P L D 1997 Peshawar 35 (PLP)
ABDUL SAMAD and others‑‑‑Appellants Versus PAINDA MUHAMMAD and others‑‑‑Respondents
| Citation | P L D 1997 Peshawar 35 (PLP) |
| Forum / Court | |
| Bench Members | Jalaluddin Akbarji, Qazi Muhammad Farooq and Nasir‑ul‑Mulk, JJ |
| Parties | ABDUL SAMAD and others‑‑‑Appellants Versus PAINDA MUHAMMAD and others‑‑‑Respondents |
Q1: What are the key laws and sections cited in P L D 1997 Peshawar 35 (PLP)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P L D 1997 Peshawar 35 (PLP)?
The case was heard and decided by the bench comprising: Jalaluddin Akbarji, Qazi Muhammad Farooq and Nasir‑ul‑Mulk, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P L D 1997 Peshawar 35 (PLP) (ABDUL SAMAD and others‑‑‑Appellants Versus PAINDA MUHAMMAD and others‑‑‑Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Iqbal Hussain for Appellant.
- Date of hearing: 14th December, 1996.
Headnotes / Summary
(a) Provincially Administered Tribal Areas (Nifaz‑e‑Nizam‑e‑Shariah) Regulation (II of 1994)‑‑ ‑‑‑‑Para. 11(2)(e)‑‑‑Provincially Administered Tribal Areas Criminal Laws (Special Provisions) Regulation (I of 1975), para.11‑‑‑Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation (II of 1975), para.11‑‑‑Civil Procedure Code (V of 1908), S. 113 & O.XLVI, R.1‑‑ Reference to High Court for its opinion on the question as to whether in view of para.11 of Provincially Administered Tribal Areas (Nifaz‑e‑Nizam‑e‑Shariah) Regulation, 1994, cases, appeals or petitions pending prior to promulgation of the Regulation before forums constituted under repealed Regulation (I of 1975), would continue to be heard by the same hierarchy or would stand transferred to Courts established under Regulation II of 1994 in view of judgments of Supreme Court reported as PLD 1995 SC 281 and PLD 1993 SC 341‑‑‑Held, appeals or petitions pending under (repealed) Regulation No.I of 1975 and Regulation No.II of 1975 would be heard and decided by forums under those Regulations notwithstanding repeal of Regulations by Regulation II of 1994, and would not be transferred to Courts established under Regulation II of 1994. Government of N.‑W.F.P. v. Muhammad Irshad PLD 1995 SC 281; Nabi Bakhsh v. Khuda Bakhsh and 6 others 1994 MLD 325; 1994 MLD 320; Saiyyid Abu A'la Maudoodi and others v. The Government of West Pakistan and others PLD 1964 SC 673; PLD 1993 SC 341; Muhammad Irshad and others v. Assistant Commissioner, Swat and others PLD 1990 Pesh. 51; Haji Muhammad Hussain etc, v. Province of Balochistan etc. NLR 1995 Cr.LJ 313 ref. (b) Provincially Administered Tribal Areas (Nifaz‑e‑Nizam‑e‑Shariah) Regulation (II of 1994)‑‑‑ ‑‑‑‑Para. 11‑‑‑Provincially Administered Tribal Areas Criminal Laws (Special Provisions) Regulation (I of 1975), para.11‑‑‑Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation (II of 1975), para.11‑‑ Civil Procedure Code (V of 1908), S.113 & O.XLVI, R.1‑‑‑Reference to High Court seeking guidance that if cases pending before forums set up under (repealed) Regulation of 1975 were transferred to Courts established under Regulation II of 1994, and whether District Judge would be competent to hear appeal against judgments of Deputy Commissioners passed under repealed Regulation of 1975‑‑‑Held; Courts established under Regulation II of 1994 including District and Sessions Judges would not be competent to hear appeals against judgments of Deputy Commissioners passed under repealed Regulation I of 1975 and Regulation II of 1975‑‑‑Pending cases before trial forums under repealed Regulations were to be transferred to appropriate Courts of ordinary jurisdiction, civil and criminal for trial of cases and judgments thereupon under the law and procedure applicable to cases under Regulation II of 1994. (c) Provincially Administered Tribal Areas Criminal Laws (Special Provisions) Regulation (I of 1975)‑‑‑ ‑‑‑‑Para.11‑‑‑Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation (II of 1975), para.11‑‑‑Decision of pending appeals and revisions‑‑‑Remand‑‑‑Where any appeal or revision has to be decided by hierarchy of forums under repealed Regulations then they would decide such matter according to law and procedure applicable under those Regulations‑‑‑In case of remand by such forums for trial afresh, such case would be tried by forums of ordinary criminal and civil jurisdiction. Abdul Halim Khan, Zahurul Haq, Bar‑at‑Law and M. Sardar Khan Amicus curiae. Shah Jehan Khan, Addl. A.‑G. and Samdat Hussain, A.A.‑G.
Judgment & Decree
JALALUDDIN AKBARJI, J.‑‑‑Abdul Samad and others instituted suit on 25‑8‑1986 before the competent forum under PATA Regulation II of 1975 which suit was dismissed on 29‑2‑1992. Abdul Samad and others filed appeal which was pending hearing before the appellate forum under PATA Regulation 11 of 1975 when in the meanwhile the august Supreme Court of Pakistan announced a judgment dated 12‑2‑1994 in the case "Government N.W.F,P, v. Muhammad Irshad PLD 1995 SC
281. Abdul Samad and other therefore, filed an application before the appellate forum for withdrawal appeal and presented the same before the learned District Judge, Swat on 1994. Mr. Muhammad Sher Shah, Additional District Judge/Izafi Zilla Qazi referred the following matter for decision to this Court under section 113 order 46 of C.P.C.:‑‑ "I am in respectful agreement that this decision shall not affect cases already concluded finally." The Hon'ble Chief Justice constituted a Full Bench of this Court by formulating the following points .and appointed Mr. Zahurul Haq, Advocate and Mr. M.Sardar Khan, Advocate, Amicus curiae, with notice to the Attorney‑General of Pakistan and the Advocate‑General, N.‑W.F.P.:‑‑ (1) Whether, in view of clause (e) of sub‑para. (2) of Para. 11 of PATA (Nifaz‑e‑Nizam‑e‑Shariah) Regulation (II of 1994) the cases, appeals or petitions pending prior to the promulgation of the said Regulation before the forums constituted under the repealed Regulations of 1975, shall continue to be heard by the same hierarchy or would stand transferred to the Courts established under Regulation II of 1994, in view of the judgment of the august Supreme Court reported as PLD 1995 SC 281 and PLD 1993 SC 341? (2) If such cases are transferred to the Courts established under Regulation II of 1994, whether the District Judge would be competent to hear appeals against the judgment of Deputy Commissioners passed under the repealed PATA Regulation, 1975?
3. Before answering this Reference, it will be relevant to refer to the judgment in the case of "Muhammad Irshad and others v. Assistant Commissioner, Swat and others, decided on 24‑2‑1990 (PLD 1990 Peshawar 51) and to reproduce the relevant para. 21. of the judgment as under:‑‑ "
21. In the light of what has been stated above, the impugned provision of Provincially Administered Tribal Areas Criminal Law (Special Provisions) Regulation (Regulation No.1 of 1975), as amended, laying down procedure for trial of offences mentioned therein and the remedies provided there to are declared as violative of Article 25 of the Constitution. Resultantly the trials under the said Regulation of the accused in Petitions Nos.417/89,422/89,401/89 and 28/90 are quashed. It is directed that they be put to trial before a Criminal Court of competent jurisdiction. Similarly, the impugned provisions of Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation II of 1975, as amended, providing procedure for settlement of disputes are declared as violative of Article 25 of the Constitution .and, as such, the Jirga under the said Regulation shall cease to exercise jurisdiction over the dispute involved in Constitutional Petition No.495/89 and it is directed that the same be transferred to a Civil Court of competent jurisdiction. ", The august Supreme Court of Pakistan decided on 13‑2‑1993 the case of "Government of N.‑W.F.P. through Chief Secretary and another v. Muhammad Irshad and 3 others (PLD 1993 Supreme Court 281) and the relevant Para, 26 and Para. 10 are reproduced as under:‑‑ "
26. In view of what has been stated above it is difficult to regard the Regulations in question as measures conducive to the peace and good Government of the areas for they have not only replaced the ordinary judicial system which is in force in the other parts of Pakistan without any apparent justification but have introduced a set‑up which is condemned by the residents of the areas. They can therefore hardly be regarded as legitimate exercise of the extraordinary power which the President and the Governor enjoy in reference to the Areas under Article
247. I would accordingly decline to interfere with the unanimous opinion of the High Court that the Regulations are not `' pieces of valid law though on different grounds. I would accordingly dismiss all the appeals preferred by the Provincial Government with costs. I would also dismiss the Human Rights' case as it does not involve a violation of a Fundamental Right. It may, however, be added that this judgment will not affect cases, both criminal and civil, which have since been disposed of by the Jirgas constituted under the Regulations.
10. As the Human Rights' case attacks the applicability of this very law and Fundamental Right of equality is violated by it, the same declaration should follow in that, in exercise of our original jurisdiction under Article 184(3) of the Constitution. Besides, the applicant in that case be admitted to bail in the sum of rupees fifty thousand with two sureties in like amount to the satisfaction of the High, Court. I am in respectful agreement that this decision shall not affect cases already concluded finally." The Governor of N.‑W.F.P. with the approval of the President made the PATA (Nifaz‑e‑Shariah) Regulation, 1994 known as "N.‑W.F.P. Regulation No.II of 1994" and notified the same on 14‑11‑1994 where by N.‑W.F.P. Regulation No.1 of 1975 and N.‑W.F.P. Regulation No.II of 1975 were repealed with effect from 12th day of February, 1994 under section 11 of the N.‑W.F.P. Regulation No.II of 1994 which is reproduced as under:‑‑ "
11. Repeal.‑‑(1) The Provincially Administered Tribal Areas Criminal Law (Special Provisions) Regulation, 1975 (N.‑W.F.P. Regulation I of 1975), and the Provincially Administered Tribal Areas Civil Procedure (Special Provision) Regulation, 1975 (N.‑W.F.P. Regulation II of 1975). are hereby repealed, and shall be deemed to have been so repealed with effect from the 12th day of February, 1994. (2) Notwithstanding the repeal of laws under subsection (1) of this section or cessation of any law, instrument, custom or usage under section 4, the repeal or cessation, as the case may be, shall not‑‑ (a) revive anything not in force or existing at the time at which the repeal or cessation takes effect; (b) affect the previous operation of the law, instrument, custom or usage or anything duly done or suffered thereunder; (c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under the law, instrument, custom or usage; (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law, instrument, custom or usage; or . (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law, instrument, custom or usage had not been repealed or ceased to have effect, as the case may be.
4. Mian Iqbal Hussain, learned counsel for Abdul Samad Khan and others submitted that PATA Regulations Nos.I and II of 1975 were repealed by PATA Regulation 11 of 1994 and section 11 in PATA Regulation II of 1994 is the same which is given in section 6 of the General Clauses Act and Article 264 of the Constitution. Learned counsel, therefore, concluded that the proceedings under PATA Regulations I and II of 1975 cannot continue because both the Regulations have been declared void by the august Supreme Court of Pakistan. Therefore, the appellants before the appellate forum of PATA Regulation No.II of 1975 withdrew the appeal and have now filed the same before the learned District Judge. Learned counsel referred to various provisions of the Constitution, General Clauses Act, Judgments and contended that he has rightly filed the appeal before the District Judge, who is competent to hear the appeal from the award/decision of the trial forum under PATA Regulation II of 1975. Mr. Abdul Haleem, Advocate, for Painda Muhammad submitted that when a law is declared void on the touchstone of the fundamental rights, then it does not cease to exist but remains inoperative. PATA Regulation 11 of 1994 including section 11 of the Regulation is a valid piece of legislation and, therefore, cannot be struck down in a Reference under section 113 of the C.P.C. Mr. M. Zahurul Haq, Advocate, amicus curiae, submitted that this Court is to confine itself to the Reference under section 113, C.P.C and unless a competent forum declares the provisions of section 11(2)(e) of Regulation 11 of 1994 in conflict with Constitution the provision of the Regulation shall remain in force and in operation. The appeal before the District Judge either by way of transfer or institution is not competent. Mr. M. Sardar Khan, Advocate, amicus curiae, submitted that question of law and as well confusion is involved in this reference. Much stresss was laid upon the words "concluded finally" in para. 10 of the judgment of the august Supreme Court of Pakistan, referred to hereinabove. The dictionary meaning of conclude' was referred and inference was drawn from the same that unless a matter is decided finally it will remain a matter which will require a final conclusion. Learned counsel answered to a query in this connection and it was submitted that a matter in appeal, in revision, in a Constitutional petition and before the Supreme Court of Pakistan will not be finally concluded unless it is decided so. However, the learned counsel pointed out that the Constitutional petition decided by this Court PLD 1990 Peshawar 51 was arising out of pending proceedings before the trial forums of PATA Regulations I and II of 1975 and the matter was not concluded before it. The learned Advocate‑General and as well the Deputy Attorney‑General adopted the arguments of Mr. M. Zahurul Haq, Advocate, amicus curiae, and submitted that the law has been brought in conformity with the judgment of the august Supreme Court of Pakistan by promulgation of PATA N.‑W.F.P. Regulation II of 1994 and the said Regulation is a valid piece of legislation including section 11 of the Regulation. The gist of the arguments of all the learned counsel is that in deciding this Reference, this Court is to rely upon the judgment of the august Supreme Court of Pakistan in the case of Saiyyid Abul A'la Maudoodi and others v. The Government of West Pakistan and others, Report PLD 1964 SC 673.
5. The judgment in the case of Muhammad Wazir Khan v. The State and 5 others, Report 1994 MLD 320 was delivered in a Constitutional petition and the facts and circumstances of the case have no relevance with the judgment of the august Supreme Court of Pakistan in the case of Government of N.‑W.F.P. v. Muhammad Irshad PLD 1995 SC
281. Similarly is the case of Nabi Bakhsh v. Khuda Bakhsh and 6 others, Report 1994 MLD
325. The judgment of the august Supreme Court of Pakistan in the case of Government of Balochistan through Additional Chief Secretary v. Azizullah Menton and 16 others, Report PLD 1993 SC 341 is to be followed as the Criminal Law (Special Provisions) Ordinance (II of 1968) was para materia with PATA N.‑W. F. P. Regulation No. I of 1975. Para. 17 of the judgment is in the following terms:‑‑ "
17. In these circumstances, as Ordinance II of 1968 is declared to be void being in conflict with Articles 9, 25, 175 and 203 of the Constitution, the question arises what further relief should be granted as in the absence of Ordinance II of 1968 there should be some valid law to hold the field. It has been admitted that District Judges and Civil Judges are functioning in every District. In cases of violation of fundamental rights the superior Courts are empowered to issue direction to the Federal Government or the Provincial Governments to bring the law in conformity with fundamental rights and/or enforce law and issue notification in that regard. The State as defined in Article 7 is bound to discharge its Constitutional obligations. In case of failure even the Legislature and executive can be directed to initiate legislative measures to bring law in conformity with the fundamental rights. In these circumstances, while maintaining the impugned judgments, we dismiss the appeals, declare Ordinance 11 of 1968 as void being in conflict with Articles 9, 25, 175 and 203 of the Constitution and direct the appellant‑‑ (i) to issue necessary notification in terms of subsection (2) of section 1, of Ordinance XII of 1972 for enforcing the aforesaid Ordinance by creating posts of and separately appointing Judicial Magistrates and Executive Magistrates and to place Judicial Magistrates under the administrative control of the High Court within a period of three months; (ii) to take necessary steps as required by the Constitution to amend and implement laws and rules relating to Courts, judiciary and its officers and lower staff to bring them in conformity with Articles 9, 25, 175 and 203 of the Constitution within a period of six months." The implementation of this judgment of the august Supreme Court of Pakistan qua Criminal Law (Special Provisions) Ordinance (II) of 1968 in the Province of Balochistan came up for hearing before a Division Bench of the Balochistan High Court in the case of Haji Muhammad Hussain etc. v. Province of Balochistan etc. (NLR 1995 Cr.LJ 313). The Hon'ble Chief Justice, Mr. Justice Manawar Ahmad Mirza (now Hon'ble Judge of the Supreme Court of Pakistan) being author of the judgment held as under:‑ "Additionally it is a settled principle, that when a statute is declared void or inconsistent to provisions of Constitution, it is not completely wiped off from statute book, but loses its effectiveness and authority for regulating matters falling under this domain from such declaration onwards. It acquires status of a 'sleeping dragon' or a 'Floating Instrument' without any legal potency, which remains dormant or ineffective when fundamental rights or Constitutional provisions inconsistent with said statute hold the field, but awakes from slumber or automatically revives when those Constitutional provisions or fundamental rights are withdrawn or held in abeyance. We have noticed this legal position relating to suspension and revival of Frontier Crimes Regulation and similar legislations which were found repugnant to fundamental rights. Obviously these enactments remained operative when fundamental rights were suspended, but went back to the archives of libraries during the period when fundamental rights had revived. It may further be noticed that consequences of statute having been declared void, or repugnant to provisions of Constitution or fundamental rights is quite distinct from situation when it 'ceases to be operative' or is 'withdrawn'. When enactment 'ceases to be operative' or has been 'withdrawn', same becomes notionally, non‑existent and taken out of statute book, except to the extent specially saved. Whereas in the event, of enactment found repugnant or inconsistent with the provisions of Constitution is struck down, consequences are analogous to repeal and such law remains operative till finalization of pending proceedings." The conclusion of the judgment is as under:‑‑ "Thus considering settled principle of law, legal effect of Notification causing repeal of 'the Ordinance and above discussion we are persuaded to lay down following categories for regulating the pending cases: (i) Matter where on appointment of Tribunal, recording of evidence had commenced before 10th October, 1993, shall be decided by the Tribunal/Deputy Commissioner, and appeals and revisions lie in the hierarchy of forums under 'the Ordinance'. (ii) Matter pending adjudication by way of appeal or revisions shall be finalized uneffected in accordance with provision of 'the Ordinance'. (iii) Matter, irrespective, when offence was committed where cognizance has not been taken or where colourable cognizance is taken but evidence has not commenced by or before 10th October, shall be dealt with and tried under normal law, by the Courts functioning under Criminal Procedure Code; and (iv) Matters which have been finally decided under 'the Ordinance' and transactions are past and closed by or before 10th October, 1993, shall not be open to any inspection, merely because Ordinance II of 1968 has been declared as void law." Another Division Bench of the Balochistan High Court in the case of Abdul Khan and 2 others v. The State and another (PLD 1995 Quetta 12) following this judgment by an elaborate, well‑reasoned and remarkable judgment, written by Mr. Justice Iftikhar Muhammad Chaudhry, came to the following conclusion:‑‑ The upshot of the above discussion, emanates as under:‑‑ (i) The Criminal Law (Amendment) Ordinance, 1990 stands extended to Provincially Administered Tribal Areas without seeking directions of the President of Pakistan under Article 247 (3) of the Constitution of Islamic Republic of Pakistan, 1973. (ii) The Criminal Law (Special Provisions) Application of Provincially Administered Tribal Areas of Balochistan Regulation, 1979, shall remain ineffective and the forums which have already been identified in PLD 1993 SC 341 shall dispose of the criminal cases. (iii) The implication of the Notification dated 12th December, 1993 would be the same as has been held by the Division Bench of this Court in C.P. No.17 of 1994, vide judgment dated 27th June, 1994, and the pending cases, awaiting for decision shall be dealt with on the basis of same criteria, as laid down therein, and has also been reproduced hereinabove. " Nothing more can be added to these two judgments of the Balochistan High Court.
6. The matter before the august Supreme Court of Pakistan for decision was the trial of the cases before the trial forums constituted under PATA Criminal Laws (Special Provisions) Regulation I of 1975 and PATA Civil Procedure (Special Provisions) Regulation II of 1975. The cognizance of offences was to be taken by the Deputy Commissioner under section 4 of PATA N.‑W.F.P. Regulation I of 1975 and the Deputy Commissioner after taking cognizance of an offence was to constitute a Jirga in accordance with section 6 of the Regulation. The finding of the Jirga was to be submitted to the Deputy Commissioner in the form of a report and the Deputy Commissioner after the prescribed procedure under section 11 was to pass an Order either convicting or acquitting any accused under section 11 of the Regulation. The punishment and compensation on the Order of the Deputy Commissioner was regulated by sections 12 and 13 of the Regulation. The trial of offences concluded finally when the Deputy Commissioner passes an Order in the case. The Scheme of PATA N.‑W.F.P. Regulation I of 1975 for the purposes of trial of an offence was trifurcated into three proceedings i.e. Istly, cognizance of the offence and reference to the Jirga; 2ndly, trial before the Jirga; and 3rdly, order of the Deputy Commissioner in the case. The proceedings thus were concluded before the trial forum in criminal cases under the Regulation. Any party aggrieved by any decision given, sentences passed or order made, by the Deputy Commissioner was appealable to the Commissioner under section 23 of the Regulation. The Provincial Government had more powers than the Appellate Court of any proceeding pending before or disposed of by, a Commissioner, Deputy Commissioner or Jirga for the purpose of satisfying itself as to the correctness, legality or propriety of any decision, sentence or order given, passed or made, or as to the regularity of any such proceedings and pass appropriate orders in the case under section 24 of the Regulation. The forums for deciding civil disputes were the same in the PATA Civil Procedure (Special Provisions) Regulation II of y 1975. The Deputy Commissioner on the application of any party to the case was to constitute a Jirga in accordance with section 5 and by order in writing refer the case to Jirga for a finding on such matters or issues as may be specified in the order by virtue of section 4 of the Regulation. The manner of composition of Jirga was provided under section 5 and the Jirga to which the case was referred was to give finding on a matter or issue referred to it and the Deputy Commissioner was to decide the dispute and pass a decree with such finding under section 10 of the Regulation. Like Regulation I of 1975 the proceedings under Regulation II of 1975 were also trifurcated, such as (i) cognizance of the matter and reference to the Jirga; (ii) trial before the Jirga; and (iii), order of the Deputy Commissioner in the case. The appeal from the decision of the Deputy Commissioner was to lie before the Commissioner under section 11 of the Regulation. The Provincial Government under section 12 of the Regulation was competent to call for and examine the record of any appeal disposed of by the Commissioner, for the purpose of satisfying itself as to the correctness, legality or propriety of any decision, decree or order, given, passed or made under the Regulation, or as to the regularity of any proceedings thereunder and may, when calling for such record, direct that the execution of the decree or order in question be suspended pending the examination of the record. The scheme of both PATA N.‑W.F.P. Regulation I of 1975 and N.‑W.F.P. PATA Regulation II of 1975 is that the trial in criminal and civil cases culminated by a final order of the Deputy Commissioner. Thereafter the appeal and petition were to be decided by the competent forums, if preferred any. The august Supreme Court of Pakistan was conscious of these proceedings and, therefore, in para. 26 of the judgment the following was added:‑‑ "It may, however, be added that this judgment will not affect cases both criminal and civil which have since been disposed of by the Jirgas constituted under the Regulations." This addition was further clarified in para. 10 of the judgment with the following observation:‑‑ "I am in respectful agreement that this decision shall not affect cases already concluded finally." Since the case tried before the Jirgas and the proceedings in the case culminated and concluded finally, therefore, as mentioned above, there is no confusion that the cases already, decided by the trial forums under PATA Regulation I of 1975 and PATA N.‑W.F.P. Regulation II of 1975 stands concluded finally after passing order by the Deputy Commissioner and so is the effect of the judgment of the august Supreme Court of Pakistan (PLD 1995 SC 281) in such‑like decided cases.
7. The august Supreme Court of Pakistan decided the appeal before it on 13‑2‑1994 (PLD 1995 SC 281) declining to interfere with the unanimous opinion of this Court (PLD 1990 Peshawar 51) but held that the Regulations (PATA N.‑W.F.P., Regulation I of 1975 and PATA N.‑W.F.P. Regulation II of 1975) are not pieces of valid law on different grounds as given in the judgment. The Government of the North‑West Frontier Province with the approval of the President published Notification dated 14‑11‑1994 wherein N.‑W.F.P. Regulation No.II of 1994 was provided for Nifaz‑e‑Nizam‑e‑Shariah through Courts in Provincially Administered Tribal Areas of Malakand Division and Kohistan District of the North‑West Frontier Province and made the Regulation into force at once and effective from 12th day of February, 1994. The PATA N.‑W.F.P_ Regulation I of 1975 and PATA N.‑W.F.P. Regulation II of 1975 were repealed under section 11 of the Regulation as reproduced hereinabove. Before adverting to the effect of repeal of the said Regulation and the promulgation of N.‑W.F.P., Regulation II of 1994 it will be relevant to mention that the Governor and the President were having some difficulty in the notification dated 14‑11‑1994. The ratio of the judgment of the august Supreme Court of Pakistan is that there should be uniformity of general laws in Pakistan and also with the application of Shariah. The N.‑W.F.P. Regulation No.II of 1994 was made applicable to PATA and the general law of Pakistan has been made applicable in criminal and as well in civil matters and cases. The judgment of the august Supreme Court of Pakistan was fully implemented as such.
8. Section 11 of N.‑W.F.P., Regulation II of 1994 is a legitimate and valid provision of law which has been made by competent authority of making laws for PATA N.‑W. F. P. Section 11 of N.‑W. F. P. Regulation No. 11 of 1994 is para materia with section 6 of the General Clauses Act and almost in the same language as used in the said section
6. The Balochistan High Court has held that whereas in the event of enactment found repugnant or inconsistent with the provisions of Constitution of struck down, consequences are analogous to repeal and such laws, remain operative till finalization of pending proceedings. The PATA N.‑W.F.P. Regulation I of 1975 and PATA Regulation II of 1975 were repealed by N.‑W. F. P. Regulation II of 1994 with effect from 12th day‑of February, 1994. The provisions of section 11 of N.‑W.F.P. Regulation II of 1994 does not provide transfer of appeals and revisions pending hearing before forums under PATA N.‑W.F.P. Regulations I and II of 1975 and rightly so. The appellate and revisional forums under PATA N.‑W.F.P. Regulations I and II of 1975 cannot be equated to the forums of appeals and revisions under the Civil Procedure Code, 1908 and the Code of Criminal Procedure, 1898. A fortiori a criminal appeal or revision is governed by the Code of Criminal Procedure, Pakistan Penal Code and other criminal laws. The civil, appellate and revisional Courts are governed by the Code of Civil Procedure, Civil Courts Ordinance, 1962, Court Fees Act, Suits Valuation Act and other connected and relevant ‑laws read with generally the Qanun‑e‑Shahadat. A party in appeal or revision before the forums under PATA N.‑W.F.P., Regulations I and II of 1975 cannot choose to withdraw the same and then file the appeal or revision in ordinary civil and criminal Courts on his chosing without sanction of the law and procedure and neither the ordinary Courts having jurisdiction of appeal and revision can exercise jurisdiction in such like cases brought before them.
9. The formulated Point No. l is answered to the effect that appeals or petitions pending under the repealed PATA N.‑W.F.P. Regulation I of 1975 and PATA N.‑W.F.P. Regulation II of 1975 will be heard and decided by the forums under the said Regulation II notwithstanding the repeal of the Regulations by N.‑W.F.P. Regulation No.II of 1994 and would not stand transferred to the Courts established under N.‑W.F.P. Regulation II of 1994. The answer to Point No.2 is that the Courts established under N.‑W.F.P. Regulation II of 1994 including the District and Sessions Judges would be competent to hear appeals against the judgments of Deputy Commissioners passed under PATH N.‑W.F.P. Regulation I of 1975 and PATA N.‑W.F.P. Regulation II of 1975. Consequently, the pending cases before the trial forums under the PATA N.‑W.F.P. Regulation I of 1975 and PATA N.‑W.F.P. Regulation II of 1975 are to be transferred to the appropriate Courts of ordinary jurisdiction, civil and criminal, for trial of the cases and judgment thereupon under the law and procedure applicable to the cases under N.‑W.F.P. Regulation II of 1994. The Reference of the learned Additional District Judge under section 113 of C.P.C. is also answered accordingly.
10. Before parting with this judgment, it will not be out of place to mention that valuable rights have accrued to the parties whose cases have been decided‑by the trial forums under PATA N.‑W.F.P. Regulation I of 1975 and PATA N.‑W.F.P. Regulation II of 1975. If any appeal and revision is to be decided by the hirearchy of the forums under the said Regulations then it will decide the matter according to the law and procedure applicable under the said Regulations and in case any of the forum under the said Regulations decide to remand the case to the trial forums for trial, then the case will be tried by the forums of ordinary criminal and civil jurisdiction. It is also relevant to mention that PATA N.‑W.F.P. Regulation I of 1975 and PATA N.‑W.F.P. Regulation II of 1975 were acted upon and judgments delivered under the same for about 20 years and this Court in its Constitutional jurisdiction passed orders from time to time in regulating the procedure of the forums under the said Regulations in accordance with law and procedure applicable in the cases under the PATA N.‑W.F.P. Regulation I of and PATA N.‑W.F.P. Regulation II of 1975. A.A./2083/P Reference answered.