P L D 1975 Peshawar 196 (PLP)

GHULAM SAFDAR SHAH, C. J.

These four constitutional petitions, in which the same question of law arises for consideration, are directed against the orders of Deputy Commissioner, Chitral dated 16-10-73 by which lie tool: cognizance of an application filed before him by respondent 3 against petitioners and earmarked it to S. D. A., Chitral for inquiry with direction that his consequent report should be submitted to him within 10 days. The contention of learned counsel is that after the coming into force in the area of former State of Chitral of Regulation I of 1974 (Provincially Administered Tribal Areas (Application of Laws) Regulation, 1974), the Deputy Commissioner, Chitral would have no jurisdiction to take cognizance of the application submitted to him by respondent 3 and thus his order dated 16-10-73 and all -subsequent proceedings, based on that order would be without jurisdiction and of no legal effect whatever. For this submission, the learned counsel relied on section 7 of Regulation I of 1974 which reads as follows: "

7. Certain laws to cease to operate.-(1) If immediately before the com mencement of this Regulation, there was in force in the said Areas any law, instrument, custom or usage having the force of law corresponding to the provisions of any of the laws applied to those Areas by this Regulation, such law, instrument, custom or usage shall, upon such commencement, cease to halve effect in those Areas. (2) Nothing in subsection (1) shall affect- (a) the previous operation of any such law, instrument, custom or usage ; or (b) the recovery of any tax, fee, duty, toll or surcharge recoverable under any such law, instrument, custom or usage before the commence ment of this Regulation, and any such tax, fee, duty, toll or surcharge shall be recoverable as if subsection (1) had not come into force ; or (c) any penalty forfeiture or punishment incurred in respect of any such; offence punishable under such law, instrument, custom or usage ; or (d) any investigation, proceeding or remedy in respect of any such penalty, forfeiture or punishment and any such investigation, proceed ing or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if subsection (1) had not come into force." The facts of the case, however, are that in regard to the land in dispute, of which respondent 3 claimed to be the owner, an application was submitted by him to Deputy Commissioner, Chitral on 15-10-73 alleging therein that his said land had been made the subject-matter of bogus and illegal sales by petitioners and consequently an inquiry was sought by him in that behalf with a view to doing justice to his case. On receipt of this application, the Deputy Commissioner, Chitral referred it to S. D. A. for inquiry. And this would show that he took cognizance of the case on that date according to the riwaj of the area which was then in force in Chitral. Regulation I of 1974, however, came into force in the area of Chitral subsequently on 17-4-74 and thus the case of respondent would, according to what has been laid down in clause (a) of subsection (2) of section 7 of the Regulation, be saved from the operation of subsection (1)' of that section. The learned counsel, however, argued that the language of clause (a) of subsection (2) of section 7 would appear to refer to only past and closed transactions. But since the case of respondent 3 was still pending adjudica tion, it would not, he added, fall under the scope of said provision, so as to claim that it has to be decided according to the custom of the area. We are afraid, there is no force in this contention. A look at clause (a) of subsection (2) of section 7 (ibid), would show that. It is in the nature of a proviso to subsection (1) of that section by which the previous operation of all laws, instruments, customs or usages has been preserved. And this, in our view, would save from the effect of the Regulation all cases of riwaj which, before the coming into force of it in the former State of Chitral, were pending adjudication. It may be noted that in the scheme of things past and closed transactions are not required to be protected in a legislative instrument. And thus the words "the previous operation of any such law. instru ment custom or usage" appearing to clause (a) of subsection (2) of section 7 of the Regulation, would necessarily refer to all cases which, were before the Regulation came into force, pending in Chitral under the customary law. The learned counsel, however, referred to clauses (b), (c) and (d) of subsection (2) of section 7 of the Regulation and argued that the Legislature has, by the use of express language therein, excluded from the effect of the Regulation cases of criminal nature in which a person can be shown to have incurred any penalty, forfeiture or punishment before the coming into force of the Regulation in the former State of Chitral. But in regard to cases of civil nature the position was different. He, therefore, urged that while customary law would still be applicable in regard to pending criminal cases in the area of Chitral, cases of civil nature will have to be decided according to the Code of Civil Procedure which by virtue of the Regulation was made applicable to that area on 17-4-74. On the face of it, this argument seems to be attractive. But on careful analysis, it would have no force in it. It is true that according to the language of clause (d) ibid, pending criminal cases seen to have been excluded from the effect of subsection (1) of section 7 of the Regulation. But this would not help the learned counsel A look at the provision of subsection (2) of that section would show that the Legislature had in mind three categories of cases, namely:- (1) Cases of civil nature falling under clause (a) thereof; (2) Cases of recovery of tax, fee, duty, toll, surcharge etc. falling under t s . clause (b); and (3) Cases of criminal nature falling under clause (c) in which a person had, before the coming into force of the Regulation in Chitral incurred any penalty, forfeiture or punishment under the customary law. A perusal of these provisions would show v that in cases falling under the latter two categories, the Legislature has, by the use of express language, excluded the operation of the Regulation. But in respect of cases of civil nature, it has only said that the Regulation shall not affect the previous operation of any of the laws of former State of Chitral. It is true that in view of this seeming inconsistency on the part of Legislature a justifiable doubt would arise that it had no intention of saving from the operation of the Regulation pending civil cases. But it would be impermissible to disregard the provision of clause (a) of subsection (2) of section 7 of the Regulation which would, in view of what has been said in clauses (b) and (d) thereof, necessarily refer to cases of civil nature. We have not been able to agree with learned counsel that the language of this provision would refer to those civil cases in which final decision had been reached under the laws of former State of Chitral. For in the first place, to make a provision for past and closed transactions would be entirely unnecessary, and in the second place, we do not see, nor indeed was the learned counsel able to satisfy us, as to why the Legislature would make a distinction between civil and criminal cases. As regards the merits of the case, the learned counsel for petitioners con ceded before us that according to the custom of former State of Chitral, the Deputy Commissioner occupies a high Judicial, administrative and executive position inasmuch as he is the head of Judicial Council before which the cases are now pending. The learned counsel seems to have rightly made this concession, as according to the customary laws of Chitral a copy of which was placed before us by learned Advocate-General, all cases of civil nature are initially instituted before Deputy Commissioner who however, refers them first for inquiry to S. D. A. and upon receipt of his report are then sent by him to Judicial Council for decision. In this view, it is obvious that the institution of his case by respondent 3 before Deputy Commissioner, Chitral was in accord with riwaj of the area and the same would remain excluded from the operation of the Regulation and has to be decided according to riwaj. Another circumstance, which would go against petitioners, is that the land in dispute seems to have been acquired by Government and they have already received its compensation from S. D. A. subject, of course, to the final decision of the case. In other words, petitioners having taken advantage of the order of S. D. A. cannot be permitted to approbate and reprobate in these proceedings in which their conduct would be relevant. The learned counsel however, argued that respondent 3 had instituted his case before Deputy Commissioner, Chitral on 29-5-74 (Le.), after the coming into force of the Regulation in that area) and thus the Judicial Council would have no jurisdiction to adjudicate upon the case. We are afraid the learned counsel has misconceived the factual position. The application of respondent 3 dated 25-5-74, on which he relied, is not a fresh application but is in the nature of a reminder of his main case instituted by him before Deputy Commissioner on 15-10-73. In this respect it would suffice to reproduce from his said application dated 29-5-74 the following passage:

The learned counsel lastly argued that in a view of Fundamental Right Nos, 25 of the Constitution, which guarantees to the citizen equality before law, the petitioners have been prejudiced, inasmuch as they are being made to submit to the jurisdiction of Judicial Council which administers no other law than the archaic riwaj of the area. We are afraid, there is no force in this contention. It is well-settled that equality would only mean to treat persons of the same class equally. And this is precisely what Regulation I of 1974 has provided. According to the provision of that Regulation, all pending cases of the type, which have been saved from its operation, would necessarily relate to the residents of Chitral, and will have to be decided according to the custom. Evidently, therefore, the concept of equality between these residents has been fully preserved by Regulation I of 1974, to which no exception could be taken on the basis of Fundamental Right No. 25 of the Constitution. In view of this discussion, all these petitions fail and are dismissed with costs. K.B.A Petitions dismissed.