P L D 1959 (W (PLP)

Abdul Latif Khan for Respondents Nos. 6 to

20. Date of hearing : 3rd March 1959. Khan Sahib Mahmood Jail of Kafoor Bheri owned extensive property in the shape of land, hujra, bungalow, gardens and stables. Some of the land was situated in Shahi Payan. On the 3rd of September 1918, he made a will the language of which was extremely vague. He died on the 23rd of February 1919. It is not clear from the record as to how many sons survived him, but it is quite obvious that four sons were born to him, namely, Walijan, Abdul Khaliq, Abdul Malik and Ahmad Ali, and at the time of his death, Walijan, his eldest son; came in possession of a major portion of his property. Walijan also died on the 2nd of June 1926. He left behind four sons, Muhammad Akram, Tahmash Khan, Faqir Muhammad and Abdullah Khan, Abdul Khaliq was also riot living at the time and was represented by his son Abdul Hamid Khan. Similarly, Ahmad Ali Jan had also died, laving behind Abdul Majid Khan and Fazal Baqi Khan. A dispute then arose between all these persons with regard to the interpretation of the will. The dispute was whether Walijan, on the death of his father, got into possession of bulk of the property by virtue of his primogeniture or by virtue of his position as the senior member of the family. The difference was that in the first case the property was to be inherited by his heirs, while in the second case by the person whoever at the time being was the senior member of the family. The matter was referred to the decision of the Council of Elders under section 8 of the Frontier Crimes Regulation, and a decree granted by Mr. I. G. Atcheson, the then Deputy Commissioner, Peshawar, on the 23rd of January 1934, distributing the property mostly in accordance with the award submitted by the said Council of Elders. Haji Abdul Malik Khan was adjudged the senior member of the family and put in possession of the major portion of the property. Subsequently, Fazal Baqi Khan and Abdul Majid challenged the right of their uncle Haji Abdul Malik Khan to retain the property given to hint under the above decree on the ground that by ill‑treating the younger members of the family he had forfeited the right to be considered as an elder. On their application, tire matter was again referred by the Deputy Commissioner for a decision by the Council of Elders tinder section 8, F. C. R. and on the submission of an award it decree was granted on the 15th of March 1954. Abdul Hamid Khan then instituted a suit on the 29th of June 1955, in the Court of the Senior Sub‑Judge, Peshawar, attacking the proceedings under section 8, F. C. R. and the consequential decree granted by the Deputy Commissioner on the following grounds:‑ (1) That the proceedings wider section 8, F. C. R. were initi ated by Abdul Majid Khan and Fazal Baqi Khan at the instance of Khan Abdul Qayum Khan, the then Chief Minister of the defunct North‑West Frontier Province with whom lie had very serious political differences. (2) That there was no justification for the Deputy Commis sioner to have started the proceedings under section 8, F. C. R. because there was no danger of an apprehension of the breach of peace for the reason that the plaintiff was in jail at the relevant time. (3) That the Deputy Commissioner, under the orders and at the instance of Khan Abdul Qayyum Khan, appointed a packed jirga quite dishonestly and maliciously, and passed a decree which was quite contrary to law. (4) That the matter had already been settled by a decree dated the 7th of September 1932, and it could not be re‑opened. (5) That the proceedings under section 8, F. C. R. were malacious. (6) That Abdul Qayyum Khan originally appointed his own friends who were M. L. As., as members of the jirga and after wards three Magistrates who were working under him, including S. Darbar Ali Shah, but it was subsequently suspected that he would not give the award as desired by Abdul Qayyum Khan, and therefore, was substituted by Abdul Majid Khan. He prayed for a decree that the proceedings under section 8, F. C. R. were ultra vires and malicious, and constituted a fraud on the statute. He also submitted that they were void, because the matter referred to the jirga was res judicata. He also demanded a decree for permanent injunction to be granted against the defen dants, which included the Province of West Pakistan, and the Deputy Commissioner of Peshawar, restraining him not to refer the matter under section 8 of the Frontier Crimes Regulation for the decision of the Council of Elders. This suit has been dismissed by the learned Senior Sub‑Judge, Peshawar, on the ground that the jurisdiction of the Civil Court was barred under sections 10 and 60 of the Frontier Crimes Regulation. Abdul Hamid Khan has come up on first appeal to this Court. Before discussing the instant case, it seems necessary to repeat here the oft‑discussed fundamental principle of law that a litigant having a grievance of a civil nature has a right to institute a suit in some Court or other unless its cognizance is either expressly or impliedly barred. Every presumption is to be indulged in favour of the retention of the ordinary powers of the Court for this is the only place where the citizen may be heard to urge that he has been wronged and a particular authority has failed to conform to the limits .set upon the use of the granted powers. If the relevant authority acts in excess of the power or violates the stated principles of the law under which he pretends to act it is the duty of the Court to declare it so. The expressions of the framers of the particular instrument, the decision of the Courts in interpreting such an instrument and the writings of the great commentators will be searched in vain for any suggestion that there exists the authority whereby every provision and every implication arising from that instrument may be subverted. The exercise of power by the executive or quasi‑judicial bodies must be held subject to judicial restraint. The Courts in every civilized country are superior to the judgments of all other institutions. It is their duty to see that the authorities do not get across the path of the end for which the particular law is enacted. Whatever form a Government may take it is the duty of the Courts to guard the freedom and the liberty of a subject and his ordinary civil rights. The Courts alone can judge the facts of a situation and its relationship to the law. Another fundamental principle of law is that all laws which trench on the usual jurisdiction of a Civil Court must be very strictly construed. Lately it has become the habit o:' the different Governments in this country to put a curb on the powers of the Courts in order to shield their own autocratic and arbitrary acts. It is, therefore, all the more necessary now to interpret the laws limiting the powers of the Court very liberally and in favour of tile subject and the law examined with special diligence. Coming to the case in hand, section 10 of the Frontier Crimes Regulation lays down that no Civil Court shall take cognizance of any claim with respect to which the Deputy Commissioner has procedure section 8, subsection (3), clause (a), clause (b), or clause (d). Section 60 of the same Regulation is to the follow ing effect "Except as therein otherwise provided, no decision decree, sentence or order given, passed or made, or act done, under Chapter III, Chapter IV, Chapter V, or Chapter VI shall be called in question in, or set aside by, any Civil or Criminal Court." Looking at both these sections a little carefully, it is not difficult to find that the protection under them has been given to those orders or decrees passed by the Deputy Commissioner which are permissible under the relevant provisions of the Regu lation In this case, we are concerned with section 8, which lays down that where the Deputy Commissioner is satisfied, from a Police report or other information that a dispute exists which is likely to cause a blood feud, or murder, or culpable homicide not amounting to murder,‑or mischief, or a breach of the peace, or in which either or any of the parties belongs to a frontier tribe, he may, if he considers that the settlement thereof in the manner provided by this section will tend to prevent or terminate the consequence anticipated, and if a suit is not pending in respect of the dispute, make an order, in writing, stating the grounds of his being so satisfied referring the dispute to a Council of Elders, and requiring the Council to come to a finding on the matters in dispute after making such inquiry as may be necessary and after hearing the parties. The Deputy Commissioner is not entitled to take an action under this section of the Regulation unless the conditions precedent to such action as are specifically laid down in the section are complied with. If a party to the dispute brings a suit, alleging that the Deputy Commissioner has taken an action under section 8, F. C. R. not for the reasons mentioned in the section, but for reasons extraneous to it, namely, on account of some ulterior motive, or under pressure from higher authority, then, in my view, the Civil Court has the clear authority to give a verdict whether the Deputy Commissioner had acted under section 8 or not, or his act was a fraud on the statute. Section 10 and section 60, which clearly lay down that the acts done "under the Regulation" are protected, do not cover the cases in which the acts are not done "under the Regulation." The Deputy Commissioner cannot re granted while pretending to act under the Frontier Crimes Regulation autocratic omnipo tence. Supposing a Deputy Commissioner, in order to decide his own dispute with his enemies, refers the dispute to the decision of tile Council of Elders under section 8 maliciously and capriciously, it will be totally wrong to say that the aggrieved party has no right to bring the suit, because it is barred under section 8 or section 60 of the Frontier Crimes Regulation. In such a case, the Deputy Commissioner acts not under the Regulation but in abuse thereof and so absolutely without jurisdiction and the Civil Courts are not deprived of their jurisdiction to say that he has so acted. But, if the Civil Court arrives 'at the conclusion that the plaintiff has failed to show that the Deputy Commissioner has acted maliciously or on account of the reasons extraneous to section 8, then the application of sections 10 and 60 of the Regulation will be attracted and the Civil Court will refuse to proceed further with the case. It is clearly within the jurisdiction of the Civil Court to go into the question whether the decree granted by the Deputy Com missioner on the 15th of March 1954, was ultra vires, malicious, and a fraud on the statute. I the Court holds that it is so, then the plaintiff is entitled to the decree claimed for. The only question on which there can be some doubt is about the jurisdiction of the Court to go into the question whether the Deputy Commissioner was barred to refer the dispute between the parties to the Council of Elders after it had once been settled by a decree under section 8 of the Frontier Crimes Regulation. The Civil Court may, after hearing the parties, decide this question one way or the other, and I decline to make any comments upon it. I, therefore, accept this appeal, set aside the judgment and decree of the trial Court, and remand the case to the Senior Sub‑Judge, Peshawar, for trial in accordance with law. A. H. Case remanded.