1992 PLP 1638 (SCMR)

Learned counsel for the appellants has referred to a recent Full Bench decision of the Peshawar High Court; namely, Ghulam Jaafar v. Mst. Zaibun Nisa and 5 others PLD 1990 Peshawar

1. It needs to be stated that in various judgments noticed in the Full Bench case the learned Judges of the Peshawar High Court had differed with each other on the question; whether; the Commissioner would exercise no more than the power which is conferred on the Deputy Commissioner under section

10. In other words there are judgments both in support as also against the proposition advanced by the learned counsel for the appellants in this case. Sections 10, 11 and 12 of the Regulation read as follows:‑‑ Section

10. Action upon the report of the Tribunal.‑‑ (1) The finding of the Tribunal on a matter of issue referred to it under section 4 shall be given in accordance with law, or the custom or usage having the force of law, and shall be submitted to the Deputy Commissioner in the form of a report containing reasons for such finding. (2) Upon receipt of a report of the Tribunal, the Deputy Commissioner may, if the report does not give a finding on any matter or issue referred to the Tribunal or any substantial part thereof, or if he is of opinion that there has been material irregularity or that the proceedings of the Tribunal have been so conducted as to occasion a miscarriage of justice, remand the matter or issue to the Tribunal or refer the matter. or issue to a second Tribunal constituted in accordance with section 5. (3) Where the finding of the Tribunal on the matter or issue referred to it is unanimous or by a majority of its members and the Deputy Commissioner does not proceed under subsection (2), he shall decide the dispute and pass a decree in accordance with such finding. Section

11. Appeal.‑‑(1) Any party aggrieved by any decision given, decree passed or order made, by the Deputy Commissioner under this Regulation may, within sixty days of such decision, decree or order, prefer an appeal to the Commissioner. Explanation.‑‑The provisions of section 5 and section 12 of the Limitation Act, 1908 (Act IX of 19()8), shall apply to as appeal made under this Regulation. (2) The Commissioner shall not confirm, modify, alter or set aside any decision, decree or order appealed against, except after giving the parties an opportunity of being heard. (3) The Commissioner may, in deciding an appeal under subsection (1) exercise all or any of the powers, conferred on an appellate Court by the Code of Civil Procedure, 1908 (Act V of 1908). (4) Subject to the provisions of this Regulation, the decision of the Commissioner on an appeal under this section shall be final. Section

12. Revision‑‑(1) Government may, within ninety days of any order passed by the Commissioner on an appeal, either of its own motion or on the application of any party to a dispute, call for and examine the record of any appeal disposed of by the Commissioner, for the purpose of satisfying itself as to the correctness, legality or propriety of any decision, decree or order given, passed or made under this Regulation, or as to the regularity .of any proceedings thereunder and may, when calling for such record, direct that the execution of the decree or order in question be suspended pending the examination of the record: Provided that nothing herein contained shall be deemed to authorise Government to vary or set aside a finding of a Tribunal on a question of fact where such finding has been ‑accepted be the Commissioner unless it is of opinion that there has been a material irregularity or defect in the proceedings or that the proceedings have been so conducted as to occasion a miscarriage of justice. (2) Government may, after examining any record, called for under subsection (1) and giving the parties an opportunity of being heard, pass such order as it may think fit." There are at least three provisions in these three sections which highlight peculiar aspects of the jurisdiction exercised at each one of the three stages; namely, the trial, the appeal and the revision. Subsection (3) of section 10 binds the Deputy Commissioner that unless he acts under subsection (2), while deciding the dispute he shall have to pass a decree in accordance with the findings of the Tribunal. Thus although this question is not directly before us it seems that the Deputy Commissioner is bound by the findings of the Tribunal. Instead of repeating similar provision in section 11 the legislature thought it fit to include therein provisions which are to the contrary effect. One, that subject to the provisions of the Regulation including those relating to revision the decision of the' Commissioner on an appeal under section 11 shall be final. Subsection (2) contains not only pith and substance of the general appeal power including that of reversal of a decree or order, it emphasizes also the wider aspect of section 11 by imposing only one condition on the appellate power of the Commissioner. It is that he shall not confirm, modify, alter or set aside the decision, decree or order' as the case may be without affording an opportunity of hearing to the parties. In subsection (1) also this wideness of the ordinary power of an appellate forum is preserved by the use of the word "appeal" without any conditions or limitations. It will have to be read and interpreted 'in an ordinary sense, so as to convey the connotation of appeal; namely, that the appellate forum can modify, set aside, confirm or alter the decision, decree or order under appeal. But as noted 'above the significant omission of a provision like subsection (3) of section 10 in the peculiar set of these three provisions makes it amply clear that the appellate forum has the normal powers of appeal having the scope to confirm, modify, alter or set aside any decree, decision or order. When coming to section. 12 the limitation like subsection (3) of subsection 10 is again introduced in the proviso to subsection (1) of section 12 but in different way. If section 10(3) binds the Deputy Commissioner by the findings of facts rendered by the Tribunal (whether affirmative or negative) the revisional authority is bound conditionally by such findings only if they are accepted also by the Commissioner. This also supports the view that the Commissioner has the option either to accept the findings of fact by the Tribunal or not to accept them. The revisional authority is as above, bound by the Commissioner's affirmation on facts, not otherwise. Therefore, if the Commissioner sets aside the findings of fact contained in a decree or decision, the higher forum; that is, the revisional authority will be competent to interfere on facts also. Thus the proviso lays down a conditional bar to the setting aside of concurrent findings of facts reached by the Tribunal and confirmed by the Commissioner. This view of the combined reading/interpretation of I sections 10, 11 and 12, was also adopted by this Court in an order of refusal to' grant leave to appeal. See Said Rahman v. Mst. Bacha Haram and 3 others 1991 SCMR 1294. In another case Mirwas Khan ‑v. Addl. Secretary (1991 SCMR 1893), this Court declined to interfere with Peshawar High Court judgment, wherein the findings of fact by the Commissioner in appeal under section 11 of the Regulation, were restored in its Writ jurisdiction, by setting aside a revisional order under section

12. The learned Judges have also relied, in this case, on section 107, C.P.C. by virtue of the option to do so, allowed by section 11(3) of the Regulation applicable in this case. They were pleased to note and observe as follows:‑‑ "His other contention was that under subsection (3) of section 11 of the Regulation the Commissioner could exercise all or any of the powers conferred on an appellate Court by the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) and that under subsection (2) of section 107 of the Code the appellate Court has the same powers and can perform as nearly as may be the same duties as are conferred and imposed by the Code on Court of original jurisdiction. The learned counsel for the petitioner had actually urged that although under subsection (2) of section 11 of the Regulation the Commissioner could confirm, modify, alter or set aside any decision, decree or order appealed against but under the provisions of subsection (3) thereof he could exercise as appellate Court, only those powers which were exercisable by the Court of the Deputy Commissioner under the Regulation". This contention was upheld as follows:‑ "Since under section 11 of the Regulation the Commissioner can exercise the same powers as are conferred on the Deputy Commissioner, and although under subsection (2) of section 11 of the Regulation the former could confirm, modify, alter or set aside any decision, decree or order appealed against yet such power would be subject to the limitation as is envisaged for the Deputy Commissioner under subsection (3) of section 10 of the Regulation. In arriving at this conclusion we keep in mind that the Regulation is a special law made for special areas where special conditions exist and the unanimous or majority finding of the Jirga has been given due protection in subsection (3) of section 10 of the Regulation and that protection shall equally apply in the case of appeal filed before the Commissioner under section 11 of the Regulation. We, therefore, find ourselves in agreement with the contention of the learned counsel for the petitioner and the learned Advocate‑General and hold that the power of the Commissioner to decide an appeal filed under section 11 of the Regulation will be subject to the condition as laid down in subsection (3) of section 10 of the Regulation. The Commissioner shall not have the power to discard the unanimous or majority finding of the Jirga when deciding an appeal unless he is of the opinion that there is any defect in the proceedings as laid down in subsection (2) of section 10 of the Regulation in which case he may remand the matter or issue to the Deputy Commissioner directing him to adopt any course of action laid down in subsection (2) of section 10 of the Regulation when any such remand order is made:" To the similar effect is the reasoning in the Full Bench decision noticed earlier. With respect to the learned counsel who argued this case in the High Court, while explaining the induction of section 107? C.P.C. by virtue of section 11(3) of the Regulation he wrongly thought or at least it was so assumed in the impugned judgment, that by thus joint reading of the' Regulation and C.P.C. the Commissioner had "only those powers which were exercisable by the Court of the Deputy Commissioner under the Regulation." Section 107,' C.P.C. reads as follows:‑‑ "

107. Powers of Appellate Court.‑‑(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power:‑‑ "(a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Court of original jurisdictions in respect of suits instituted therein".. Subsection (2) of section 107 does not limit the powers of an appeal Court to only those which are exercisable by the trial Court. They are rather in addition to powers and duties of an appeal Court. They may or 'May not be exercised. One or more other options might be found enough, depending upon case to case. Not only this, section 107(2), C.P.C. refers to those powers and duties, which are conferred and imposed by the C.P.C. on the trial Courts, regarding suits instituted therein. When the Commissioner by virtue of section 11(3) of the Regulation would choose to exercise the powers under section 107(2), C.P.C. they will not be confined only to what the Deputy Commissioner can exercise under section 10(2) or (3) of the Regulation. Though these provisions have no direct relevance to the powers and duties of the trial Courts under the C.P.C. the Commissioner will nevertheless have the power to do what the Deputy Commissioner could do under all of the provisions of section 107, C.P.C. in addition to general and particular powers of appeal conferred by section 11 of the Regulation. Another general feature of the special law in this case, as has been relied upon in the impugned judgment, relates to the area and the people, it is made applicable to. The reference undoubtedly is relevant but to the extent it is permissible by the language of the law and the essential intention underlying the same. Overstretching the same, from case to case, may become counter?productive for the very special purposes the law was enacted. One of them being that the area and people may gradually be afforded similar protective legal covers as are available in other areas of Pakistan. As for example, in the field of political and administrative rights and privileges apart, even in a cognate field of ordinary criminal law and procedures, the legislature, with the obvious purpose as aforesaid, enacted a parallel provision to section 10 herein' namely, section 1.1 of the Provincially Administered Tribal Areas Criminal Law (Special Provisions) Regulation No.1 of 1975; on the same day as Civil Procedure Regulation, involved herein. There under even the Deputy Commissioner was, clearly given, similar powers which as held already, are exercisable by Commissioner (the appellate forum) in this matter. Thus the wisdom of the legislature, when followed and respected, the same shall be the conclusion. In the light of the foregoing discussion, with respect, we do not agree with those judgments of the High Court, which as in the impugned judgment, confined the powers of the appeal forum to those under section 10 only. On the other hand we are of the view that they, as discussed above, are much wider‑?both as regards the facts and the law. Consequently, this appeal is allowed. The impugned judgment is set aside and the case is remanded to the High Court for decision/disposal of Writ Petition on points of facts and merits, if any, other than those dealt herein. M.B.A./N‑309/S????????????????????????????????????????????????????????????????????? ??????????? Appeal allowed.