2000 PLP 793 (CLC)

MUHAMMAD AZAM KHAN J.‑‑‑ Karim Shah and 21 others u have brought the present petition under Article 199 of the Constitution of Islamic Republic of Pakistan. 1973 for declaration that the judgment and decree of respondent No.22 namely, Home Secretary. Government of N.‑ . W.F.P., Peshawar, dated 7‑12‑1993 was illegal, without jurisdiction and without lawful authority and. Therefore, have prayed for restoration of the judgment and decree of respondent No.24 namely, A.D.C./D.C. under P.A.T.A. Regulation, dated 6‑10‑1991 Annexure 'E'. During the pendency of the writ petition respondent No.3 was reported dead and his legal representatives brought on record.

2. The facts of the case briefly stated are that the petitioners had instituted a suit against respondents 1 to 21 before the A.D.C./D.C., Swat under the P.A.T.A. Regulation for a declaration that the petitioners were entitled to 1/7th share in the royalty‑of the forest situated in Village Ramait, Tehsil Behrain, District Swat and that the defendants had no right to refrain them from claiming their respective share. The aforesaid suit was referred to the Jirga in terms of the issues framed on the pleadings of the parties and the Jirga was constituted under the Chairmanship of Tehsildar Revenue, Swat having two members namely Haji Sherin Jalal and Haji Hazrat Yousaf of Mingora. The Jirga recorded the evidence of both the parties and unanimously resolved that by virtue of a compromise dated 17‑1‑1983 the defendants had admitted the claim of the plaintiffs to the extent of 1 /7th share of Daftar, in respect of royalty in the disputed forest since 1983, the Additional Deputy Commissioner, therefore, decreed the suit in favour of the plaintiffs on 20‑1‑1990. The respondents then filed an appeal before the Additional Commissioner, Malakand which failed on 6‑10‑1991. Thereafter, a revision petition was preferred by them before the Nome Secretary, respondent No.24 who vide his order dated 7‑12‑1993 accepted the revision petition, set aside the orders of Courts below and remanded the case back to the Assistant Commissioner,' Swat ‑for a fresh decision observing that the" Jirga members have initially passed the award, did not belong to the area of dispute namely. Kohistan Area, Tehsil Behrain, therefore, according to the learned Additional Secretary, Home the proper persons for Jirga were to be selected from the elders of the local area where the dispute arose.

3. We have heard the learned counsel for the parties and have gone through the record of the case.

4. Admittedly there was a protracted litigation between both the contesting parties before the proper forum. In reply of the suit written statement was submitted, issues were framed and evidence of the parties was recorded. The order‑sheet, dated 9‑9‑1987 of the Court of D.C., P.A.T.A. would suggest that the Chairman had once suggested before the Court that the previous members of the Jirga were not attending the proceedings, therefore, instead of Haji Cherri, new members namely, Haji Sherin Jalal and Haji Hazrat Yousaf be nominated. This proposal was accepted by the representatives of both the parties and they did not object to the constitution of the aforesaid Jirga. Even in this Court this petition was admitted on 20‑9‑1994 that since both the parties had agreed to the appointment of second Jirga, therefore, the petition was admitted for consideration. We are, therefore, of the view that upon the unanimous recommendation of the Jirga, the trial Court had passed the order dated 20‑1‑1990, which was upheld by the Additional Commissioner, on 6‑10‑1991 reflects no infirmity. The Jirgal was definitely constituted with the consent of both the parties in the light of the compromise between them. This Court, therefore, can grant extraordinary relief through Constitutional petition when the matter is settled A through consent/compromise. We, therefore, accept this petition, set aside the orders of the , Home Secretary, dated 7‑12‑1993 and restore the order, dated 6-10‑1991 as prayed for. , Q.M.H./M.A:K/499/P Petition allowed.