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JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,


MINGORA BENCH
(DAR-UL-QAZA), SWAT
(Judicial Department)

RFA No. 30/2013.


Date of hearing: 03.12.2014.
Appellant......

(Raja Liaqat Ali) by Mr. Aftab Alam,


Advocate.

Respondent ...... (Shehzad Alam & others) by


Mr. Mujahid Farooq, Advocate.

MALIK MANZOOR HUSSAIN, J.- This appeal has

been preferred against the order dated 22.2.2013 passed by

learned Additional District Judge/ Izafi Zila Qazi-II, Swat,

whereby suit filed by appellant under Defamation

Ordinance, 2002, was rejected for want of jurisdiction.

2.

Facts gave rise to the instant appeal is that

appellant filed a suit for recovery of Rs. 50 million as

damages under the Defamation Ordinance, 2002. The

respondent No.1 appeared before the Court and filed an

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application for rejection of plaint on the ground that since

the Defamation Ordinance, 2002, was not extended to the

PATA as required under Article 247(3) of the Constitution

of Islamic Republic of Pakistan, 1973; therefore, the suit

filed was not maintainable.

3.

The learned trial Court/Additional District

Judge through impugned judgment dated 22.2.2013 held

the suit not maintainable on the ground that Defamation

Ordinance, 2002, is not extended to PATA and rejected the

plaint. Feeling dissatisfied by the order of learned

Additional District Judge/ Izafi Zila Qazi, the petitioner

filed the instant writ petition.

4.

Arguments heard and record perused

5.

The main ground which prevailed before the

learned Trial Court was that as per requirement of Article

247(3) no enactment shall, ipso facto, applied to PATA

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unless the President so directs in case of Federally

Administered Tribal Area and in case of provincial

legislation unless the Governor of the Province in which

the Tribal Area is situate, with the approval of the

President, so directs with respect to any law.

6.

There is no denial of the fact that all the

enactments made through Ordinances promulgated by the

Chief Executive during the period of Emergency passed

under the authority of Declaration of Proclamation of

Emergency in October, 1999, or under the authority of

Provisional Constitution Orders were given validation

under Article 270-AA of the Constitution through

Seventeenth Amendment. The Defamation Ordinance,

2002, was made applicable to the whole of Pakistan and

under the definition clause, PATA is part of Pakistan.

Article 247 of the Constitution was non-operative when

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the Ordinance, ibide, was promulgated on Ist October,

2002, therefore, it was not the requirement of law at that

time that the Ordinance, ibid, which was passed when

Article 247 was non-operative and a separate Ordinance/

Order as Regulation by the President in this regard was not

required for extension of the Ordinance,ibid, to the PATA.

Reference can be made to the other Ordinances like the

then Local Government Ordinance, 2000, Criminal Law

amendment Ordinance, 2002, whereby 22-A was inserted

in Criminal Procedure Code and also provision of Section

489-F PPC was introduced, National Accountability (2nd

amendment) Ordinance, 2000, whereby amendment was

made in Section 18 of the Ordinance, 1999, and also

Contempt of Court Ordinance, 2003.

7.

As the validation was made and protection

was given under Article 270-AA of the Constitution, thus,

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it can be concluded safely that there was no need to

promulgate a separate Regulation for extension of

application of the Ordinances, ibid, to PATA which were

already made applicable to whole of the country including

the PATA.

8.

Furthermore, the Defamation Ordinance, ibid,

was promulgated by the President in pursuance of the

Proclamation of Emergency on the 14th day of October,

1999, and the Provisional Constitution Order NO. 1 of

1999 read with the Provisional Constitution (Amendment)

Order NO. 9 of 1999, and it was made applicable to whole

of Pakistan at once, therefore, it is manifest that President

has not promulgated the Ordinance in exercise of his

ordinary powers under Article 189 of the Constitution

rather it was in exercise of powers under the Provisional

Constitution Order NO. 1 of 1999 read with Provisional

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Constitution Order No. 9 of 1999. Similarly, a perusal of

Section 5-A (1) of the Order No. 9 of 1999 clearly laid

down that the Ordinances promulgated by the President

was subject to the limitation as to its duration given under

Article 89 of the Constitution but at the relevant time of

publication of Ordinance, 2002, ibid, the Article 89 was

suspended. All the legislations made between 12.10.1999

to 31.12.2003 were validated through Act No.III of 2003

of the Constitution (Seventeenth Amendment).

9.

The upshot of the above discussion is that

provisions of Defamation Ordinance, 2002, introduced

through Order LVI of 2002 are alive and enforced in

PATA and there was no need to regularize the same

through passing of any fresh Regulation. It is pertinent to

mention here that Defamation (Amendment) Act, 2004,

was promulgated on 30.11.2004 and at that very time the

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Article 89 of the Constitution was very much there,

therefore, through Khyber Pakhtunkhwa Sharia Nizam Adl

Regulation, 2009, notified on 16.4.2009, under paragraph

3(1), the amendment introduced in the Act, ibid, was

extended to PATA. For the convenience paragraph 3(1) is

reproduced as under:-

3. Application of certain laws.-- (1) The laws specified

in column (2) of Schedule-I, as in force in the


Khyber

Pakhtunkhwa

immediately

before

the

commencement of his Regulation, and so far as may


be, all rules, notifications and orders made or
issued there under, shall apply to the said area.

Under paragraph 3(1) schedule, at S. No. 88 The

Defamation (Amendment) Act, 2004, was duly extended

to PATA.

10.

The view expressed by the learned trial Court

in the impugned judgment is not in accordance with

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provisions of Constitution and is against the provisions

discussed herein above.

In view of what has been discussed above,

this petition is allowed, the impugned order passed by

learned Additional District Judge/ Izafi Zila Qazi is set

aside and is declared to be without lawful authority and of

no legal effect. The suit filed by the petitioner under

Defamation Ordinance, 2002, would be deemed pending

before learned Additional District Judge, who shall decide

the same in accordance with law and merit of the case.

Announced.
Dated: 3.12.2014

JUDGE

JUDGE

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