1989 PLP 2081 (CLC)

MUHAMMAD ISHAQ KHAN, J.‑‑Haji Faiz Muhammad, petitioner herein, has filed this Constitutional Petition for seeking a declaration to the effect that the orders of respondents 1 and 3 in favour of respondents 4 and 5 herein and the order of respondent No.2 whereby he remanded the case to respondent No.l are without lawful authority and of no legal effect.

2. Brief facts of the case are that Haji Faiz Muhammad, petitioner herein, filed a suit in the Court of Assistant Commissioner, Mingora (respondent No.l) (exercising the powers of Deputy Commissioner under PATH Regulation) against respondents Nos. 4 and

5. Respondents 4 and 5 submitted their written statement wherein they specifically raised the plea of limitation. The Assistant Commissioner (respondent No. 1) referred the matter to a Jirga consisting of Tehsildar Matta as Chairman and Qasim Jan and Arab Khan as Members. The Jirga Members after recording evidence returned their findings. According to the findings of the Chairman of the Jirga he observed in his award that the respondents are not tenants of the petitioner as they have purchased the suit land from Behramand and Manjawar Mulla vide deeds dated 4‑6‑1944 and 1‑11‑1952 respectively. Thereafter a dispute regarding demarcation of the land had also arisen between Shamaas and the respondents in the year 1961 but later on a compromise was effected between the parties and even by now 19 years have been passed since the compromise between Shamaas and the defendant/respondents but the plaintiff‑petitioner has never claimed the property in dispute right from the year 1944 and, therefore, his suit is clearly barred by time. As against this verdict of the Chairman, the other two Jirga Members gave a unanimous award in favour‑ of the petitioner whereby they declared the petitioner as owner of the suit land. The Assistant Commissioner on receipt of the said Award accepted the minority view of the Chairman of the Jirga and dismissed the suit of the petitioner as barred by time vide his orders dated 28‑1 1981. Against this order the Petitioner went in appeal before the Additional Commissioner Malakand Division (respondent No.2) who vide his judgment dated 4‑5‑1982 accepted the appeal of the petitioner and remanded the case to the Assistant Commissioner for referring the matter to a fresh Jirga. Dissatisfied with the above orders the respondents filed a revision petition before the Additional Secretary Home and Tribal Affairs Department, NWFP (respondent No.3) who accepted the revision petition, set aside the order of Additional Commissioner and restored the orders of Assistant Commissioner Mingora. Hence this petition.

3. We have heard the learned counsel for the parties and have also perused the record of the case.

4. The learned counsel for the petitioner contended that the Assistant Commissioner after referring the matter to Jirga and that too without deciding first the question of limitation was legally bound a/s 10 of the PATH Regulation to either accept the majority award of the Jirga or to refer the dispute to a fresh Jirga.

5. We also find ourselves in agreement with the arguments of the learned counsel for the petitioner because under section 4(2) of the PATA Regulation the Assistant Commissioner was under his legal obligation to decide first the question of limitation before referring the matter to Jirga especially when the respondents had categorically agitated the point of limitation in their written statement. In spite of this illegality the Assistant Commissioner again traveled beyond the scope of his jurisdiction when he accepted the minority award of the Jirga by ignoring the provisions of section 10 of the PATA Regulation. In these circumstances, clearly .the Assistant Commissioner has acted without lawful authority and in excess of jurisdiction by not deciding the question of limitation in the case

6. In our view the learned Additional Commissioner had rightly observed in his order that the learned Assistant Commissioner should have complied with the provisions of section 4(2) and 10 of the PATA Regulation. It may be mentioned here that under section 4(2) of the PATA Regulation it is provided that a case shall not be referred to a Jirga if a Civil Suit in respect thereof would be time barred under any rewaj, custom or usage having the force of law. Further Section 10 of the PATA Regulation provides that:‑ (1) The finding of the Jirga on a matter or 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 reason for such finding. (2) Upon receipt of a report of the Jirga, the Deputy Commissioner may if the report does not give a finding on any matter or issue referred to the Jirga or any substantial part thereof, or if he is of opinion that there has been material irregularity or that the proceedings of the Jirga have been so conducted as to occasion a miscarriage of justice, remand the matter or issue to the Jirga or refer the matter or issue to a second Jirga constituted in accordance with section 5. (3) Where the finding of the Jirga on the matter or issue referred to 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. However, in spite of these clear provisions of law which are applicable to the cases coming under Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation No.II of 1975, respondent No.3 (Secretary Home and Tribal Affairs Department) again at the revisional stage without any cogent reasons misinterpreted the same and illegally rectified the commission of the learned Assistant Commissioner by restoring the orders of respondent No.l which were clearly based in violation of law.

7. For the aforesaid reasons we would accept this Writ Petition, set aside the orders of respondents 1,2 and 3 remanded the case to the Assistant Commissioner Mingora (respondent No.l) with the direction to proceed with the case in accordance with the provisions of PATA Regulation by deciding the question of limitation himself after providing proper opportunity to both the sides of producing their respective evidence in support thereof. No order as to costs. A.A./844/P Case remanded.