P L D 2002 Supreme Court 495 (PLP)

ABDUL HAMEED DOGAR, J.--This civil petition for leave to appeal is directed against the judgment dated 11-4-2000 of the learned Division Bench of Peshawar High Court, Peshawar whereby Writ Petition No.229 of 1987 tiled by the respondent was allowed.

2. Briefly stated the facts leading to 'the filing of the petition are that on 23-12-1965 Syed Badshah Gul, father of the respondents mortgaged land measuring 216 Kanals, 13 Marlas situated in Wand Jharay, Sakha Kot area, Malakand Agency through mortgage deed in favour of petitioner-Umar Baz Khan against a sum of Rs.1,20,000 for a period of six years with possession, Failing to refund the mortgage money within the above period, the property so mortgaged would be deemed to have been sold to the mortgagee with further payment of Rs.30,

000. The mortgagor offered the mortgage amount for redemption before expiry of the period but mortgagee was reluctant to receive the money and prolonged the negotiation in order to expire the stipulated period. The mortgagor approached A.D.M. Chakdara on 13-12-1971 (10 days before the expiry of stipulated period) through an application mentioning that the mortgagee is reluctant to receive mortgage money and had also cut down 90 trees. The above claim was denied by the mortgagee and claimed that he had become owner of the property in terms of the mortgage deed. On 6-4-1973 the dispute was referred under the Frontier Crimes Regulation, 1901 (Regulation III of 1901) to the Council of Elders who vide 3/4 majority recommended oath to the mortgagee and held that in case he took Oath the claim of mortgagor for redemption would be rejected and mortgagee would be asked to deposit Rs.30,000 within a week. Failing to take oath the claim of mortgagor was to be decreed on payment of mortgage amount. The said award was accepted by the petitioner whereas Mused by the respondents. Meanwhile F.C.R. was repealed through Regulation I of 1973 with effect from 23-8-1973.

3. Due to repeal of F.C.R. it was ordered that the case shall be decided under the ordinary law of the land and Assistant Collector 1st Grade Malakand Agency, Dargai decreed the suit of plaintiff mortgagor on 19-11-1974. The mortgagee-petitioner preferred an appeal to the Commissioner, Malakand Division, Saidu Sharif Swat-respondent No. 14 who accepted the appeal, set aside the above order and remanded the case for disposal 'under F.C.R. vide his order dated 10-5-1975.

4. Petitioners preferred revision petition before the Deputy Secretary-III, Home and Tribal Affairs Department, Peshawar who maintained the order of the Commissioner, Malakand. Ultimately, Council of Elders consisting of five members under the F.C.R. gave an award dated 19-6-1978 directing the mortgagee to take an oath about the payment of mortgage money in time which was taken by him in absence of the respondent/mortgagor. The award of the Jirga was accepted by the A.D.M., Malakand vide order dated 24-6-1978 which was challenged in revision petition before the Commissioner but the same was dismissed on 27-2-1980. The respondents challenged the above order through Writ Petition No.211 of 1980 which was admitted to full hearing but was subsequently withdrawn on 13-2-1984 with the permission to file a fresh one. Since the matter was remanded so as per decision of Jirga accepted by the A.D.M. the suit of the mortgagor for the redemption was dismissed and it was declared that the mortgagee had become absolute owner of property in his possession.

5. It was again in April, 1987 respondents tiled Writ Petition No.229 of ' 1987 before the Peshawar High Court which was allowed and the concurrent findings of A.D.M., Dargai, the Commissioner, Malakand and Deputy Secretary-III, Home and Tribal Affairs Department, Government of N.W.F.P. were set aside and the order dated 19-11-1974 of the Assistant Collector 1st Grade, Malakand Agency at Dargai was restored.

6. We have heard Qazi Muhammad Anwar, learned Senior Advocate Supreme Court on behalf of the petitioners as well as Mian Younis Shah, Senior Advocate Supreme Court for the respondents in detail and have gone through impugned judgment as well as record and proceedings of the case in minute particulars.

17. Learned counsel for the petitioners mainly contended that the writ petition riled by the respondents before the learned High Court was hit by (laches) as the earlier petition was withdrawn on 13-2-1984 and the later one was filed on 10-3-1987 after a lapse of about three years. He attacked the impugned judgment of the High Court and stated that learned High Court while condoning the delay has not advanced any valid reasons. He next contended that the orders of the hierarchy under F.C.R. were given effect by administering oath to the petitioner Umar Baz Khan, thus the petition had become infructuous and was not competent. According to him, after the repeal of F.C.R. the proceedings conducted under the same would be valid as protected under Article 264 of the Constitution of Islamic Republic or Pakistan, 1973 and section 6 of the General Clauses Act and the repeal would be of no effect. In support of the above contentions, he placed reliance on the case-law reported in Sardar Nawab Haji Muhammad v. Additional Commissioner and Commissioner, Frontier Crimes Regulation, Quetta Division, Quetta and others PLD 1964 (W.P.) Lah. 401 and Abdul Samad and others v. Painda Muhammad and others PLD 1997 Pesh. 35.

8. Controverting the above contentions, Mr. Younis Shah, learned Senior Advocate Supreme Court for the Caveators/respondents stressed that the learned High Court has dealt with point of limitation in detail in paragraph 8 of the impugned judgment keeping in view the principle laid down by this Court in the case of Chairman, District Screening Committee v. Sharif Ahmad Hashmi PLD 1976 SC 258 wherein the delay of 8 years in filing the petition was condoned. With regard to the administering of Oath to the petitioner-Umar Baz Khan he contended that the Oath was neither in terms of award nor it was in accordance with the general principles of law as envisaged in the Oaths Act, 1873 extended to that area through Regulation No.11 of 1976. The respondents were also not duly served when petitioner Umar Baz Khan was given Oath which is the matter of record. According to him, the F.C.R. was merely a procedural law and not a substantive law thus its repeal would not be retrospective in effect. Moreover, the amendment was made with regards to criminal law only and was called as West Pakistan Criminal Law (Amendment) Act (VII of 1963). No such amendment was made in the civil Law and thus the civil cases pending in the Courts would not be affected. In support, he referred the case of National Bank of Pakistan v. Taj Muhammad PLD 1984 Lah. 417.

9. He lastly contended that even if clog on the right of redemption mentioned in the mortgage deed is taken into account the petitioner would have become the owner only if he had paid the remaining amount of Rs.30,000 which admittedly has not been complied with. It is also on the record that the respondents had approached the authorities under F.O.R. ten days before the expiry of six years, the stipulated mortgage period. In this view of the matter, we are inclined to grant leave to appeal to consider, inter alia, the abovementioned contentions. S.A.K./U-15/S Leave granted.