief 
of Sersaya is concerned, the respondents’ writ petition before 
the High Court in fact makes no specific grievance regarding 
Sersaya and only generally seeks to avoid the same through 
the prayer clause. Notwithstanding the fact that the 
impugned judgment fails to decide that issue, we consider 
C.P. NO. 4635 OF 2018 
 
 
 
 
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that consequent upon the conclusion of the proceedings 
before the FATA Appellate Tribunal the bar under Article 247 
(7) is complete. No mala fide is urged by the respondents for 
the High Court to disregard the ouster directed in the 
aforenoted Constitutional provisions.  
8. 
 
Furthermore, insofar as the criminal law advice 
recommended by the Council of Elders is concerned, the 
same is without jurisdiction under Section 8 read with 
Section 9 of the FCR. In any event, it has been impliedly set 
aside by the order of the Commissioner Kohat vide his order 
dated 06.05.2016. More importantly, once the matter has 
been dealt with and decided on merits by a competent Court 
of law, Article 13 of the Constitution does not allow the 
recommendation, even if, it has any validity to remain in 
existence.  
9. 
 
In the circumstances, the impugned judgment of 
the High Court is set aside and this petition is converted into 
appeal and allowed.      
 
                           
  
 
  
 
 
 
Judge 
 
 
 
Judge 
 
 
 
 
Judge  
Islamabad  
17.03.2020 
Naseer  
 
Approved for reporting  
