P L D 1962 (W (PLP)

S. A. MAHMUD, J.

Mst. Tootia, mother of Mst. Popalzai, petitioner, was married to Bahadur Khan, respondent No.

1. They bad two sons, Muhammad Bashir and Muhammad Zahir, and a daughter, Mst. Popalzai. Mst. Popalzai is now over 20 years of age. In 1953, when Mst. Popalzai was l1 years of age, Babadur Khan divorced Mst. Tootia. She filed a suit for the recovery of Rs. 5,000 as damages against Bahadur Khan on the allegation that he had unjustifiably maligned her and also for her maintenance. The case was referred to a dirge who gave their award on the 8th October 1953, which was made a rule of the Court by the Extra Assistant Commissioner and Additional District Magistrate, Quetta, on the 9th October 1953. By this order, Rs. 25 were to be paid to the plaintiff per month as her maintenance allowance for her life-time or until such time as she re-married. Muhammad Bashir, who was then five years of age, was to stay with the plaintiff for four years and thereafter was to be handed over to Bahadur Khan. She was to be paid Rs. 10 per month as his maintenance. Muhammad Zabir, then 13 years of age, and Mst. Popalzai, were to be banded over to Bahadur Khan. She was also ordered to stay with her brother Baran or Malik Khan Muhammad Bazai, resident of Killi Qasim. Babadur Khan's revision against this order was rejected by the Revenue Commissioner on the 15th July 1954. As Bahadur Khan did not regularly pay the monthly allowance as decreed against him, his pay was attached by the Extra Assistant Commissioner and Additional District Magistrate. This was also made the subject of revision. Mst. Popalzai refused to go to her father and the Deputy Com missioner again referred the matter to a Jirga. Before the Jirga also she refused to go to her father and the Jirga rerpmmended that as she could not be physically handed over under the Riwaj, she might remain with her mother, who should be bound down not to give the hand of Mst. Popalzai In marriage without the consent of her father and that out of her vulvar money Mst. Tootia would be entitled to retain one third amount as maintenance charges of Mst. Papalzai and the balance was to be paid to Bahadur Khan. This recom mendation of the Jirga was accepted by the Deputy Commissioner and an order was made accordingly Bahadur Khan again went up in revision against this order. Both the revisions were dismissed by the Additional Commissioner, Quetta, as Commis sioner, F. C. R., by his order dated the 22nd October 1956, though he amended the order of the Deputy Commissioner, as follows :- " Under section 8, F. C. R., I declare that Mst. Popalzai may not live with her father and may live with her mother; out of the vulvar money realised at the time of marriage of Mst. Popalzai, one-third will be payable to Mst. Tootia on account of maintenance charges of Mst. Popalzai and the remaining two-thirds will be payable to Bahadur Khan. I further declare that Mst. Tootia shall not have the right to give away Mst. Popalzai in marriage or dispose of her without the consent of Bahadur Khan, and that for this purpose she will furnish a bond in the sum of Rs. 1,000 with two sureties in the like amount. If such a bond and sureties are not forth-coming within a reasonable period, such period to be fixed by the Deputy Commissioner-the Deputy Com missioner may, in lieu thereof, retain as cash security a like amount out of the amount payable by Bahadur Khan to Mst. Tootia." This is how the matter rested on the 22nd of October 1956. It is conceded before us that Mst. Tootia did not furnish the requisite security and that the amounts deposited by Bahadur Khan were retained by the Deputy Commissioner as security.

2. On the 4th February 1960, Mst. Popalzai filed a suit before the Senior Civil Judge, Quetta, against Bahadur Khan, respondent No. 1, for a declaration that she had attained puberty, was free to marry any person of her choice, and for a permanent injunction restraining Bahadur Khan from interfering with her rights. He filed his written statement on the 22nd February 1960, and issues were framed. Respondent No. 1, then put in an application dated the 11th May 1960 before the Deputy Commissioner praying for the withdrawal of the suit and for its decision by Jirga. Mst. Popalzai also put in an application on the 25th May 1960, objecting to the withdrawal of the case and requesting that the case should be allowed to proceed on the regular judicial side. The Deputy Qonmr4issioner, Quetta-Pishin, accepting the application of respondent No. 1, made the following order on the 2nd July 1960 :- " The above case is pending before the Sub-Judge, Quetta, and the defendant has applied for its transfer to an F. C. R. Court for decision by a Jirga. In view of the peculiar circumstances of the case and the fact that the previous case between Mst. Tootia and Bahadur Khan in which decree for the hand of Mst. Popalzai was awarded, was decided by riwaj, this case should also be tried under the procedure of F. C. R. "I, therefore, under section 14, F. C. R. withdraw this case from the Court of the Sub-Judge, Quetta, and refer it to the E. A. C./A. 1). M., Quetta, for disposal." Mst. Popalzai filed a revision against this order, which was dismissed by Mr. Sher Zaman Khan, Additional Commissioner as Commissioner, F. C. R., Quetta Division, by his order dated the 15th September 1960. Aggrieved by the reference of her civil suit to a Jirga for decision under the F. C. R., Mst. Popalzai has moved this Court in writ jurisdiction.

3. This writ petition invokes certiorari jurisdiction of this Court on the following two grounds:- (1) That the Deputy Commissioner had no power to withdraw the case pending in a Civil Court and to refer it to a Jirga under section 14, F. C. R. (2) That the Deputy Commissioner should have heard the petitioner before referring the case to a Jirga.

4. On behalf of the respondents it is conceded that the Deputy Commissioner has no power under section 14, F. C. R., to refer a civil case to a Jirga, but reliance is placed on section 8, F. C. R., which authorises the Deputy Commissioner to refer a civil dispute to a Jirga for decision. It is contended further that this power includes the power to withdraw a case from a Civil Court and to refer it to a Jirga. It is also contended that as the act of the Deputy Commissioner is purely executive or administrative, dependent upon his own satisfaction of the expediency on a subjective level, there is no judicial or quasi-judicial determination of the rights of parties and that no principle of natural justice is involved, and that as such it is not necessary for the Deputy Commissioner to hear the parties before making a reference.

5. In certiorari the initial question is whether the official whose action is in question was acting under a law. If he was not, the act was that of a mere public agent and action at law and not certiorari is the remedy. If, however, a public functionary has acted in exercise of a, statutory authority, then the question to be determined is whether he was- the sole judge A of facts and of the necessity, expediency, advisability or reason ableness of the action to be taken. If the reply be in the affirmative, he was not acting judicially and his discretion is not liable to judicial review. But if he was under an obligation to find the facts in a judicial or specially prescribed manner, a material departure from the procedure which had adversely affected the rights of a party would render his action liable to judicial review, even if, on the facts to tie so found the action to be taken depended on his discretion. These cases are disting uishable from those where, whatever be the nature of the Tribunal, the order made Is illegal in the sense that the Tribunal was not competent to make it or when on the facts found, whether sub jectively or objectively, the order in question could not have been made or an order should have been, but has not been made or where the Tribunal suffers from lack of jurisdiction. In all such cases, the order is liable to review by a superior Court in writ proceedings provided it has affected any right of the petitioner for a writ. This is the principle laid down by Muhammadi Munir, C. J., in The Tariq Transport Co., Lahore v. The Sargodha Bhera Bus Service, Sargodha (P L 0 1958 S C (Pak.) 437). Applying this principle to this case, it cannot be held that a determination of the question of reference of a case to a Jirga is either judicial or quasi-judicial. The nature of the action taken is more or less administrative, depending upon expediency and vindication of public interest. The Deputy Commissioner does not thereby decide any right of a party. There is no lis before him and the parties are not entitled to lead evidence before him. All that he decides is the forum for decision of a civil dispute under section 8, F. C. R. In this view of the matter, we find no force in the contention that it is necessary for the Deputy Commissioner to hear a party or parties, before ordering reference of a civil dispute to a Jirga under section 8, F. C. R., though no harm canresult if he hears them before making such an order.

6. There is good authority, on the basis of Instruction No. 7 contained in the Green Book, that cases relating to `A' areas, which include Quetta, of which the parties are residents, should not be referred to a Jirga. Indeed, in The State v. Dosso (P L D 1958 S C (Pak.) 533), A. R. Cornelius, J. (now Chief Justice of Pakistan) observed that in one of the cases it did appear that the conditions, which might compendiously be described as `frontier conditions', were wholly absent, and that, as the crime was not committed in a settled area, but in old settled towns, and, in all probability, involved no evidence other than those of persons living in the Special Areas, the discretion in referring the case to Jirga had been abused, which might call for interference by the Commissioner in revision. In the present case also the parties reside in Quetta and Bahadur, Khan is an employee of the department of Food Supply. In l these circumstances, the question of propriety of reference of the' civil suit to a Council-of-Elders is open to question, but we cannot interfere with the order on this ground.

7. This takes us to the consideration of the vital question, namely, the validity of the order of the Dbputy Commissioner. This order purports to have been made under section 14, F. C. R.t No power is conferred on the Deputy Commissioner under this section to either withdraw a civil case or to refer it to a Jirga. Section 14, F. C. R., is referable to a criminal case pending in a Sessions Court or Courts subordinate to it, Therefore, the section of the Frontier Crimes Regulation under which the action has been taken by the Deputy Commissioner does not give him the power. This has been conceded by learned counsel for the respondents.

8. The Deputy Commissioner has power under section 8, F. C. R., to refer a `civil dispute' to a Council-of-Elders. In the application of section 8, F. C. R., to Baluchistan, the words "and if a suit is not pending in respect of the dispute" have been omitted. Under the F. C. R., as applicable to the area which was formerly known as N.-W. F. P., there was no power to refer a civil dispute to a Jirga, if a civil suit was pending in respect of the dispute. The word of limitation having been removed, the power exists in the Deputy Commissioner to refer a `civil dispute' to a Jirga, even though a civil suit has been filed, but the power is exercisable in a `civil dispute' and not in a 'civil suit.' There is, there fore, force in the contention that there is no power in the Deputy Commissioner to refer a civil suit to a Jirga. It is true that a pending civil suit may constitute a civil dispute and such a dispute may be referred to a Council-of-Elders, but no power is conferred on him to refer a civil suit to a Jirga, which means withdrawal of a civil suit from a Civil Court. He has no such power, as he does not possess any supervisory jurisdiction over Civil Courts, as he does in his capacity as District Magistrate over subordinate Criminal Courts. The power of withdrawal of a civil suit or its reference to a Jirga not having been expressly conferred on the Deputy Commissioner under the F. C. R.,) cannot be impliedly inferred, even though such power may have been exercised by the Deputy Commissioner in the past over a long period of time, as appears from instructions in the Green Book. By deletion of the words "and if the suit is not pending in respect of the dispute" it cannot be inferred that a power to withdraw a civil suit and to refer it to a Jirga has been conferred on the Deputy Commissioner. If it was intended to give him the power to refer a pending civil suit to a Jirga, an express prevision should have been made in the F. C. R.

9. It is urged by the learned counsel for the respondents that it could not have been intended that a civil suit and Jirga proceedings can continue side by side, for it would lead to dual proceedings which may result in conflicting decisions. The jurisdiction of a Civil Court not having been expressly ousted, the ouster of its jurisdiction as a Court of general jurisdiction, cannot be easily inferred. The jurisdiction can only be taken away either expressly or by necessary intendment, but no such ouster of jurisdiction appears to have been intended. There is no difficulty in holding that a civil suit in a Civil Court and proceedings before a Jirga can go on simultaneously. Even if conflicting decisions are given, no real conflict results, because a decision by the Jirga on its acceptance by the competent authority, P subject to orders in revision, operates as a decree of a Civil Court of ultimate resort under section 9 (b), F. C. R., with the result that the decision under the F. C. R. prevails over the decision of the Civil Court, and thus in law no conflict of decisions results. 10- After having examined the provisions of the Frontier Crimes Regulation, we find that the order of the Deputy Commissioner withdrawing a case under section 14, F. C. R., is incompetent and that he had no power or authority either under section 8 or under any other provision of the Frontier Crimes Regulation to withdraw the civil suit from the Court of the Sub-Judge, Quetta. In exercise of powers of certiorari, we, therefore, quash the order of the Deputy Commissioner, dated the 2nd July 1960, withdrawing the civil suit, as Incompetent.

11. Learned counsel for respondent No. 2 also argued before us that Civil Courts are debarred from trying the suit filed by Mst. Popalzai, on the ground of res judicata as the question of the share of the father in the `vulvar' on the marriage of Mst. Popalzai, and the further question that she will be married with his consent, have been finally and effectively decided by Jirga awards, which have been accepted by the Deputy Commissioner, and operate as decisions of Civil Court of ultimate jurisdiction. The suit which has been filed by Mst. Popalzai is one for a declaration that she having attained majority is, under the Muslim Personal Law, entitled to marry a man of her own choice. Whether the decisions of the Jirga under the F. C. R., bar the trial of the suit in a Civil Court on the principle of res judicata or under section 10, F. C. R., should have been raised before the Civil Court, and if raised, can more appropriately be decided by it. We are not disposed to go into this question in this case in writ jurisdiction.

12. For the reasons given above we accept this writ petition with costs. This order may be communicated to the parties. K. B. A./A. H. Petition accepted.