1984 PLP 102 (SCMR)

MIAN BURHANUDDIN KHAN, J.‑This petition is directed against the judgment and order of the Peshawar High Court dated 7‑6‑1983 passed in Writ Petition No. 143 of 1981.

2. According to the petitioner a saint known as Diwana Baba died some 500 years ago as bachelor and the people of the locality who had become his devotees during his lifetime built a tomb in Tehsil Daggar; District Swat. The ancestors of the petitioners became Minjawars. The Land owners made personal gifts to the petitioners' ancestors of lands known as sairee lands that in the year 1953 miscellaneous applications were made to the authorities regarding the bona fides of the petitioners as the lawful descendants of the saint Diwana Baba, and, subsequently, respondents No, 1 and 2 claimed to be the descendants of Diwana Baba and filed a suit before the Tehsildar Daggar who dismissed the suit per order dated 21‑6‑1973 as barred by time under sub Para. (2) of para. 4 of Regulation II of 1975. On appeal, the learned Extra Assistant Commissioner, vide order dated 26‑7‑1973, dismissed the appeal. A further appeal was filed by the respondents before the Additional Deputy Commissioner, Swat, who wrote a lengthy order dated 16‑4‑1974 in Push to holding that respondents Nos. I and 2 were the heirs of Diwana Baba and that the petitioners were in continuous possession of the shrine of Diwana Baba, and directed that a local Jirga be constituted under the provisions of Regulation 11 of 1975. Against this order, an appeal was preferred before the Additional Commissioner, Malakand who rejected the appeal and framed ‑two issues to be determined by the Jirga to be con vened as ordered by the Deputy Commissioner vide order dated 14‑9‑1974. A revision was filed which was rejected by the Deputy Secretary, Home and Tribal Affairs, who, upholding the order of the Additional Commissioner, added another issue vide order dated 4‑12‑1974. A Jirga was appointed on 17‑5‑1976 but on an objection raised by the respondents, another Jirga was convened. Six members of this Jirga with Tehsildar Totalai as Chairman were appointed by the Additional Deputy Commissioner on 29‑12‑1976. The petitioners objected to the nomination of Ajah Khan, Syed Mustafa Bacha and Faqir Khan because they were not locals but the Additional Deputy Commissioner overruled the objection.

3. Learned counsel for the petitioners, appearing before us contended that the suit was barred under section 11 and Order IX, rule 9, C. P. C. that the decision announced by the Jirga is contrary to the procedure and there is no unanimity of opinion amongst the Jirga members and they all differed on certain issues inter se and did not come to a final conclusion unanimously and finally that the appointment of Jirga was subject to the condition that its members had to produce domicile certificates as condition precedent, which was not fulfilled and, therefore, the entire proceedings are without jurisdiction.

4. We have gone through the verdict of Jirga members and find that there is substance in the points raised by the learned counsel the Jirga members have not given any final decisions regarding vital issues their opinion is not unanimous nor according to Regulation II of 1975. The confirming authority i. e. the Additional Deputy Commissioner has not applied his mind properly to the verdict of the Jirga members and thus committed a material irregularity in the proceedings. We grant leave to consider the points raised by the learned counsel. Security rupees two thousand and five hundred. Appeal to be heard on the present record with liberty to the parties to file additional documents, if desired. Stay‑ order dated 22‑8‑1983 is confirmed. M. Z. M. Leave grauted