 
 
 
IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: MR. JUSTICE MIAN SAQIB NISAR 
 
 
MR. JUSTICE FAISAL ARAB 
 
 
MR. JUSTICE IJAZ UL AHSAN 
 
 
CIVIL APPEALS NO.1023, 1024, 1357, 1358 AND 2155 OF 2016 
(Against the judgment dated 19.1.2016 of the Peshawar High 
Court, Peshawar passed in Writ Petitions No.2485-P and 506-
A/2014) 
 
 
1. 
 Abdul 
Haq 
Khan 
etc. 
Vs. 
Haji 
Ameerzada etc. 
 
 In CA 1023/2016 
2. 
 Deedar 
Khan 
etc. 
Vs. 
Maulana 
Asmatullah etc. 
 
 In CA 1024/2016 
3. 
 Malik Qadam Khan etc. Vs. Haji 
Ameerzada etc. 
 
 In CA 1357/2016 
4. 
 Malik Qadam Khan etc. Vs. Maulana 
Muhammad Asmatullah etc. 
 
 In CA 1358/2016 
5. 
 Government of KPK through Chief 
Secretary, Civil Secretariat, Peshawar 
etc. Vs. Haji Ameerzada etc. 
 
 In CA 2155/2016 
 
For the appellant(s): 
Mr. Aitzaz Ahsan, Sr. ASC 
(In CAs 1023 & 1024/2016) 
 
Sardar Abdul Raziq Khan, ASC 
(In CAs 1357 & 1358/2016) 
 
Mr. Waqar Ahmed Khan, Addl.A.G. KPK 
Mr. Mugees Sana Ullah, Assistant 
Commissioner, PATA 
(In CA 2155/2016) 
 
 
For the respondent(s): 
Mr. Arshad Zaman Kayani, ASC 
Ch. Akhtar Ali, AOR 
(For respondents 1 to 7 in CA 1023/2016) 
 
Syed Iftikhar Hussain Gillani, Sr. ASC 
(For respondents 1 to 5 in CA 1024/2016) 
 
Mr. Waqar Ahmed Khan, Addl.A.G. KPK 
(For respondents 6 to 11 in CA 1023/2016) 
 
Mr. Arshad Zaman Kayani, ASC 
Ch. Akhtar Ali, AOR 
(For respondent No.1 in CA 1357/2016) 
Civil Appeal No.1023 of 2016 etc. 
 
 
 
 
 
 
        -: 2 :- 
 
 
Mr. Waqar Ahmed Khan, Addl.A.G. KPK 
(For respondents 8 to 13 in CA 1357/2016) 
 
Mr. Imtiaz Ali, ASC 
(For respondents 1, 11 to 15 in CA 1023/2016) 
 
 
For Federation: 
Mr. Sajid  Ilyas Bhatti, DAG 
 
 
Dates of hearing: 
22.11.2016 & 23.11.2016 
… 
JUDGMENT 
 
 
 
MIAN SAQIB NISAR, J.- These appeals, with the leave of 
the Court, involve the sole proposition of law whether the re-
constitution of districts in the Provincially Administered Tribal Areas 
(PATA) of Khyber Pakhtunkhwa (KPK) is violative of the provisions of 
Article 246 of the Constitution of the Islamic Republic of Pakistan, 1973 
(the Constitution). 
2. 
 
The facts are that vide notification dated 20.9.1976, issued 
under Section 3 of the West Pakistan District Re-constitution 
Ordinance, 1960 (the Ordinance), Hazara District was split into three 
districts, namely, Abbottabad, Mansehra and Kohistan (Kohistan comprised 
of 159 villages). Through another notification of even date issued under 
Sections 5 and 6 of the West Pakistan Land Revenue Act, 1967 (the Act), 
Hazara District ceased to be a part of Peshawar Division, and was to be 
known as Hazara Division consisting of the aforementioned three 
districts. Kohistan District comprised of Sub-division and Tehsil Dassu 
which in turn comprised of the 159 villages of Kohistan (settled area). 
Thereafter by a notification dated 1.10.1976 issued by the Governor, 
KPK (note:- the notification does not state under which law it was issued), 154 
villages of Swat District were included in Kohistan District (note:- Swat is 
admittedly a PATA). On 30.12.1976, the Constitution (Sixth Amendment) 
Act, 1976 (6th Amendment) was passed which added the phrase “tribal area of 
Kohistan district” to Article 246(b)(i) of the Constitution. Another 
Civil Appeal No.1023 of 2016 etc. 
 
 
 
 
 
 
        -: 3 :- 
 
notification dated 8.10.1977 was issued under Sections 5 and 6 of the 
Act which partially modified the second notification dated 20.9.1976 
under which a new Sub-division and Tehsil Pattan were created and the 
154 villages (formerly) of Swat District were made a part thereof. 
Therefore at this point of time, Kohistan District comprised of two 
Tehsils, namely Dassu (comprising 159 villages i.e. settled area) and Pattan 
(comprising 154 villages i.e. former Swat District villages which were PATA). On 
20.10.1995 a notification was issued under Sections 5 and 6 of the Act 
which created another Sub-division in Kohistan District, i.e. Palas, and 
for this purpose some of the villages which earlier formed a part of Sub-
division Pattan (500 villages in 10 Union Councils) were now made part of 
Palas. Thus at this point, Kohistan District comprised of three Sub-
divisions and Tehsils, i.e. Dassu, Pattan and Palas. Vide notification 
dated 23.8.2007 issued under Section 6(1) and (2) of the NWFP Land 
Revenue Act, 1967 (the West Pakistan Land Revenue Act, 1967 was renamed thus) 
Tehsil Kandia was created (note:- Kandia and Dassu are settled areas). Thereafter 
vide notification dated 15.1.2014 issued under Sections 5 and 6 of the 
KPK Land Revenue Act, 1967 (the NWFP Land Revenue Act, 1967 was renamed thus) 
Kohistan (Lower) District was carved out of the existing Kohistan 
District; the former comprised of Sub-divisions and Tehsils Pattan and 
Palas while the latter comprised of Sub-divisions and Tehsils Dassu and 
Kandia. It is instructive to note at this juncture that a notification dated 
7.2.2014 partially amended the notification dated 15.1.2014, in that 63 
villages out of the 154 villages formerly of Swat District were removed 
from Tehsil Pattan and 20 were instead included in Tehsil Dassu, whilst 
the remaining 43 were included in Tehsil Kandia. Thus both Kohistan 
District and Kohistan (Lower) District comprised of settled areas as well 
as PATA. This act of splitting Kohistan District vide notification dated 
Civil Appeal No.1023 of 2016 etc. 
 
 
 
 
 
 
        -: 4 :- 
 
15.1.2014 was challenged through eight constitutional petitions. The 
first Writ Petition No.79-A/2014 titled “Action Committee Palas Vs. 
Secretary to Govt. of KPK Revenue Department, Civil Secretariat, 
Peshawar and others” was dismissed on 24.6.2014 as not being 
maintainable. Of the remaining seven constitutional petitions, five were 
dismissed through the impugned judgment (note:- none of the six dismissals 
have been challenged before us). However vide the same judgment, two of them, 
Writ Petition No.2485-P/2014 titled “Haji Amirzahda and others Vs. 
Secretary to Govt. of KPK Revenue Department, Civil Secretariat, 
Peshawar and others” and Writ Petition No.506-A/2014 titled “Maulana 
Muhammad Asmatullah and others Vs. Secretary to Govt. of KPK 
Revenue Department, Civil Secretariat, Peshawar and others” were 
partially allowed. In all these constitutional petitions four issues were 
raised:-  
 
1. 
Whether the impugned action of the Government of KPK is 
ultra vires on the ground that the creation of districts could 
only be made by the Provincial Government under the 
Ordinance; 
2. 
Whether the impugned action of the Provincial Government 
was 
adverse 
to 
public 
interest 
and 
resulted 
in 
administrative difficulties, practical inconvenience and 
difficulties for the local population; 
3. 
Whether the impugned action of the Provincial Government 
was illegal for being based on mala fide; 
4. 
Whether the impugned action of the Provincial Government 
offends the mandate of Article 246 of the Constitution, in 
that the constitutional status of PATA forming part of 
Kohistan District, has been disturbed without any 
constitutional amendment. 
 
Civil Appeal No.1023 of 2016 etc. 
 
 
 
 
 
 
        -: 5 :- 
 
The learned High Court decided the first three issues against the writ 
petitioners by holding that:- 
 
1. 
The assertion of the writ petitioners that the action of the 
Provincial Government lacked authority for not having been 
invoked under the Ordinance of 1960 was not legally 
correct. The impugned action of the Provincial Government 
fell 
within 
the 
authority 
vested 
in 
the 
Provincial 
Government under the enabling provisions of the Act; 
2. 
The concerns raised in issue No.2, unless patently absurd 
or unreasonable, were not justiciable. Thus it was best to 
leave it to the wisdom of the Executive Authority of the 
State to maintain the trichotomy of power as engrained in 
the Constitution; 
3. 
The general and bald assertions of ill will and mala fide 
attributed in the writ petitions were without particulars and 
would not survive the legal test laid down by the Supreme 
Court. The ground of mala fide taken in the writ petitions 
did not fulfil the condition precedent to successfully 
challenge the impugned action on this basis. 
 
The findings on these issues going against the writ petitioners have not 
been challenged before this Court and have therefore attained finality. 
However, the two constitutional petitions mentioned above were allowed 
on the fourth issue, as the learned High Court held that the PATA 
excluded from Kohistan District and included in the newly established 
Kohistan (Lower) District did not figure anywhere in Article 246 of the 
Constitution thus the same could not be regarded as territory forming 
part of PATA, and hence the impugned action of the Provincial 
Government had disturbed the constitutional status of the said area. 
2. 
 
Mr. Aitzaz Ahsan, learned counsel for the appellants in Civil 
Appeals No.1023 and 1024/2016 made the following submissions:- 
 
Civil Appeal No.1023 of 2016 etc. 
 
 
 
 
 
 
        -: 6 :- 
 
1. 
Article 246(b) of the Constitution merely identifies the 
physical areas forming part of PATA; 
2. 
The inclusion or exclusion of these identified areas (PATA) in 
any other district will not change their character and PATA 
status; 
3. 
PATA’s status can only be changed in accordance with 
Article 247(6) of the Constitution which process has not 
been undertaken in the matter and therefore the said area 
retains its PATA status; 
4. 
The constitution or reconstitution of districts is not as 
sacred as the constitutional limits of the provinces which 
can only be altered in terms of the mandate of Article 
239(4) of the Constitution; 
5. 
The constitution or reconstitution of districts is an 
administrative function of the executive and shall not be 
interfered with in the constitutional jurisdiction if such 
executive authority has been properly and fairly exercised; 
6. 
On facts, the administrative changes made (the splitting of 
Kohistan into two districts) are reasonable and in the public 
interest considering the size and terrain of the original 
Kohistan District.  
 
He relied upon the judgment reported as The Collector Customs Vs. 
Abdul Jabbar and others (PLD 2005 SC 247). 
3. 
 
Sardar Abdul Raziq Khan, learned counsel for the 
appellants in Civil Appeals No.1357 and 1358/2016 adopted the 
arguments of Mr. Aitzaz Ahsan, learned ASC. However he added that 
the Government of KPK had addressed the grievances of the people of 
these areas by issuing a revised notification dated 7.2.2014 returning 
some of the villages to their respective tehsils. He argued that this 
subsequent notification was never challenged yet the learned High 
Court set it aside.  
Civil Appeal No.1023 of 2016 etc. 
 
 
 
 
 
 
        -: 7 :- 
 
4. 
 
The 
learned 
Advocate 
General 
in 
Civil 
Appeal 
No.2155/2016, while adopting the arguments of Mr. Aitzaz Ahsan, 
learned ASC, submitted that Article 246 of the Constitution merely 
defines the tribal areas and identifies their boundaries. It does not 
confer territorial integrity to the areas mentioned therein and does not 
bar the competent authority from making it a part of a district by 
attaching or detaching it from a settled area. Further, while referring to 
Section 4 of the Ordinance and Article 247(1) of the Constitution, he 
contended that no authorization is required from the Federal 
Government in this regard, rather the Governor is the competent 
authority to take action in this case. 
5. 
 
On the other hand, Mr. Arshad Zaman Kiyani, learned 
counsel for the respondents in Civil Appeals No.1023 and 1357/2016 
(states that his concise statement, filed vide C.M.A.No.6393/2016 should be read as part of his 
arguments) submitted that as shown in the map appearing at page 13 of 
the noted C.M.A., the area east of the Indus River is settled whereas the 
area west of the Indus River is tribal, and the culture, customs and 
language etc. of both east and west parts are entirely different. Further, 
while referring to Article 246 of the Constitution, he argued that there is 
a distinction between the word “means” appearing in Article 246(b) and 
the word “includes” appearing in Article 246(c). He submitted that by 
virtue of the splitting of Kohistan the meaning of PATA changes and this 
impinges on Article 246(b). Lastly he argued that in paragraph D of the 
memo of appeal (Civil Appeal No.1023/2016) the appellants have admitted the 
case of the respondent which is adequate to non-suit the appellants. 
6. 
 
Syed Iftikhar Hussain Gillani, learned counsel for the 
respondents in Civil Appeal No.1024/2016 stated at the very outset 
that in order to understand the proposition in hand, it is important to 
Civil Appeal No.1023 of 2016 etc. 
 
 
 
 
 
 
        -: 8 :- 
 
appreciate the scheme of the Constitution vis-à-vis the tribal areas. He 
referred to Articles 103 and 104 of the Constitution of 1956 which 
contained the concept of special areas (now called tribal areas). The term 
tribal areas was first introduced in Articles 223 and 223A of the 
Constitution of 1962 which provisions according to him were pari 
materia to Articles 246 and 247 of the present Constitution. He pointed 
out that previously, there was no concept of PATA, only Federally 
Administered Tribal Areas, and the former concept was introduced in 
Articles 260 and 261 of the interim Constitution of 1972 which is 
reflected in Articles 246 and 247 of the present Constitution. He argued 
that since 1956 the scheme has been the same throughout in that 
anything to do with a tribal area, particularly one which is provincially 
administered, requires the involvement of the Federal Government. In 
this context he stated that wherever the Constitution talks about 
administration by the Governor, it must be with the prior approval of 
the President, and in the instant case, whilst issuing the impugned 
notification the Provincial Government had tried to bypass the Federal 
Government which is not permissible under the constitutional scheme. 
He argued that the inclusion of the villages of Swat District (PATA) into 
Kohistan District vide notification dated 1.10.1976 was unlawful and 
this is bolstered by the fact that subsequently the 6th Amendment was 
brought about in order to give cover to this act by adding the “tribal 
area in Kohistan District” to Article 246(b)(i) of the Constitution, and 
interestingly, in the 6th Amendment it was specifically mentioned  
that it would take effect from 1.10.1976 which is the date  
of the said notification, otherwise there was no need to specify  
the 
date. 
He 
vehemently 
argued 
that 
though 
the 
President  
can exclude, and not include, any area from a tribal area  
Civil Appeal No.1023 of 2016 etc. 
 
 
 
 
 
 
        -: 9 :- 
 
in accordance with Article 247(6) of the Constitution, it is only 
Parliament which has the power to include an area as a tribal area 
through a constitutional amendment, as it had done vide the 6th 
Amendment. PATA are set out in Article 246(b)(i) of the Constitution 
and any area not included or mentioned therein is not a PATA, therefore 
until and unless Kohistan (Lower) District was added into the said 
article by virtue of a constitutional amendment, the character of the 
areas listed therein would stand changed in that they would cease to be 
tribal area(s) for the purposes of our Constitution. He further stated 
that a district with part-settled and part-tribal area could not be created 
as it was against the scheme of the Constitution. Finally he submitted 
that the notifications have been issued under the Act which has never 
been extended to Kohistan District, and are therefore invalid on this 
score as well.  
7. 
 
Mr. Imtiaz Ali, learned counsel for respondents Nos.1 and 
11 to 15 in Civil Appeal No.1358/2016 adopted the arguments of Mr. 
Syed Iftikhar Hussain Gillani, learned Sr. ASC and additionally stated 
that it is clear from Article 246(b)(i) of the Constitution that the phrase 
“which includes Kalam” therein was subsequently added which reflects 
the fact that Kalam was not part of Swat initially and this connotes that 
PATA cannot be changed without a constitutional amendment. 
8. 
 
The learned Additional Attorney General stated that certain 
tribal areas were taken out of D. I. Khan and Bannu and put into Lakki 
Marwat and Tank Districts by virtue of the 18th Amendment (note:- this was 
in fact done by the 19th Amendment which change exists till date) and this means that 
the tribal areas of Kohistan (Lower) District could only have been 
created through a constitutional amendment.  
Civil Appeal No.1023 of 2016 etc. 
 
 
 
 
 
 
        -: 10 :- 
 
9. 
 
Mr. Aitzaz Ahsan, learned Sr. ASC stated in rebuttal that 
drawing an analogy with Abdul Jabbar’s case (supra) it could be said 
that the Act was deemed to be applicable to the tribal areas in Kohistan 
by virtue of the fact that the Act was previously made applicable to Swat 
District, as Kohistan District was subsequently carved out of Swat for 
administrative purposes. He further stated that the phrase “tribal area 
of Kohistan” featuring in Article 246(b)(i) of the Constitution itself 
envisages districts consisting of both settled and tribal areas.  
10. 
 
Heard. Before answering the question identified in the 
opening paragraph of this opinion, let us first examine the meaning and 
purpose of a “district”. A district is basically a type of territorial division 
usually made for administrative or electoral purposes, etc. Territories 
are marked off as districts to facilitate local governments in terms of 
administration. In Pakistan, districts are the third tier of administrative 
division, featuring after provinces and divisions. The creation and 
variation of the limits of districts was governed by the West Pakistan 
Land Revenue Act, 1967. At present for the purposes of KPK, it is the 
KPK Land Revenue Act, 1967 which is in force. The relevant provisions 
are contained in Section 6 thereof which read as under:- 
 
“6. 
Division to be divided into Districts and District 
into Subdivision, etc. (1) 
Each Division shall be 
divided into such Districts, and each District may be 
divided into such Sub-Divisions or Tehsils (which also 
include Talukas) as Government may, by notification, 
specify; and each sub-Division may consist of Tehsils and 
having such limits, as Government may, by notification, 
direct. 
 
Civil Appeal No.1023 of 2016 etc. 
 
 
 
 
 
 
        -: 11 :- 
 
(2) 
Government may, by notification, vary the number 
and limits of Division, Districts, Sub-Division or Tehsils 
in the Province.” 
 
Therefore it is the Government which has the power to divide a division 
into districts and vary the number and limits of such districts by 
issuing a notification under the Act. 
11. 
 
Let us now discuss the concept of Provincially Administered 
Tribal Areas or PATA. Article 246 of the Constitution deals with PATA. 
Prior to the 6th Amendment, Article 246 read as follows:- 
 
“246. In the Constitution,– 
(a) 
“Tribal Areas” means the areas in 
Pakistan which, immediately before the 
commencing day, were Tribal Areas, and 
includes— 
(i) 
the Tribal Areas of Baluchistan and 
the North-West Frontier Province; 
and 
(ii) 
the former States of Amb, Chitral, 
Dir and Swat; 
(b) 
“Provincially Administered Tribal Areas” 
means— 
(i) 
the districts of Chitral, Dir and 
Swat 
(which 
includes 
Kalam), 
Malakand Protected Area, the 
Tribal Area adjoining Hazara 
district and the former State of 
Amb; and 
(ii) 
Zhob 
district, 
Loralai 
district 
(excluding Duki Tehsil), Dalbandin 
Tehsil of Chagai district and Marri 
and Bugti tribal territories of Sibi 
district; and  
Civil Appeal No.1023 of 2016 etc. 
 
 
 
 
 
 
        -: 12 :- 
 
(c) 
“Federally Administered Tribal Areas” 
includes— 
(i) 
Tribal Areas adjoining Peshawar 
district; 
(ii) 
Tribal 
Areas 
adjoining 
Kohat 
district; 
(iii) 
Tribal Areas adjoining Bannu 
district; 
(iv) 
Tribal Areas adjoining Dera Ismail 
Khan district; 
(v) 
Bajaur in Malakand Agency; 
(vi) 
Mohmand Agency; 
(vii) 
Khyber Agency; 
(viii) 
Kurram Agency; 
(ix) 
North Waziristan Agency; and 
(x) 
South Waziristan Agency.” 
 
After the 6th Amendment was introduced, Article 246 read as below:- 
 
“246. In the Constitution,– 
(a) 
“Tribal Areas” means the areas in 
Pakistan which, immediately before the 
commencing day, were Tribal Areas, and 
includes— 
(i) 
the Tribal Areas of Baluchistan and 
the North-West Frontier Province; 
and 
(ii) 
the former States of Amb, Chitral, 
Dir and Swat; 
(b) 
“Provincially Administered Tribal Areas” 
means— 
(i) 
the districts of Chitral, Dir and 
Swat (which includes Kalam), the 
Tribal Area in Kohistan district, 
Malakand Protected Area, the 
Tribal Area adjoining Mansehra 
Civil Appeal No.1023 of 2016 etc. 
 
 
 
 
 
 
        -: 13 :- 
 
district and the former State of 
Amb; and 
(ii) 
Zhob 
district, 
Loralai 
district 
(excluding Duki Tehsil), Dalbandin 
Tehsil of Chagai district and Marri 
and Bugti tribal territories of Sibi 
district; and  
(c) 
“Federally Administered Tribal Areas” 
includes— 
(i) 
Tribal Areas, adjoining Peshawar 
district; 
(ii) 
Tribal 
Areas 
adjoining 
Kohat 
district; 
(iii) 
Tribal Areas adjoining Bannu 
district; 
(iv) 
Tribal Areas adjoining Dera Ismail 
Khan district; 
(v) 
Bajaur Agency; 
(va) 
Orakzai Agency; 
(vi) 
Mohmand Agency; 
(vii) 
Khyber Agency; 
(viii) 
Kurram Agency; 
(ix) 
North Waziristan Agency; and 
(x) 
South Waziristan Agency.” 
(Emphasis supplied) 
 
A bare reading of Article 246(b) of the Constitution suggests that it is a 
clause which defines and describes PATA and according to sub-part (i) 
thereof, the tribal areas of Kohistan District have been declared to be 
PATA. We find that the mention of particular names of certain districts 
or areas in Article 246(b) is only for the purposes of describing the 
geographical limits of PATA or to mark a certain area as a tribal area. It 
is not the “districts” mentioned therein which have attained territorial 
sanctity, rather it is the area identified as PATA which has attained 
Civil Appeal No.1023 of 2016 etc. 
 
 
 
 
 
 
        -: 14 :- 
 
territorial sanctity. This fine distinction needs to be appreciated. To 
attach such sanctity to districts would be to equate them with 
provinces, which interpretation to our mind is incorrect keeping in view 
the scheme of the Constitution. In this context it is relevant to 
reproduce Article 239(4) of the Constitution which reads as under:- 
 
“A Bill to amend the Constitution which would have the 
effect of altering the limits of a Province shall not be 
presented to the President for assent unless it has been 
passed by the Provincial Assembly of that Province by the 
votes of not less than two-thirds of its total membership.” 
 
Article 239(4) reproduced above essentially confers territorial sanctity 
upon the geographical limits of a province by providing that such limits 
cannot be changed without a constitutional amendment. Conversely, 
there is no such bar in the Constitution which prevents the limits of 
districts, whether in relation to a PATA or not, from being changed 
without a constitutional amendment. To impute such a bar into Article 
246(b) would be to read into it something which is not there and is not 
envisaged by the Constitution. This is not a correct interpretation of the 
law. The reading in of words or meaning into a statute when its 
meaning is otherwise clear is not permissible. As a matter of statutory 
interpretation, Courts generally abstain from providing casus omissus 
or omissions in a statute, through construction or interpretation. An 
exception to this rule is, when there is a self-evident omission in a 
provision and the purpose of the law as intended by the legislature 
cannot otherwise be achieved, or if the literal construction of a 
particular provision leads to manifestly absurd or anomalous results, 
which could not have been intended by the legislature. However, this 
Civil Appeal No.1023 of 2016 etc. 
 
 
 
 
 
 
        -: 15 :- 
 
power is to be exercised cautiously, rarely and only in exceptional 
circumstances. The creation or variation of the limits of a district is not 
governed by the Constitution, but as mentioned in the earlier portion of 
this opinion, by the Act. The limits of a tribal area, in this case PATA, 
are most certainly governed by the Constitution and the creation or 
increase in the limits of PATA can only take place through a 
constitutional amendment by amending the list provided in Article 
246(b). The reduction in the limits of a tribal area is governed by Article 
247(6) of the Constitution according to which the President has the 
authority to declare that a tribal area or a part thereof has ceased to be 
a tribal area. The said article is reproduced herein below for ease of 
reference:- 
 
“247(6) 
The President may, at any time, by Order, 
direct that the whole or any part of a Tribal Area shall 
cease to be a Tribal Area, and such Order may contain 
such incidental and consequential provisions as appear to 
the President to be necessary and proper: 
 
 
Provided that before making any Order under this 
clause, the President shall ascertain, in such manner as 
he considers appropriate, the views of the people of the 
Tribal Area concerned, as represented in Tribal jirga.” 
 
There is no bar in the Constitution that prevents a district from 
comprising both a settled area and PATA. Furthermore, as stated by Mr. 
Aitzaz Ahsan, learned ASC, the status of the areas marked as PATA 
which fell within Kohistan District and Kohistan (Lower) District was 
not changed despite the change in district. Such areas never ceased to 
be tribal areas as the process provided in Article 247(6) of the 
Constitution to remove their PATA status was never invoked. These 
Civil Appeal No.1023 of 2016 etc. 
 
 
 
 
 
 
        -: 16 :- 
 
areas remained PATA for all intents and purposes and they were simply 
made part of a different district(s) for the purposes of local government 
administration. 
12. 
 
Now that we have established that it is not the Constitution 
but the Act which governs the creation and variation of limits of 
districts, an ancillary question that arises is whether the Act is 
applicable to PATA. In this context, Article 247(3) and (4) of the 
Constitution are relevant which read as under:- 
 
“(3) 
No Act of Majlis-e-Shoora (Parliament) shall 
apply to any Federally Administered Tribal Area or to 
any part thereof, unless the President so directs, and no 
Act of Majlis-e-Shoora (Parliament) or a Provincial 
Assembly shall apply to a Provincially Administered 
Tribal Area, or to any part thereof, unless the Governor 
of the Province in which the Tribal Area is situate, with 
the approval of the President, so directs; and in giving 
such a direction with respect to any law, the President or, 
as the case may be, the Governor, may direct that the law 
shall, in its application to a Tribal Area, or to a specified 
part thereof, have effect subject to such exceptions and 
modifications as may be specified in the direction. 
 
(4) 
Notwithstanding anything contained in the 
Constitution, the President may, with respect to any 
matter within the legislative competence of Majlis-e-
Shoora (Parliament), and the Governor of a Province, 
with the prior approval of the President, may, with 
respect to any matter within the legislative competence 
of the Provincial Assembly make regulations for the 
peace and good government of a Provincially 
Administered Tribal Area or any part thereof, situated in 
the Province.” 
(Emphasis supplied) 
 
Civil Appeal No.1023 of 2016 etc. 
 
 
 
 
 
 
        -: 17 :- 
 
Therefore for an Act of Parliament or a Provincial Assembly to be 
applicable to PATA or any part thereof, the Governor of the Province in 
which the tribal area is located, with the approval of the President, 
must issue a direction to that effect. Further, the Governor also has the 
power, with the prior approval of the President, to issue regulations for 
the peace and good governance of PATA or any part thereof. The 
question is whether the Act that was made applicable to the tribal areas 
of Swat District still continues to remain applicable to such tribal areas 
that are taken out from Swat District and made part of Kohistan 
District and Kohistan (Lower) District? Prior to the formation of 
Kohistan (Lower) District and even Kohistan District, the PATA that 
formed a part thereof was a part of Swat District. The Governor of 
NWFP, with the approval of the President, promulgated the Provincially 
Administered Tribal Areas (Application of Laws) Regulation, 1974 (NWFP 
Regulation No.1 of 1974) (the Regulation) pursuant to Article 247(4) of the 
Constitution, and the relevant provisions thereof are reproduced below 
for ease of reference:- 
 
“1(2) It extends to the Provincially Administered Tribal 
Areas of Chitral, Dir, Kalam, Swat and Malakand 
Protected Area. 
 
3. 
The Laws specified in the Schedule as in force in 
the North-West Frontier Province immediately before the 
commencement 
of 
this 
Regulation, 
subject 
to 
modifications herein specified and so far as may be, all 
rules, notification and orders made or issued thereunder, 
shall apply to the Provincially Administered Tribal Area 
of Chitral, Dir, Kalam, Swat and Malakand Protected 
Area, hereinafter referred to as the said Areas. 
 
 
Civil Appeal No.1023 of 2016 etc. 
 
 
 
 
 
 
        -: 18 :- 
 
SCHEDULE 
1………………………………………………………………… 
2………………………………………………………………… 
3………………………………………………………………… 
4………………………………………………………………… 
5. 
The West Pakistan Land Revenue Act, 1967 (W. P. 
Act No. XVII of 1967).” 
 
According to Section 3 read with Entry 5 in the Schedule of the 
Regulation, the Act was made applicable to the PATA of Swat. 
Subsequently vide notification dated 1.10.1976 issued by the Governor, 
KPK, 154 villages of Swat District were included in Kohistan District. As 
we have established above, variation in the limits of a district does not 
affect the PATA status of an area, therefore the tribal areas of Swat 
District remained tribal areas even after they became a part of Kohistan 
District. Since the Act was made applicable to PATA in Swat through 
the Regulation, even if such tribal area was subsequently made a part 
of Kohistan, it remained a tribal area for all intents and purposes and 
the Act would be deemed to be applicable to such area. The case of 
Abdul Jabbar cited by Mr. Aitzaz Ahsan, learned ASC deals with a 
matter in which this Court had to answer inter alia the following 
questions:-  
 
“(a) Whether the provisions of Customs Act, 1969 have 
been extended to the area in question within the 
contemplation of Article 247 of the Constitution;   
  
(b) Whether the area in question having once been 
detached from the Malakand Division (to which the 
Customs Act, 1969) was extended and subsequently 
attached to Kohistan District of Hazara Division (to 
which Customs Act, 1969 was not then extended) would 
Civil Appeal No.1023 of 2016 etc. 
 
 
 
 
 
 
        -: 19 :- 
 
still be deemed to be a part of Malakand Division for the 
purpose of the extension of Customs Act, 1969;” 
 
In answering the above a three member bench of this Court held as 
follows:- 
 
“It is to be noticed that there is no dispute between both 
the parties that the tribal area of Kohistan was a part and 
parcel of Swat District. Admittedly vide Regulation No.III 
of 1975, Customs Act was extended to the Swat District 
with effect from 22nd July, 1975. At that time 
Constitutional position as per Article 246 of the 
Constitution of Swat District was as follows… 
  
Later on Kohistan area was carved out from Swat District 
and ultimately status of District was also given to it by the 
Provincial Revenue Department for administrative 
purposes but by means of Act 1976 of the Constitution 
following amendment was made in Article 246(b)… 
  
7. Although by means of above amendment the tribal area 
in Kohistan was recognized to be a Provincially 
Administered Territory but fact remains that it is the same 
area which was once a part of the Swat District where 
Regulation No.III of 1975 was extended, therefore, 
following the dictum laid down in the case of 
Superintendent, 
Land 
Customs, 
Torkham 
(Khyber 
Agency) (ibid) it would be deemed that the Act 1969 was 
also extended to the tribal area in Kohistan…” 
 
In a similar vein, since all the PATA in Kohistan District and Kohistan 
(Lower) District were once a part of Swat District to which the 
Regulation had extended the application of the Act, therefore, it (the Act) 
would be deemed to be extended to the tribal areas in both Kohistan 
District and Kohistan (Lower) District. 
Civil Appeal No.1023 of 2016 etc. 
 
 
 
 
 
 
        -: 20 :- 
 
13. 
 
In the light of the above, all the appeals are allowed and the 
impugned judgments are set aside to the extent that they hold that the 
PATA in Kohistan (Lower) District do not find mention anywhere in 
Article 246 of the Constitution, thus the same cannot be regarded as 
territory forming part of PATA, and the impugned action of the 
Provincial Government had disturbed the constitutional status of the 
said area. Resultantly any subsequent actions taken pursuant to the 
impugned judgments, including inter alia the letter dated 16.2.2016, 
shall cease to have effect. 
 
 
 
 
JUDGE 
 
 
 
 
JUDGE 
 
 
 
 
JUDGE 
Announced in open Court 
on 17.1.2017 at Islamabad 
Approved For Reporting 
Ghulam Raza/* 
