P L D 1984 Peshawar 41 (PLP)

FAIZ MUHAMMAD KHAN, J.‑Haji Jauder Khan and five others, peti tioners herein, instituted against Qazi Falah‑ud‑Din and one other, respondents No. 1 and 2 herein, a suit for a declaration to the effect that the land men tioned in the heading of the plaint was the ownership of the plaintiffs and was given to the defendants in lieu of the services rendered by them as Imam of the village mosque and in case the defendants were not prepared to render those services in future, then they were not entitled to keep the land with them or have any concern with it. The suit was contested by the defendants on factual and legal pleas. It was tried and adjudicated upon under the Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation, 1975, hereinafter called the said Regulation. Since the finding of the `Jirga' on the issues referred to it was unanimous, the Assistant Commis sioner Taimargarah, exercising powers of the Deputy Commissioner under the delegated authority, decided the suit in accordance with such finding and granted to the plaintiffs the decree prayed for. This Order was made under subsection (3) of section 10 of the said Regulation. 2, The defendants were aggrieved by tile decision made and the decree passed by the Assistant Commissioner, Taimargarah and they, therefore, filed before the Commissioner an appeal against the said decree. The appeal was heard by the Additional Commissioner, Malakand Division, who, vide his Order dated 30-11‑1980. dismissed the same.

3. The aggrieved defendants then went in revision against the Order of the Additional Commissioner Malakand Division. The revision petition was heard by the Additional Secretary, Home and Tribal Affairs Department, on behalf of the Provincial Government. The learned Additional Secretary, vide his detailed order, dated 3‑11-1981 while accepting the revision petition remanded the case to the learned Additional Commissioner for fresh hearing by a new `Jirga' and decision afresh.

4. The Order made by the learned Additional Secretary, was not accept able to the plaintiffs and they, therefore, filed this Constitutional Petition calling in question the said Order.

5. Mr. Muhammad Aman Khan, Advocate appeared on behalf of the petitioners and Mr. Jan Muhammad Khan, Advocate appeared on behalf of the respondents Nos. 1 and

2. The respondents Nos. 3 to 5, who were public functionaries, were placed ex parte. The arguments of the learned counsel for the parties were heard and the record of the case perused with their assistance.

6. The first argument of the learned counsel for the petitioners was that since the finding of the `Jirga' on a question of fact was accepted by the Commissioner, and since then, was no material irregularity or defect in the proceedings conducted by the 'Jirga', such finding could not be varied or set aside by Government while exercising revisional jurisdiction under section 12 of the said Regulation. While so submitting the learned counsel for the petitioners called to his aid the provisions contained in the proviso to sub section (1) of section,, 12 of the said Regulation. It would be convenient, for the sake of reference, to reproduce hereunder the said section 12 ; "

12. Revision.‑(1) Government may, within ninety days of any order passed by the Commissioner on appeal. either of its own motion or on the application of any party to a dispute, 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 this 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 ; Provided that nothing herein contained shall be deemed to authorise Government to vary or set aside a finding of a 'Jirga' on a question of fact where such finding has been accepted by the Commissioner unless it is of opinion that there has been a material irregularity or defect in the proceedings or that the proceedings have been so conducted as to occasion a miscarriage of justice. (2) Government may, after examining any record called for under sub section (1) and giving the parties an opportunity of being heard, pass such order as it may think fit." The provisions of law reproduced above clearly show that the revisional jurisdiction is open to Government for the "purpose of satisfying. itself as to the correctness, legality or propriety of any decision, decree or order given, passed or made under this (said) Regulation, or as to the regularity of any proceedings thereunder." The proviso to subsection (1), relied upon by the learned counsel for the petitioners, also provides that Government may vary or set aside a finding of a Jirga' on a question of fact, though the same may have been accepted by the Commissioner, if "it is of opinion that there has been a material irregularity or defect in the proceedings or that the proceedings have been so conducted as to occasion a miscarriage of justice." The reading of subsection (1) of section 12 as a whole would, therefore, lead to the conclusion that Government thereunder is possessed of every wide powers to vary or set aside the concurrent finding of fact reached by the Commissioner and the Jirga'. once it is satisfied that one or more of the conditions mentioned in the said subsection are fulfilled. Subsection (2) of section 12 of the said Regulation then authorises Government "to pass such order as it may think fit."

7. We now come to the impugned Order dated 3‑11‑1981 passed by the Additional Secretary to Government of N.‑W.F.P. whose decision on the matter was clothed with finality of section 14 of the said Regulation. A perusal of this Order would‑ show that after elaborate discussion the learned Additional Secretary remanded the case for decision afresh because, in his view, the evidence brought on record was not properly appreciated .by the 'Jirga', the Chairman of the Jirga' bad endorsed in one line the opinion of other members without giving his own views the matter, the learned Assistant Commissioner, while exercising the powers of Deputy Commissioner under the said Regulation, had only put his signature on the decision which had been recorded in 'Urdu' by someone else, and .the case, though relating to huge property (1500 Jaribs), was dealt with in a superficial manner. The learned Additional Secretary also noticed on the record an application made by the respondents herein through which they had objected to the continuance of Mian Akbar Said as Jirga' member. This application was made earlier than the date on which the award was signed by the members, including Mian Akbar Said. The learned Additional Secretary in this context, formed the view that the game played in this case was not straight because the parties to litigation had lost faith in one out of the two 'Jirga' members, excluding the Chairman, earlier than they made and signed the award.

8. While going through the record ourselves we found that the grounds mentioned by the learned Additional Secretary in his impugned order for arriving at the conclusions aforesaid bad the support of the material on record. Not only that, we also noticed that the award made by the twos 'Jirga' members and mechanically signed by the concerned Tehsildar, the Chairman of 'Jirga', was based on "personal knowledge", the "evidence led by parties" and "the inquiries made in the Ilaqa" by 'Jirga' members. The record does not show that at the time of making of 'inquiries in the Ilaqa' by the Jirga' members the parties were present, who were also afforded an opportunity of cross‑examining the witnesses deposing against them. We can, therefore, conveniently deduce that those were the secret inquiries which were made by 'Jirga' members in absence of parties. When the attention of the learned counsel for the petitioners was drawn to this fact, his reply was that the said Regulation contained no bar on making secret inquiry by the 'Jirga members for arriving at just decision. This argument of the learned counsel for the petitioners cannot be accepted as such procedure was not only in clew violation of the provisions contained in subsection (2) of section 8 of the said Regulation, which provides for giving to the parties an opportunity o cross‑examining the witnesses deposing against them, but was also contrary t the well‑established principles of the administration of justice that the decision cannot be based by the Court or the Tribunal exercising judicial powers on the evidence collected behind the back of the parties. This Court would, therefore, not endorse the view which had or would have, the effect of introducing in that part of the country a law of the blackest nature. It is thus evident from the record that out of the three factors, i.e. "personal knowledge", "evidence led by parties" and "secret inquiries", forming basis for the finding of 'Jirga', two could not be legally relied upon by the 'Jirga' in arriving at the conclusion they reached. The procedure adopted by the 'Jirga' members and the award made by them resting on such procedure, being contrary to the express provisions of law and the established principles for the dispensation of justice, were illegal and without lawful authority. The superstructures built on such award could not, therefore, stand and the learned Additional Secretary was perfectly justified in demolishing the same. The first argument of the learned counsel ha no force.

9. The other argument by the learned counsel for the petitioners was that the learned Additional Secretary, in law, had no power to direct the appointment of new 'Jirga', as, according to him, such power could only be exercised by the Deputy Commissioner concerned under section 6 of the said Regulation. This argument was equally without substance. We have already noticed that the 'Jirga' members, who made the award, by introducing 'personal knowledge' and 'secret inquiries' into the process of the formulation of their opinion bad misconducted the proceedings and had. thereby legally incapacitated themselves to continue as members of the 'Jirga‑. In such circumstances, the Additional Secretary was perfectly justified in directing the appointment of a new 'Jirga'. We are also of the view that what the Deputy Commissioner could do under section 6 of the said Regulation, could also b done by Government while exercising powers under section 12(2) of the said Regulation.

10. In any case, we would refuse to interfere, in the exercise of Cons titutional jurisdiction, with the impugned order which, in the circumstances of the case, was just and proper and was made to secure the ends of justice. Further, there having been made no decision on merits, the impugned order called for no interference.

11. This writ petition being without merit is, therefore, dismissed. We would, however, make no order as to costs. The status quo order dated 2‑11‑1982 is hereby vacated. M. Y. H. Petition dismissed.