1999 PLP 1028 (SCMR)

MUHAMMAD BASHIR JEHANGIRI, J.

The petitioner seeks leave to appeal against the judgment of a learned Division Bench of Peshawar High Court, against the judgment, dated 7-5-1997 whereby his Writ Petition No.612 of 1997 was dismissed in limine.

2. The facts of the case, briefly stated, are that Mian Said Sherin respondent No.4 filed a suit under PATA Regulation No.II of 1975 against Shahzad Gul and Daulat for declaration of his title to and confirmation of his possession over a piece of land fully described in the heading of the plaint, or in the alternative for the possession thereof. Another relief claimed was of perpetual injunction restraining the defendant-petitioner from interfering with the possession of respondents Nos.4 and 5 therein. The suit was contested. It was referred to the Jirga which recommended that the suit should be decreed. In consequence Assistant Commissioner. Matta, with powers of Deputy Commissioner under PATA Regulation 'passed a decree for possession of the suit land measuring 33 Kanals 6 Marlas i.e. 16 Kanals 13 Marlas in favour of the plaintiff against the defendants'. Feeling aggrieved, the defendants filed appeal before the learned Additional Commissioner-I, Malakand Division, Saidu Sharif, which was dismissed by the order, dated 10-12-1990 and so was the case with the revision petition filed before the Additional Secretary to the Government of N.-W.F.P., Home and T.As, Department which was dismissed, on 20-11-1996. Feeling still dissatisfied, the petitioner challenged the decision of the PATA Courts by filing Writ Petition No.612 of 1997. The learned Division Bench of the Peshawar High Court observed that the petitioner had himself filed revision petition in question and, therefore, he cannot now turn around and challenge the validity of the order 'whereby it was taken to its logical conclusion'. It was further observed that the revision petition pending decision before the Government of N.-W.F.P. under the PATA Regulation was competently heard and decided. In this context reference was made to the case of Abdul Samad and others v. Painda Muhammad and others (PLD 1997 Peshawar 35) wherein the principle was enunciated that appeals or petitions pending under the PATA Regulation I of 1975 and PATA Regulations II of 1975 shall be heard and decided by the forums under the said Regulation notwithstanding their repeal by N.-W.F.P. Regulation II of 1994 and shall not be transferred to the Courts established under PATA (Nifaz-e-Nizam-e-Shariah) Regulation II of 1994. The writ petition was thus dismissed in limine.

3. Mr. Muhammad Amin Khattak, learned Advocate Supreme Court, in support of this petition contended that even under PATA Regulation II of 1975 which had been repealed by PATA (Nifaz-e-Nizam-e-Shariah) Regulation II of 1994, the revisional Court (respondent No.l) was not legally competent to decide the issue of fact.

4. Mian Younis Shah, learned Senior Advocate Supreme Court, appearing on behalf of the private respondents, contended that under section 11 of the PATA (Nifaz-e-Nizam-e-Shariah) N.-W.F.P. Regulation No.11 of 1994. PATA Regulation II of 1975 was repealed with effect from 12-2-1994 but notwithstanding its repeal it shall not affect any right, privilege, obligation, or liability acquired, accrued or incurred under the law, instrument, custom or usage. According to him the cases which have been decided by the Deputy Commissioner under the PATA Regulation II. of 1975 shall remain unaffected by the repeal of the Regulation II aforesaid.

5. We tend to agree with the learned counsel for the private respondents. We are firm in our view that notwithstanding the repeal, of PATA Regulation I 1975 and PATA Regulation II of 1975, by PATA N.-W.F.P. Regulation II of 1994, both criminal and civil cases which had been disposed of by the Deputy Commissioners exercising the powers under the aforesaid Regulation shall not be affected by the Repeal of Act. We also tend to agree with the learned Division Bench in the High Court that even otherwise the petitioner is estopped to challenge the impugned orders of the PATA Courts under PATA Regulation II of 1975 as he had himself filed appeal to the Additional Commissioner and revision petition to the Provincial Government under the PATH Regulation II of 1975.

6. In this background we do not find any merits in this petition which is accordingly dismissed. M. B. A./S-119/S Petition dismissed.