2000 PLP 1657 (SCMR)

CH. MUHAMMAD ARIF, J.--The background in which this appeal, with the leave of the Court against judgment dated 11-1-1993 of the Peshawar High Court, Peshawar passed in Writ Petition No. 12 of 1991 dismissing appellants' said Constitutional petition, has arisen is that they claimed to be owners in possession of the disputed land with water mills locally known as Shotar Hinjojal/Shotar Kundar located on about 100 Jaribs in village Samagole, Tehsil Morkon, District Chitral which includes some pastures as also cultivated area therein. The Mehtars of Chitral namely, N. Nasirul Mulk and M. Muhammad Muzaffarul Mulk held the disputed property to be that of the appellants-Kheoshamonai Tribe respectively on 19-7-1941 and 14-2-1946. There used to be an old channel meant for irrigation and supply of water to the three ponds reserved by the then Rulers for duck hunting etc. In the year-1977, respondent No.4/Tribe Wazir Begai, wanted to excavate a new channel from river Morkoh and thereby take illegal possession of the landed property in question for cultivation which was resisted by the appellants-Tribe. They made an application to the Deputy Commissioner, Chitral on 3-5-1977, inter alia praying for issuance of an injunction against respondent No.4 Tribe Wazir Begai from interfering with the land in question and to restore Shikargah to them, as held in other cases. Instead of proceeding with the application of the petitioners in accordance with the provisions of Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation (No.II of ) 1975, hereinafter referred to as the Regulation, the Deputy Commissioner marked the same to Assistant Commissioner, Mastuj who, in turn, sent it to the Naib Tehsildar. The Naib Tehsildar submitted his report admitting the dispute relating to over 100 Jaribs of land but opining that the same is outside his jurisdiction in that the controversy regarding damage to crops; water for ponds and demarcation stood settled by way of compromise in the year 1969 and referred the case back to the A.C., Mastuj.

2. Assistant Commissioner Mastuj simply filed the suit on 4-9-1979. However, on a move by the. appellants, the Deputy Commissioner, Chitral referred the matter to the Judicial Council.

3. Respondent No.4 appealed against the reference of the matter by the Deputy Commissioner, Chitral to the Judicial Council, before the Additional Commissioner, Malakand Division, Saidu Sharif. The appeal of respondent No.4 was disposed of by the Additional Commissioner, Malakand Division who remanded the case to the Deputy Commissioner, Chitral vide order dated 29-9-1980.

4. After remand, the respondent-Deputy Commissioner, Chitral filed the suit vide order dated 21-9-1982.

5. Order dated 21-9-1982 of the Deputy Commissioner, Chitral was challenged by the other-side through an appeal dated 16-10-1982, before the Additional Commissioner, Malakand Division who dismissed the same vide order dated 30-7-1986.

6. The appellants filed a Civil Revision before the respondent Government, through the Additional Secretary, Home and Tribal Affairs Department, Peshawar, inter alia, raising the question of jurisdiction in re application of ' Riwaj' thereto as also the applicability of the Regulation to the instant case claiming that the so-called compromise deed was forged and brought about by a person inimically disposed towards them with ulterior motives. The Revision Petition was dismissed by the respondent Government, through the Additional Secretary, ;Home and Tribal Affairs Department, Peshawar, on 7-10-1990.

7. The appellants filed Writ-Petition No.73 of 1983 challenging the order of respondent-Deputy Commissioner, Chitral dated 21-8-1982 but the same was withdrawn on 4-9-1983 with permission to file another for the reason that alterate remedy of Appeal/Revision. was riot availed of by them before the Appropriate Forums.

8. Appellants' second Writ Petition No. 12 of 1990 was dismissed by ay Division Bench of the Peshawar High Court, Peshawar-en 11-1-1993, para.3 whereof reads thus: "

3. The learned counsel appearing for the petitioners submitted that the lower forums should have dealt with the case under the FATA Regulation and should not have decided it under ' Riwaj' as ' Riwaj' had no more remained a criterion for decision in District Chitral. This argument has no merit. The petitioners cannot be allowed to blow hot and cold and to change their stance whenever it suits them. As is clear from the above narration of facts the case was referred to Judicial Council for decision by the learned Deputy Commissioner through his order dated 17-3-1980 but it is amazing to note that, the.petitioners were satisfied with this order and did not challenge it in the higher forum

8. Para. 3 of Leave Grant Order dated 11-8-1993, reads thus:-- "

3. The learned counsel for the petitioners submitted that no compromise had been effected as recorded by the Naib Tehsildar. The dispute in the present case relates to land which was never A decided by any competent forum. He submitted that the dispute should have been resolved under the provisions of the Provincially Administered Tribal Areas Civil Procedure (Special Provisions Regulation, 1975. But in disregard of the provisions of these Regulations and without recording any evidence, the suit of the petitioners was dismissed. Leave to appeal is granted to consider the above contention. "

9. Hence this appeal.

10. Both sides have pressed in service the conclusions reached by the Judicial Council in its report dated 28-9-1991 which read thus:--

11. It appears that the impugned judgment of the Peshawar High Court dated 11-1-1993 non-suited the petitioners for the following reasons:-- (1) That appellants' plea to the effect that lower forums should have dealt with the case under the FATA Regulation and not under 'Riwaj' is sans merit in that they did not challenge the reference of the case to the Judicial Council by the Deputy Commissioner on 17-3-1980 and cannot be permitted to blow hot and cold in the same breath. In the same category falls the conduct of the appellants when it is noticed that the other side challenged the order of the Deputy Commissioner before the Additional Commissioner who held that the case is yet to be resolved finally and that such finalization has to come about on the ' Riwaj' side but the appellants failed to challenge the order of the Additional Commissioner in revision before the Provincial Government. (2) That the appellants cannot to permitted to argue that ro compromise/Sulehnama was effected or that they had been declared owners of this property in earlier litigation. (3) That controversial factual position reflected in the pleas of the appellant in sub-para. 2 above, cannot be made the subject matter of a Constitutional petition under Article 199 of the Constitution before a High Court. Moreso, when this situation is viewed in the light of order dated 21-9-1982 of the Deputy Commissioner, referring to the earlier decisions in the cause, correctness whereof could not be controverted by their learned counsel.

12. Mr. M. Sardar Khan, learned Senior Advocate Supreme Court appearing on behalf of the appellants, has reiterated the pleas attended to by the learned Division Bench of the High Court and contended that the findings of the Additional Commissioner dated 29-9-1980 also support his client's case. According to him, even if the execution of compormise/Sulehnama 1969 were to be accepted as correct, the dispute regarding ownership of the disputed properties was not resolved therein. He concluded his arguments by referring to Rashid Ahmad `t. The State (PLD 1972 SC 271) and Sultan Ali v. Khushi Muhammad (PLD 1983 SC :?43) to contend that jurisdiction cannot be conferred by acquiescence or by consent and that all the proceedings are coram non judice in that they were not processed under Regulation No.II of 1975.

13. Mr. Qazi M. Anwar, learned Senior Advocate Supreme Court representing respondent No.4, has supported the judgment of the High Court and contended that Regulation No 11 of 1975 protects earlier decisions under `Riwaj' and that the evidence, recorded by the Judicial Council, including Exh. DW1/1, puts an end to the case by placing reliance upon compromise/Sulehnama, existence whereof was denied by the appellants throughout.

14. We have considered the arguments advanced at the Bar by the learned counsel for the parties and have also carefully gone through the available material. It is not denied by the appellants that the observations made by the learned Division Bench of the High Court on the first two questions detailed in the para above, are correct. The conduct of the appellants in not challenging the reference of the case by the Deputy Commissioner to the Judici.a Council and non-challenge to the observation by the Additional Commissioner that the case is to be' resolved on the Riwaj' side, have not been shown to be suffering from any taint whatsoever. A perusal of para. 17 of Regulation (No. II of ) 1975 further brings it to the fore that even after its promulgation the litigants were to continue the proceedings in pending cases before the then authorities "... as if this Regulation had not come into force". Proviso to para. 17 of the Ordinance reads thus: "Provided that, where in a case pending in any Court all the parties to any such case agree to have the same decided under this Regulation the proceedings thereof shall terminate, and the case shall be referred by the Court 'before which it was pending to the Deputy Commissioner concerned."

15. Appellants' application, addressed to the Deputy Commissioner, Chitral, is dated 5-3-1977 and, after passing through various processes, the same was referred to the Judicial Council and such treatment having been meted out thereto was not challenged by the appellants at any point of time. Obviously, this situation runs counter to their case as pleaded at this stage of the instant litigation.

16. As regards the effect of 1969-conrprernise/Sulehnama we suffice by observing that the same was arrived at between the private-respondents and another and that the appellants did cross-examine the witnesses who had appeared before the Judicial Council but did not succeed in obtaining any help from their statements in examination-in-chief and/or in cross- examination.

17. The plea that the Judicial Council -had not resolved the entire dispute, including dispute regarding., ownership of the appellants, has ,not impressed us at all. Appellants did not even so much as admit the existence of compromise/Sulehnama in their pleadings before all the forums, including the High Court. Even at the time of arguments at leave grant stage here, their case was that no compromise had been effected, as recorded by the Naib Tehsildar. Taking a bit from one set of facts and another bit from another is of little help/assistance to the appellants to construct a new case for themselves. The past history of the case having been duly brought on the record by copious quotations from the references to the past decisions/judgments, does lead to the irresistible conclusion that the appellants are themselves to blame for the predicament in. which they find themselves today.

18. There is no cavil with the proposition that litigants cannot confer jurisdiction on a Court or Tribunal which is otherwise not possessed by it. C Here, the spectacle is totally different. The findings recorded by the Competent Forums in the past did lead to the conclusion that the appellants were not possessed of any right or privilege, which would entitle them to the p relief prayed for by them in their application dated 3-5-1977 addressed to the Deputy Commissioner, Chitral. The appellants have nothing more to say in relation to the conclusions afore-referred.

19. No other point was raised.

20. Resultantly, this appeal fails and is hereby dismissed with no order as to costs. Q.M.H./M.A.K./K-16/S Appeal dismissed