P L D 2003 Supreme Court 491 (PLP)

QAZI MUHAMMAD FAROOQ, J.

This review petition under Article 188 of the Constitution of the Islamic Republic of`-Pakistan, 1973 read with Order 26 (XXVI) of the Supreme Court Rules, 1980, has been tiled by the Government of N.-W.F.P. through the Chief Secretary and others. It seeks review of the judgment dated 23-2-1997 passed in Civil Appeal No.15 of 1995, reported as Fida Muhammad and 3 others v. All Residents of Rumboor Valley (1997 SCMR 846), to the extent of the observations made in para. 20 that the Distribution of Property (Chitral) Regulation, 1974 (Regulation III of 1974) stood repealed under section 11 of the Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Regulation, 1974.

2. Briefly, the facts which form the background, are that on 1-9-1988 a suit was filed by the residents of Rumboor Valley, Chitral through Saifullah Jan and 4 others in a representative capacity in the Court of the learned Senior Civil Judge, Chitral concerning entitlement to 60% Royalty of timber extracted from the forests of Rumboor Valley. The suit was resisted by the defendants on the ground, inter alia, that the Court had no jurisdiction to entertain the suit. After a hot contest the suit was decreed by the learned trial Court and the appeal before the learned District Judge, Chitral was dismissed. The revision petition filed by the defendants was dismissed by a learned Judge in Chambers of the Peshawar High Court and the appeal, by leave of the Court, also met the same fate. During the course of hearing of the appeal the learned counsel for the appellants raised several contentions. One of the contentions pertained to the jurisdiction of the learned trial Court to entertain the suit which was repelled with the following observations made in para. 20 of the judgment: "The next contention of Mr. M. Sardar Khan that the respondents could not have invoked the jurisdiction of the Civil Court in view of the bar under the provisions of the Distribution of Property (Chitral) Regulation (No. III of 1974) and that the respondents should have resorted to the hierarchy provided for therein is rendered without substance after the repeal of the aforesaid Regulation III of 1974 under section 11 of the Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Regulation (No. III of 1974). In consequence of this hierarchy provided for under the repealed Regulation (ibid) is no more available to the respondents." Feeling aggrieved, the Government of N.-W.F.P. has filed this petition for review of the judgment to the extent of the observations highlighted above.

4. The learned Advocate-General, N.-W.F.P., in support of the petition, submitted that the review petition was restricted to the observations made in para. 20 of the judgment of this Court in regard to the repeal of the Distribution of Property (Chitral) Regulation, 1974 as well as Regulation III of 1974 i.e. Settlement of Disputes of Immovable Property (Chitral) Regulation, 1974. It was further submitted that the mistake was apparent on the face of record as under section 11 of the Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Regulation, 1994, 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 Provisions) Regulation, 1975 (N.-W.F.P. Regulation II of 1975) were repealed and not the Distribution of Property (Chitral) Regulation, 1974 (Regulation II of 1974.) and the Settlement of Disputes of Immovable Property (Chitral) Regulation, 1974 (Regulation No. III of, 1974). It was also submitted that review of the observations in question has been sought for the reason that the same are likely to create jurisdiction-related complications in respect of the cases covered by Regulations 11 and III of 1974.

5. The learned counsel for the contesting defendants in the suit, respondents Nos.1 to 4 herein, frankly conceded that the two Regulations pointed out by the learned Advocate-General, N.-W.F.P. were not repealed by the Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Regulation, 1994. He, however, contended that in the event of acceptance of the review petition the plaintiffs should be non-suited as the objection raise by the defendants that in view of the bar contained in Regulation III of 1974 the learned trial Court had no jurisdiction to entertain the suit was repelled through the observations in question.

6. The learned counsel for the plaintiffs also conceded that the review petition was well-founded but opposed the submission made by the learned counsel for the defendants with regard to dismissal of the suit on the grounds that the defendants had not filed any review petition and the Civil Court had the jurisdiction to entertain the suit as some of the impleaded persons were minors.

7. There is substance in the submission made by the learned Advocate- General, N.-W.F.P. because the repealing section 11 of the Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Regulation, 1994 relates to N.-W.F.P. Regulations Nos.1 and II of 1975 and has no nexus with Regulations II and III of 1974. The relevant provision is worded thus:-- "

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 Provisions) 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 twelfth day of February, 1994."

8. The error is indeed apparent on the face of the record and needs I rectification not only to the extent of Distribution of Property (Chitral) Regulation, 1974 (Regulation II of 1974) but also in respect of the Settlement of Disputes of Immovable Property (Chitral) Regulation, 1974 (Regulation III of 1974) which has been indirectly hit by the observations in question on account of description of the Distribution of Property (Chitral) Regulation, 1974 (Regulation II of 1974) as Regulation III of 1974. However, the submission made by the learned counsel for the defendants for dismissal of the stilt cannot be considered for want of a review petition on their behalf.

9. We would, therefore, allow this petition and review the judgment dated 23-2-1997.passed in Civil Appeal No. 15 of 1995 to the extent that Distribution of Property (Chitral) Regulation, 1974 (Regulation II of 1974) and Settlement of Disputes of Immovable Property (Chitral) Regulation, 1974 (Regulation III of 1974) were not repealed by section 11 of the Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Regulation, 1994. S.A.K./G-169/S Review allowed.