P L D 2006 Quetta 1 (PLP)

MEHTA KAILASH NATH KOHLI, J.

Petitioners claim that they belong to indigenous tribe of Khudaidad Zai, Begzai, and as per tribal system own a specific culture, whereby; a caste/tribe is presided over and represented through tribal Chief i.e. Sardar. It is the claim of petitioners that their tribe was represented by their father namely Abdul Khaliq being Sardar of the tribe since long, and; after his death, according to their tribal culture ( ), petitioner No.2 namely Haji Abdul Lateef, being elder son of Sardar Abdul Khaliq, became new Sardar of the tribe, who surrendered his right of Sardar in favour of petitioner No.1 i.e, Sardar Haji Muhammad Yousaf. It is the claim of petitioners that petitioner No.1 being owner of more than 400 acres of property in the area of Muslim Bagh, and; to preserve his tribal culture i.e. Sardari System, called Government officials as well as his tribesmen, who accepted the petitioner No.1, as Sardar of Khudaidad Zai, Begzai tribe, in this behalf an acknowledgment deed in respect of Sardari was also executed. It is further the case of petitioners that petitioner No.1 approached District Co-ordination Officer, Killa Saifullah (respondent No.1) for confirmation of his status, but he refused to do so. Petitioners sought following prayer in this petition:

"It is, therefore, accordingly respectfully prayed that this Honourable Court may kindly be pleased to declare in the following terms:

(a) That Sardari System is part of culture in the tribal system. (b) That petitioner No.1 is the Sardar i.e. Chief of the Tribe Khudai-Dadzai, Begzai in Muslim Bagh, District Killa Saifullah. (c) Any other relief, which this Honourable Court may deem fit and proper." Mr. Manzoor Ahmed Rahmani, learned counsel appearing for petitioners has contended that the petitioner No. l being son of `Sardar' is required to be declared as part of their culture in view of Article 28 of the Constitution of the Islamic Republic of Pakistan, 1973. During course of arguments, it was pointed out that `System of Sardar' has been abolished vide Ordinance XXXV of 1976 published on 8th April, 1976 by System of Sardari (Abolition) Ordinance, 1976. Learned counsel still persisted that the petitioner. No.1 be declared as `Sardar'. We have heard learned counsel for petitioners and perused the record. In order to appreciate the arguments advanced by learned counsel in the light of above Ordinance, it is necessary to reproduce herein-below, Article 28 of the Constitution of the Islamic Republic of Pakistan, 1973:

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28. Preservation of language, script and culture.

Subject to Article 251 any section of citizens having a distinct language, script or culture shall have the right to preserve and promote the same and subject to law, establish institutions for that purpose." Above fundamental right clearly provides that the citizens having a distinct language, culture and script have rights to preserve, all these subject to law framed in this behalf. The custom of language, script and culture does not include appointment of `Sardar' which institution A under Ordinance, 1976, stood abolished and all those cultural customs to that extent have been declared to be against the provisions of law relating to Sardari System. Section 3 of the Ordinance, 1976 clearly provides in the following terms:

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3. Abolition of system of Sardari.

Notwithstanding any custom or usage, as from the commencement of this Ordinance, the system of Sardari shall stand abolished and no person shall

(a) exercise any judicial powers not expressly conferred on him by or under any law for the time being in force; or (b) maintain any private jail; or (c) save as provided in the Code of Criminal Procedure, 1898 (Act V of 1898), or any other law for the time being in force, arrest or keep in custody any person; or (d) take free labour from any person or compel any person to labour, against his will; or (e) demand or receive, by reason of being or having been a Sardar, any tribute or any other payment, whether in cash or in kind." In view of. above provision of law, the relief claimed by the petitioners cannot be granted. Thus, the present petition being legally not competent is directed to be dismissed in limine. H.B.T./18/Q???????????????????????????????????????? ??????????????????????????????????????????????? Petition dismissed.