1998 PLP 867 (SCMR)

MUHAMMAD BASHIR JEHANGIRI, J.

Sharbat Khan petitioner seeks leave to appeal against the order dated 25-8-1997 passed by a learned Judge in Chambers of the Peshawar High Court, Peshawar, whereby the petition for quashment of proceedings pending adjudication before learned Sessions Judge, Bannu, was dismissed in limrne.

2. The factual background giving rise to this petition is that the petitioner's father moved an application before C.I.A., Bannu, claiming ownership of Toyota Pick-Up Model 89 bearing Registration No.PRM-3164. It was taken down in the Daily Diary and an enquiry under section 156(2), Cr.P.C. ensued. The vehicle was also taken into custody. The petitioner and respondent No.1, therefore, made separate applications for delivery of the vehicle on Superdari. The application of the petitioner was accepted while that of respondent No.1 was turned down by the Illaqa Magistrate, Bannu. During the pendency of a revision petition against the said order in the Court of learned Sessions Judge, Bannu, the following order was passed on 13-5-1997:-- "Parties with their respective counsel present. Respondents Nos.2 and 3 present in person. During the course of arguments petitioner and respondent No.1 agreed to the settlement of the dispute through arbitration. As such, Haji Speer and Sawab Khan alias Vatti and Sifatullah Khan, Advocate, Karak appointed as arbitrators. The Arbitrators are directed to submit their award on or before 29-5-1997."

3. Feeling aggrieved, the petitioner moved a petition in the Peshawar High Court for the quashment of the proceedings pending before the learned Sessions Judge including the order referring the dispute to the decision of the Arbitrators. A learned Judge in Chambers of the High Court, after hearing the learned counsel for the petitioner, observed that the impugned order had been passed by the revisional Court with the concurrence of the parties, therefore, the petitioner was "estopped by his own conduct to question the same before this Court under section 561-A, Cr.P.C." According to the learned Judge in the High Court, the order even otherwise seemed to have not been passed in abuse of the process of the Court, conversely, it was "in aid to secure the ends of justice".

4. Mr. Muhammad Ismail Fehmi, Advocate-on-Record, representing the petitioner contends that the appointment of Arbitrators for resolving the dispute forming the subject-matter of this petition regarding the custody of the vehicle in question was legally unwarranted. According to him the criminal miscellaneous petitions are normally disposed of on the, record of the lower Court and, therefore, the revisional Court had no jurisdiction to refer the dispute to the Arbitrators for its resolution.

5. What the learned counsel has tried to canvass before us is that a revisional Court seized of a criminal matter is not legally empowered to refer a dispute like the one in the instant case to arbitration as the provisions of the Arbitration Act (X of 1940) (hereinafter called as the Act) were applicable only to civil disputes. There is no cavil with the proposition that the provisions of the Act are applicable to the civil matters. Nonetheless, there is nothing in the Code of Criminal Procedure against the reference of disputes of the title in or making over custody of the vehicles falling under Chapter XLIII of the Code of Criminal Procedure (Act V of 1898). In this part of the country, there is a Jirga system whereby the parties agree to refer their disputes to what may be termed as 'informal arbitration' to the elders of the community. This system is different than the statutory Iirga system under the Frontier Crimes Regulation enforced in the Tribal Areas of the country. The whole object underlying such an arbitration or reconciliation is to enable the parties to have their disputes arising out of the claims of movable properties or money matters adjudicated upon and decided by the domestic Jirga. The technicalities enacted into the Arbitration Act (X of 1940) are not resorted to. The selection of this form of arbitration by the parties to resolve their disputes is with the object of an expeditious decisions of their disputes and to dispense with the technicalities of law. The parties, having selected such an arbitration/reconciliation for resolution of their differences and disputes, cannot insist open or rely on technicalities in the procedural matter before the members of the Jirga/Conciliators. They are not bound by the procedure prescribed by the Arbitration Act. This mode of resolution of disputes both civil and criminal involving entitlement to the movable property or money disputes are not warranted by any law for the time being in force. Nonetheless, it is one of the diversionary measures which are being resorted to these days to have the disputes resolved through informal Tribunals or bodies by way of reconciliation and mediation. We are, therefore, of the considered view that the learned Sessions Judge, Bannu, had not committed any illegality in referring the dispute to the named Members of the Jirga. No doubt, the learned Sessions Judge has employed the phraseology "settlement of dispute through arbitration" and further used the words "appointed as arbitrators". This terminology seem to have been employed loosely or under a misconception.

6. A fine distinction between arbitration and mediation/reconciliation was drawn by majority view in Muhammad Akram and others v. Ch. Muhammad Salim (PLD 1964 (W.P.) Lahore 490) holding that "arbitration is a settlement of a dispute by the decision not of a regular and ordinary Court of law but of one or more persons who are called arbitrators whose decision the parties agree to accept as binding whether they agree to the decision or not. The essential difference between a mediator and arbitrator was held to be that in the former case the mediator merely brings about and records a settlement arrived between the parties which operates as a contract between the parties while in the case of an Arbitrator or Arbitrators, he or they give the award irrespective of whether the parties accept it or not, after it is given". In this context it was further observed as under:-- "If the parties agree to accept the decision, it is an award though he may in his award embody what he has pursuaded the parties to agree to. Where a person is asked to act as mediator in the settlement of a dispute and records the settlement agreed on by the parties, his act is not that of an arbitrator and the record made by him is not an award and if that record is at all operative it is so only as a contract between those who have signed it. "

7. This principle was later approved by this Court in Muhammad Salim v. Muhammad Akram and others (PLD 1971 SC 516). The distinction between the award and mediation was drawn in second paragraph at page 528 of the report which is reproduced hereunder:-- "The most important characteristic of an award, of course, is that it must emanate from a judicial determination. If a dispute is referred to a person and if that person decides that dispute by holding an enquiry and coming to a decision then undoubtedly what that person decides would constitute an award. On the other hand, if a matter is referred to a person and he is not called upon either to hold an enquiry or to 'give a decision but by the exercise of his sagacity, knowledge or experience to bring about merely an understanding between the parties and restoring peace between them then he would only be discharging functions other than those of an arbitrator. But in order to determine this question one must not look merely at the form adopted or the expressions employed but rather at the substance of what the parties to the dispute really intended the person approached in that behalf to do and how that person acted in that particular matter."

8. After referring to the observations of Lord Esher, H.R. in the case of In re: Caus-Wilson and Green (L.R. 18 QBD 7) it was further opined that where it was difficult to say whether intention is to appoint an arbitrator or to exercise some function other than that of an arbitrator it must be ascertained from the circumstances of each case.

9. Again, in the instant case, not only respondent No.1 but the petitioner had also agreed to the resolution of the dispute through the good offices of the named Members of the Jirga. The learned Judge in the High Court was, therefore, absolutely justified to have raised the question of estoppel against the petitioner. The petitioner has, in fact, acquiesced in the reference of the dispute to the named Members of the Jirga who have been described as Arbitrators not within the contemplation of the provisions of the Arbitration Act but in the ordinary parlance.

10. The petitioner having himself agreed to refer the dispute to the agreed named persons, cannot now turn around and prevent the respondents to get the dispute resolved through those persons.

11. Similar is the case with Arbitration which is resorted to under the law of Qur'an, and it is neither an arbitration under an agreement nor under a statute so the provisions of the Arbitration Act will not be attracted to such an arbitration. Reference may be made to Sura-e-Nisa Verse No.35 which is as under:-- In pursuance of this Qur'anic mandate although without a tacit reference thereto in the Muslim Family Laws Ordinance (VIII of 1961) the appointment of Hakams or Arbitrator in the resolution of matrimonial disputes between husband and wife has been provided for. The arbitration thus completed under Sura-e-Nisa is different from the general concept of arbitration as provided for and regulated under the Arbitration Act (X of 1940).

12. For the foregoing reasons, we are of the opinion that the impugned order of the High Court does not suffer from any infirmity of the kind warranting our interference in our jurisdiction under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973. Leave to appeal is refused and the petition is dismissed. N.H.Q./S-42/S Leave refused.