P L D 2025 Peshawar 221 (PLP)

WIQAR AHMAD, J.

Facts of the instant case are that, respondent submitted an application for settlement of land dispute between the parties situated in Tehsil Pindiali under section 8 of Frontier Crime Regulation ("FCR") before Assistant Political Agent ("APA")/ Additional District Magistrate, Lower Mohmand. He stated that, he had purchased the land in dispute from Hayati Kor Burhan Khel some 15 years ago but petitioners (herein) claimed the property in dispute to be their ownership which was against the Riwaj of Mohmand Tribe.

2. On summon petitioners submitted their statement and refuted the claim of respondent. The APA framed necessary issues and with consent of both the parties constituted a jirga (council of elders) with directions to submit its findings/recommendation within 90 days. The jirga members submitted their unanimous recommendations in accordance with the Riwaj. The recommendations were accepted and accordingly, respondent Khan Sher was held owner of the disputed land, vide order dated 15.3.2016 of APA. Feeling aggrieved with the order dated 15.3.2016, petitioners filed appeal before Commissioner FCR, Peshawar Division, Peshawar but same was dismissed vide order dated 06.10.2016. Feeling aggrieved with order dated 06.10.2016, petitioners preferred civil revision before FATA Tribunal, Peshawar which was also dismissed vide order dated 21.9.2017. Against order dated 21.9.2017, petitioners filed civil review petition before FATA Tribunal, Peshawar but same was dismissed vide order dated 11.4.2018. Petitioners filed second review petition, but in view of 25th Constitutional Amendment, it was transferred to this Court. Same was converted into Writ Petition No. 2380-P/2019 but it was also dismissed on ground of non-availability of right of second review petition, vide order dated 09.02.2021. Due to merger of FATA into the province of Khyber Pakhtunkhwa in view of 25th Constitutional Amendment, regular courts were established. Respondent filed execution petition on 07.10.2020. Petitioners filed objection petition under section 47 Code of Civil Procedure, 1908 ("C.P.C.") before learned Senior Civil Judge Mohmand, on the ground that the execution petition was time barred and secondly the judgment and decree was not executable, because the entire pleadings and court proceedings were silent about description and other details of the property in dispute i.e. its boundaries and measurement etc. The objection petition was kept pending and notice was issued to the Council of elders to submit report regarding the exact location and total area of land recommended by them before the then APA with further directions that after filing report by the council of elders, both the parties would have the right to file objections, (vide order dated 07.09.2021 passed by learned Senior Civil Judge, Mohmand). The case was adjourned to 18.9.2021 and accordingly notices were issued to Council of elders to submit its report. Petitioners assailed order dated 07.9.2021 before learned District Judge, Mohmand but same was dismissed vide order dated 07.10.2021. Learned Executing Court, after recording statements of council of elders (jirga members) and hearing arguments, dismissed the objection petition filed under section 47, C.P.C. vide order dated 13.2.2024. Petitioners filed appeal against the order dated 13.2.2024 before learned Additional District Judge-II, Mohmand but same was also dismissed vide judgment dated 21.3.2024. Still having felt aggrieved from the order dated 21.3.2024, petitioners have filed instant civil revision.

3. Arguments heard and record perused.

4. Perusal of record reveals that learned civil court had very appropriately appointed jirga members as local commission on the basis of whose jirga award, the earlier order of APA had been passed. The Jirga members had submitted their unanimous report regarding identification of the decreed property. The jirga members also included one member nominated by petitioners in the original proceedings before erstwhile political authorities and all the members had been unanimous in the original jirga award as well as subsequent proceedings of local commission regarding the award. They had also been called to the court for examination and cross-examination but their testimony had remained unshaken in respect of identification of the property in dispute. It was in such circumstances that learned civil court had dismissed the objection petition filed by petitioners.

5. Learned counsel for petitioners vehemently contended that he had not been afforded an opportunity of hearing to record his evidence in the objection petition filed by him and that due to non identification of the property in earlier order of the APA same should not have been put to execution. He also contended that the execution petition was also barred by limitation, particularly, under Article 181 of the Schedule 2 of Limitation Act 1908.

6. While rebutting said contention, learned counsel for respondent contended that the issue of limitation had earlier been decided by learned executing Court vide its order dated 7.9.2021 by holding that the limitation Act had not been earlier extended to erstwhile FATA and therefore, same would be deemed to have become applicable on merger of FATA with the province of Khyber Pakhtunkhwa by way of 25th Constitutional Amendment, from the date of its promulgation. He stated that said order has never been set aside in appeal and had attained finality. He also defended the impugned orders for reasons given therein.

7. Having two main objections one was relating to non-identification of the property in dispute in the original order of the APA and second was relating to limitation. So for as objection of the petitioners relating to non-identification of the property or lack of its proper description (in the earlier application filed by decree holder/ respondent before the political authorities) is concerned it was apparent that the earlier proceedings had been conducted under FCR where requirements of form of suit and form of decree etc. had not been invogue. Simple application used to be submitted to the political authorities without assistance and proper legal professionals like lawyers and the disputes used to be referred to jirga under section 8 of FCR. The jirga would give its verdict and then final award used to be passed there in terms of section 8 (4) (a) by the original forum. Section 9 (b) was providing that orders of the APA would be deemed to be decree of civil Court.

8. It is important to be noted that law of limitation, particularly, the limitation Act 1908 had never been extended to tribal territory under repealed Article 247 of the Constitution. Same cannot be deemed applicable in said area. Learned executing Court in its earlier order had therefore, rightly held that the law of limitation would be deemed applicable on merger of FATA with province of Khyber Pakhtunkhwa. Similar ratio may be found in judgment of Hon'ble Supreme Court of Pakistan rendered in cases titled National Commission on Status of Women through Chairperson and others v. Government of Pakistan through Secretary Law and Justice and others (PLD 2019 SC 218) where it was held that after merger all the laws of land that are applicable in rest of the districts of Khyber Pakhtunkhwa like Mardan and Peshawar shall be deemed applicable in the erstwhile area of FATA from the date of merger i.e. 25th Constitutional Amendment to the Constitution of Islamic Republic of Pakistan, 1973 to which the President has given assent on 31.5.2018. There was nothing in the 25th Constitutional Amendment Act, or elsewhere that the limitation Act or other law not earlier extended, had ever been given retrospective effect in respect of the merged area. Such retrospective operation cannot be adjudged or construed under any canon of interpretation of statutes, because giving such retrospective operation, the law of limitation would result in abolishing remedies with retrospective effect and same would therefore, carry the potential of prejudicing rights of large number of people. In the given circumstances, it can legitimately be construed that the law of limitation shall have its application from the date of promulgation of 25th Constitutional amendment for reason that if a presumption is to be taken same shall be taken against bring changes at the prevailing assessment of law in the ex-tribal territory. Courts in England have taken presumption against changes in common law in absence of express word or necessary intendment to the contrary. While explaining the phenomena it has been opined in the Book Maxwell on the interpretation of Statutes, Twelfth Edition by P.st.J. Langan;

2. Presumption against Changes in the Common Law. Few principles of statutory interpretation are applied as frequently as the presumption against alternations in the common law. It is presumed that the legislature does not intend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute in question. It is thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness, and to give any such effect to natural or literal meaning would be to place on them a construction other than that which Parliament must be supposed to have intended. If the arguments on a question of interpretation are " fairly evenly balanced, that interpretation should be chosen which involves the least alteration of the existing law." In the case of a consolidating Act there is a particularly strong presumption that it does alter the law contained in the statues which it replaces. The reason is that " it is the invariable practice of parliament to require from those who have prepared a consolidation bill an assurance that it will make no substantial change in the law and to have that checked by a committee." In the case in hand also if a presumption against changing the system of law in erstwhile FATA with retrospective effect, is not taken it would either result in abolishing or abridging the rights available under old legal dispensation. Law of limitation normally extinguished remedy even in respect of an existing right, on passing of prescribed period of limitation. Such lack of remedy for enforcement of right may render the very right unenforceable and therefore the abolition of right or its abridging would be quite conspicuous. Such an interpretation cannot be favoured which results in extinguishing existing rights unless same is expressly intended by legislature in some statute.

9. Law of limitation Act, would also therefore have its effect from the date of promulgation of the 25th of Constitutional Amendment i.e. 31.5.2018. Execution petition in the case in hand had been filed on 07.10.2020 which was well within three (03) years of the date of merger, as provided in schedule 2 of Article 181 of Limitation Act,1908 and therefore, the execution petition had been filed within time.

10. Plea of learned counsel for petitioners regarding non-identification cannot be entertained for the reasons that earlier there had not been any prescribed format of plaint or pleadings for initiation of any action under section 8 of FCR. Similarly there had not been any legal requirement for drawing of decree sheet etc. to political authorities. In such circumstances requirement of regular legal assistance prescribed in the law of Civil Procedure Code, 1908, law of pleadings and other similar law cannot be applied to the earlier proceedings conducted before erstwhile FATA authorities. In such circumstances learned executing court has rightly embarked upon determination of the identification of exact location of the decreed property.

11. So for as contention of learned counsel for petitioners that opportunity of recording evidence had not been given to petitioners, is concerned it is apparent that law has not prescribed any procedure for decisions of objection petition filed during course of execution. It is well-settled that an objection petition may be decided without affording the objector further opportunity of recording evidence, if material on record is sufficient for decision of the question raised in the objection petition. The court called the jirga members and appointed them as local commission and recorded their statements whereupon the objector had been allowed liberal opportunity of cross-examination. The objector during proceedings before executing Court has never made a request to allow him for further evidence. Learned counsel for petitioners was specifically asked whether any request for producing recording further evidence had been made by the objectors before learned executing court below, he could not substantiate with the help of any document that such request had ever been made by petitioners/objectors. In such circumstances order of learned executing Court cannot be reversed on the ground that petitioner had not been afforded opportunity of recording evidence in the objection petition. No other illegality or material irregularity could be pointed out by learned counsel for petitioners in the impugned orders. The case was supposed to have been decided in accordance with terms of the special legal dispensation that had been applicable in FATA at the time when the original order had been passed by the competent forum. In such special circumstances of instant case the impugned orders were not only found justifiable but also found to have dealt with the issue in appropriate, legal and just manner.

12. In light of what has been discussed above, instant civil revision was found lacking substance and same is accordingly dismissed. MH/85/P Revision dismisse