1. MUHAMMAD AFZAL ZULLAH, J.-The judgment, dated 13th August 1965, passed in Writ Petition No. 96 of 1963 (Quetta), by a learned Judge in Chamber of this Court, is under challenge in this Letters Patent Appeal. The legal question involved is whether there is any limitation in respect of causes for the possession of land, arising in the area of Tehsil Chaman, Quetta----Pishin District, dealt under the Frontier Crimes Regulation No. 3 of 1901.
2. Briefly stated, the facts are that Muhammad Rasul (respondent No. 3) filed a suit in December 1959 against the appellants and respondents Nos.4 to 8, for possession of certain land, water and trees situate in Ilaqa Chaman Toba. The Additional District Magistrate, Chaman (respondent No. 2) acting under section 8 of the F. C. R., by order, dated 18th May 1960, referred the matter to the Council-of-Elders comprising five persons. The following were the issues :- "(1) Whether the suit is within time?
(2) What are the lands in suit and where situate?
(3) In whose possession the land is?
(4) Whether plaintiff had any right in the suit property if so, Jirga to express the share of plaintiff?
(5) If answer to question No. 4 is in affirmative, how the plaintiff to get possession of his share?
(6) Any other recommendation that Jirga wants to make?"
2. By an award, dated 27th June 1960, four members of the Jirga held that the claim of the respondent-plaintiff was time-barred, while one of them held that there was no limitation for making such claim, therefore he gave the opinion that the claim be decreed. When the matter came before the respondent No. 2, he did not agree with the majority award and referred the matter again to a Jirga comprising of four persons which, by a unanimous award, dated 6th April 1961, agreed with the minority view, on limitation of the earlier Jirga and recommended that the claim of the plaintiff be decreed. This latter award was accepted by the respondent No. 2 by his order, dated 6th April 1961, and a direction was given for the implementation thereof in the form of decree.
3. The appellants filed a revision before the Commissioner, F. C. R. (respondent No. 1) which was dismissed by a short order, dated 23rd January 1953. A subsequent review application was also dismissed as incompetent. The appellants then challenged the orders of the respondents, dated 6th April 196 i, and 23rd January 1963 by a writ petition under Article 98 of the Constitu--petition, which was dismissed with costs by our learned brother Mushtaq Hussain, J., on 13th August 1965.
4. Hence this Letters Patent Appeal.
3. A brief mention of the claim of the parties, in so far as it directly relates to the question of limitation, will not be out of place. According to the plaint, the plaintiff was connected with Wali Kahol. Sardar, Sultan, Sarteep and Khuda Dad were four brothers and were from the line of Wali Kahol. Sultan died issueless, while the plaintiff claimed to be successor of Sarteep. The land in dispute was in possession of Haji Bismillah, one of the defendants, Muhammad Lal and Haji Fazool Muhammad. The latter, it appears, was the predecessor-in-interest of some of the present appellants. The land subsequently, it is further averred, came under possession of and remained with the successors of the aforesaid three persons; and because the plaintiff was a minor therefore he could not institute a suit. In para. 1 of the plaint, the fact about the minority of the plaintiff and his having become major at the time of filing the suit, is specifically mentioned. In the written statement, it was claimed that the defendants were in possession of the land for several generations; and because of the long period of possession, the suit was claimed to be baseless.
5. One of the defendants, i.e., aforesaid Haji Bismillah, in a separate written statement accepted the claim of the plaintiff as absolutely true. He, in his written statement, gave more details about the right and claim of the plaintiff, which are found missing in so far as the plaint is concerned. It is further stated therein that the plaintiff was "Muhajir" (in technical sense so far as it applies to the evacuees migrating from these areas to Afghanistan) and that it was a confirmed rule/custom in Chaman Sub-Division that whenever a Muhajir returned back, his share in property is restored to him ; and further that because of the fact that the plaintiff was earlier a minor and had then, at the time of filing the suit, become major, therefore he was fully entitled to recover his share of the property from the defendants. It is mentioned in the opening line of this written statement that the aforesaid defendant, i.e. Haji Bismillah was a white-bearded person and that he was a very old man and knew the circumstances well.
6. The majority of the first Jirga noted in its award that the claimant (plaintiff) had returned from Afghanistan only two years back; therefore, his claim was time-barred and that if he was a minor, a claim could be preferred on his behalf by his mother or grand-father; which was never done and because the claim was being preferred after about 60/70 years, therefore it was time-barred. It was admitted as a rule of custom that if somebody went to Afghanistan as a result of some estrangement or a crime and that if someone from his family came back after several years, it was as a matter of brotherly feelings that "the property is restored to the Muhajirs or their successors."
7. However, it was noted that this rule based on sympathy has led to adverse consequences; in that the person getting the property sells the same and returns back to Afghanistan. As a matter of expediency, it was further opined that if the plaintiff/claimant in this case was allowed to have the property and then if he goes back to Afghanistan, this will lead to a spate of similar claims; which it would not be possible for the administration to cope with. The minority view, which was expressed in a detailed dissenting note, further explained the aforesaid rule of custom of restoration of the property to a Muhajir without any restriction of limitation on his claim. It was held in this note that the assertion of the defendants with regard to the long period after which the claim was being preferred, may be correct ; but in the tribe and clan, to which the parties belonged, there was a confirmed custom that whenever and after whatever long period a Muhajir returned back to his original place of residence, his share in the property was restored to him and that the passage of such long time never destroys the right to property. It is of significance to mention that this member particularly noted that hundreds of instances were known to him and the other four members of the Jirga where this rule of custom was applied.
8. When the matter came before the second Jirga, they also wrote a detailed order; but with regard to limitation, they did not dilate the question except that they unanimously agreed with, as they put it, "the detailed award by the minority" which means that they adopted the aforesaid reasoning of the single member of the earlier Jirga. The same course was adopted by the respondent No. 2 in his order, dated 6th April 1961, whereby the award of the second Jirga was accepted. The commissioner, it is to be noticed, in revision has not discussed the question but appears to have agreed with the decision of the second Jirga and of the respondent No. 2, on the question of limitation.
4. The only point pressed before the learned Single Judge was of limitation. The contention raised and noticed in the judgment under appeal was that instructions contained in memos. Nos. 3129 to 3132, dated 6th October 1882, issued by the Agent to the Governor-General, printed as Serial No, 52 under the heading "Limitation" at page 134 of a publication "The Administration of Customary Law through the Frontier Crimes Regulation in Baluchistan" popularly known as the Green Book, laid down thirty years as the period of limitation for claims to ownership of land and water in Quetta and the assigned districts of Sibi and Pishin. The further contention that this instruction (S. No. 52) on the question of limitation, had the force of rule and law, was repelled by the learned Single Judge. Placing reliance on the observations in Mehrab Khan v. Taj Mohammad and others (PLD 1961 Quetta 1) and Pakistan v. Sheikh Abdul Hamid (PLD 1961 SC 105) it was held that the aforesaid instruction was only a direction and could not have the force of a rule framed under section 62 of the F. C. R., 1901, and thus it could not determine the rights of the parties.
9. 4-A. This Letters Patent Appeal was admitted to regular hearing in 1966. When it came up for regular hearing in August 1969, a D. B. Of this Court observed that a question had arisen before them whether the aforesaid instruction (S. No. 52) "was universally applied since the date it was issued". Therefore, the learned Additional Advocate-General was ordered to assist the Court. In the order, dated 3rd September 1969, it was observed that the learned Additional Advocate-General took the position that said instruction (S. No. 52) was a rule made under section 62 of the F. C. R., 1901 and, therefore, "the period of limitation in respect of civil litigation was prescribed for the first time superseding the custom in respect of the Districts of Quetta and assigned districts of Sibi and Pishin". 1t was further noted that "Mr. Agha Ahmad Shah, the official in charge of the cases arising out of the F. C. R. Is also present in Court and he as well as the learned Additional Advocate- General state that the Rule at S. No. 52 has been applied in all the civil cases under the F. C. R. Ever since it was issued". The hearing could not proceed because a further question arose "whether the territory in which the dispute arose, namely, Toba, Tehsil Chaman was a part of the three Districts of Quetta, Sibi and Pishin on 16-10-1882". Parties were given opportunity to produce evidence on this question and the case was adjourned.
10. When the appeal came up for hearing before us on 13th April 1970, both the contesting parties declined to lead any evidence and relied "on Baluchistan District Gazetteer, Quetta-Pishin District (Volume V) prepared in 1905 and published in 1907 A. D." Mr. Kamal Mustafa Bokhary, the learned Assistant Advocate-General, supported the appellants' assertion that Toba was included in the area known as Chaman in 1882 and, in this behalf, relied on a report of the Settlement Officer of the Revenue Department for preparation of settlement record of Toba Hills in the year 1967. Mr. Basharat Ullah, learned counsel for the respondent/plaintiff objected to the admissibility of the said report. We, however, overruled this objection and closed the evidence by the following order: --- "No other evidence is adduced. The evidence of the parties is, therefore, closed."
5. The question of fact whether or not the area in question, i.e. Toba/Toba Hills was or was not included in the administrative unit then known as Chaman in 1882, does not present any serious difficulty. It is apparent that if at the relevant time the area in dispute is found to have been included in Chaman or Pishin, this would satisfy the territorial application and requirement of the instruction at Serial No. 52. Both the parties have relied on the same material, i.e. The aforementioned Gazetteer.
11. Under Chapter IV heading "Miniature Gazetteer" sub-heading "Chaman Sub-Division" at page 298 of the Gazetteer, it has been observed as follows: --- "The Chaman or Khojak Sub-Division of Quetta-Pishin lies between 30-- 28' and 31-- 18' N., 66-- 16' and 67-- 19' E.; it is bounded on the north and west by Afghan Territory; on the east by the Toba Kakari Circle of the P shin Tahsil: on the south-- West by the lower sloes of the Khwaja Annrap; and op the south-east by the main ridge of the Toba Hills, by which it is separated from the Pishin Tehsil.
12. Its length from east to west is about 65 miles, and its breadth about 30 miles, its total area being about 1,236 square miles."
13. Under the sub-heading "Pishin Sub-division" at page 305, it is observed as follows:- "The Pishin Sub-Division and Tahsil lies between 30-- 31 x 31-- 12' N. And 66-- 21' and 67-- 46' E., and is bounded on the north by the Toba Hills and the Khwaja Amran, the latter also forming its western limit; on the east by the Hindubagh Tehsil of the Zhob District; on the south-east by the Sharing Tahsil of the Sibi District; and on the south by the Quetta Tabsil including the Shorarud Valley. Its length from east to west is about 100 miles, and its breadth about 40 miles."
14. Under the sub-caption "History" of Pishin Sub-division at page 307, it is mentioned as follows: ---- "Before its occupation in 1878 and its subsequent assignment to the British Government by the treaty of Gandamak in 1879, Pishin always formed part of the Province of Kandahar. . . After the British occupation and up to 1882, it was under an Assistant to the Governor-General's Agent, but in 1883 was combined with Quetta and Shorarud into the administrative charge of a Political Agent . . . ."
15. At page 6 under the sub-caption "Toba Hills" it is observed that these hills consist of a mass of mountains, which are roughly divided into two parts by a line drawn through Sabura. BOIL portions are named after their inhabitants, the smaler, on the east, being known as Toba Kakari and the larger, on the West, as Toba Achakzai. The map of the area on page 5, when studied with the help of the boundaries of Chaman and Pishin as mentioned at pages 298 and 305 of the Gazetteer (quotations from which have been given above), clearly shows that in 1905 the entire area of Toba Hills with the tribal divisions of Toba Kakari and Toba Achakzai was included in Chaman and Pishin.
16. The question arises as to when the area ire question was included in Chaman and/or Pishin. The history of the area is given in some detail and appears from page 34 (at sequence) of the Gazetteer. We are not concerned with the earlier history At page 43, under the caption "The Second Afghan War Cession of Pishin", it is mentioned as follows: -- "On the general advance being made on New Year's Day, 1879, Captain Wylie was appointed Political Officer in Pishin with headquarters at Gulistan Karez."
17. After mentioning that General Stewart left behind in Pishin some armed units to help the Agent to the Governor-General in preservation of the peace of the country, it is stated that the Achakzais and some discharged sepoys of the Amir's (of Kalat) army threatened the line of communication in front of Gulistan Karez, but the problem was promptly solved. On the same page, it is further observed as follows: --- "The first phase of the Afghan War closed with the signing of the treaty of Gandamak by Yaqub Khan on May 26, 1879, under the sixth article of which it was provided, that the districts of Sibi, Pishin and Kurram were to be ceded to the British Government."
18. This clinches the matter that in 1879, the entire area which was then known as Pishin was ceded to the British Government. However, the matter is further clarified by the following observa--petition :- "In September (1880), General Baker marched from Chaman into the Toba highlands, accompanied by Captain `H. Wylie as Political Officer, in order to punish the Achakzais for their behaviour. (Earlier it is mentioned that some skirmishes had taken place with the Achakzais). A number of sheep and goats were captured, and some small hamlets in the Arambi glen were destroyed, when the headmen submitted unconditionally and, in addition to their losses in cattle, were ordered to pay a fine of Rs. 600."
19. Under the caption "Final retention of Pishin", it is mentioned that finally the permanent retention of Pishin was settled in 1882. It appears from page 45 of the Gazetteer that the area described therein as "Chaman" (and the boundaries of which have already been mentioned above from the quotation at page 298) "formed part of Pishin Sub-Division up to 1888, but on the extension of the railway works beyond Kila Abdulla, temporary arrangements were made for its administration, first by locating the Naib-Tahsildar of Pishin in the Khojak Pass, and afterwards by placing the District Superintendent of Police in charge of it".
20. From all that has been noted and discussed above, it becomes absolutely clear that the area known as Toba hills was ceded to the British Government in 1879 and it became permanently settled under the British Government by 1882. This as noted earlier, read with the boundaries of Chaman and Pishin, as they existed in 1905 leads to the conclusion that in 1882 the area known as Toba did fall within Quetta-Pishin District. Mr. Basharatullah, learned counsel for the contesting respondent plaintiff contended that the word "Chaman" at page 45 of the Gazetteer should be read as only the area of the small town that existed in 1882. This contention cannot be accepted, because the boundaries of Chaman as already mentioned extended much beyond the town. He admitted that in 1905, the area in dispute was included in Chaman. When called upon to show from any source as to when, if not in 1879/1882, was this area included in Pishin (the Chaman Sub- Division) the learned counsel expressed his inability to do so.
21. Considering the entire material that has been placed before the Court, I hold that the area in question was included within the territorial limits of "Quetta and the assigned districts of Sibi and Pishin" in 1882 as they are mentioned in the instruction (S. No. 52).
6. The next and the most important question to be considered is whether there is any limitation for making the claim with regard to land, water and trees in the area in question, which is the subject- matter of the present case.
22. Mr. S. H. Jaffri, learned counsel for the appellants, stated that he does not rely on the general principles of limitation/laches or estoppel nor does he rely on any custom for the purpose of importing the concept of limitation in the present case. He also stated that the instruction of 1882 would not, by application of section 24 of the General Clauses Act, be available to be utilised, as he put it, `by way of inheritance' under the F. C. R. No. III of 1901. But he vehemently contended that the said instruction (S. No. 52) has the force of rule which existed before the coming into force of the F.
23. C. R. Of 1901, and that it will be deemed to have been adopted as a rule under the Rule-making provision of the F. C. R. i.e., section 62 which reads as follows :- "62. Power to make rules. The Local Government may make rules to carry out the purposes and objects of this Regulation."
24. Mr. Kamal Mustafa Bokhary, the learned A. A. G. Has supported the last-mentioned argument of Mr. Jaffri, and has gone further to state that the instruction (S. No. 52) was a rule made under the earlier F. C. Rs., and that by virtue of the Government of India Act, 1870, it became a statutory rule which, by the force of section 24 of the General Clauses Act, became a rule under section 62 of the F. C. R., of 1901.
25. Mr. Basharat Ullah, learned counsel for the contesting respondent, has contended that the instruction in question (S. No. 52) was neither drafted as a rule nor was it ever acted upon as a rule arid, in any case, it could not be considered to be a rule made under section 62 of the F. C. R., 1901.
26. We have also considered, of course with the help of all the learned counsels, the question whether the Limitation Act could. By its own force or by virtue of the provisions of Regulation No. II of 1913, have application to the matters dealt under the Frontier Crimes Regulation.
7. The argument of the learned A. A: G. In support of the contention that the instruction in question (S. No. 52) should be treated as a rule under the F. C. R. Of 1901, by application of the General Clauses Act, is as follows :- "It was applied to Baluchistan with certain modifications from 1-11-1901. . . The instructions and directions issued from time to time by the Agent to the Governor-General prior and up to the promulgation of Regular IV of 1887 became rule under section 52 thereof and on its repeal, a similar provision under section 62 of Regulation III of 1901 came into force. These instructions and directions of the A. A.-G. Issued under the various Frontier Regulations from 1872 to 1887 were based on the authority of Government of India Act, 1870. In 1887 when the A. A. G. Was appointed as ex-officio Chief Commissioner, the Scheduled Districts (Pishin was a Scheduled District) in Baluchistan came under his control and the laws to such districts continued to be applied by the A. G. G. In his capacity as Chief Commissioner on the authority vested in him by the Government of India Act, 1870 as substituted from time to time read with the Scheduled Districts Act, 1874, both of which continued to remain in force until the promulgation of the Government of India Act, 1935 whereafter these instructions and orders were adopted and continued to remain in force under section 95 thereof. Therefore, all the instructions and directions issued by the A. G.-G. In 1882 or earlier had the force of law and have continued to remain in force by virtue of the General Clauses Act."
27. It must be said that the argument is elaborate, but it is without any basis. The general and sweeping statement that the instruc--petition in question (S. No. 52) was issued "under the various Frontier Crimes Regulations" passed before 1882 cannot be accepted, unless it is shown that the instruction was specifically issued under anyone of them. The three Regulations before 1882 are of 1872, 1873 and 1876. The learned A. A.-G. Was unable to show as to whether and when all or any of these Regulations was applied to the area in question. He was specifically asked as to what provision of any of these Regulations he relied upon for the purpose of supporting the general statement, to which he could not make any reply. In fact, he frankly stated that these Regulations are not available.
28. The second general statement that the instruction in question (S. No. 52) was made on the authority of the Government of India Act, 1870 is also too general to be accepted. No provision has been relied upon to show that the Agent to the Governor-- General could, by issuing a memo. As is the case with regard to instruction (S. No. 52), make and promulgate the law of limitation in respect of certain claims. In the absence of any such specific source of power, to say that the instruction (S. No. 52) became a rule by virtue of section 52 of Regulation No. IV of 1887, is also begging the question. I am, therefore, not satisfied that the instruc--petition in question (S. No. 52) was made under any law or by virtue of any power conferred by law on the Agent to the Governor-- General to make or enact the law of limitation by means of a memo. It appears that the Agent to the Governor General issued, at least, four Memos. Nos. 3129 to 3132 on or about 6th of October 1882.
29. The original memos. Have not been placed before the Court. They are given in the consolidated form (instruction at S. No. 52) on page 134 of the Green Book. The memos. May have been issued as a general guidance for entertain--ing the claims to the ownership of land and water in specified areas and for the peculiar conditions prevailing at that time, i.e. To and about 1882, and they were never intended to be made or applied, in the form of a law or a rule.
30. There is another aspect of this matter. Admittedly, the memos. In question were issued before the coming into force of Regulation No. III of 1901. Even if it could be carried on by virtue of section 52 of Regulation No. IV of 1887 for which there is no material to support, the same could not be read as a rule under section 62 of the F. C. R. No. III of 1901, by virtue of section 24 of the General Clauses Act.
31. The latter Act was enforced in 1897. The opening part 4f section 24 reads as follows: --- "Where any Central Act or Regulation is, after the com--mencement of this Act, repealed and re- enacted with or without modification, then, unless it is otherwise expressly provided, . . . . . . . .
32. Admittedly, Regulation of 1887 was repealed before 1897. Therefore, this provision, in turns, would not apply to the present case. 1, therefore, hold that the instruction in question (S. No. 52) cannot be treated as a statutory rule which could be enforced under the F. C R. Of 1901, by virtue of the General Clauses Act; even if the Regulation (of 1901) is treated as the repeal and re-enactment of the law contained in Regulation of 1887.
8. The next question to be considered is whether, as contended by Mr. S. H. Jaffari, the instruction (S. No. 52) had, generally speaking, the force of rule and it could, by implication, be adopted and read as a rule under section 62 of the F. C. R. No. III of 1901. The contention is not entirely different than the one discussed and disposed of in the proceeding paragraph. However, in view of the elaborate arguments advanced in respect of this contention, it needs to be examined separately in some detail.
33. Reliance has been placed by all the learned counsel, in this behalf, on the ruling of their Lordships of the Supreme Court in the well-known case of Sheikh Abdul Hamid. In that case, certain instructions were treated by the High Court as statutory rule and had made the following observation: --- "These instructions have been issued by the Cabinet Secretariat which, according to the Rules of Business, can make rules governing the conditions of service of persons employed in connection with the affairs of the Federation. Since no express rules have been made, the instructions in question which govern the practice of these offices should be regarded as having statutory force."
34. Their Lordships of the Supreme Court remarked as follows: "The conclusion appears to us to have been reached altogether too easily. Office instructions are manifold in their scope and are designed and expressed to be used as guidance for the conduct of the affairs of each Department, and on such instructions it is perfectly plain that no legal right can be founded. On the other hand, a statutory rule has certain visible characteristics which must be looked for and cannot be dispensed with, when the question arises of claiming upon the basis of such rule, a right in law. A rule requires to be expressed with precision, and yet to possess generality so as to be capable of application to a large number of cases. If it leaves scope for discretion, that should be expressly pro--vided for. Ordinarily, it is necessary also that the making and promulgation of a rule should be attended by certain formalities e.g., publication in a Government Gazettee. It is not enough that there is no express rules relating to a point to confer upon any existing office instruction that there may be, the status and validity of a statutory rule."
35. Relying on the above-quoted remarks of the Supreme Court, the learned Single Judge in this case has held that the instruction (S. No. 52) cannot b0 said to have the status and validity of a statutory rule. In the same ruling their Lordships then considered the nature, status and validity of the instructions concerned in that case in some detail and laid down some principles which should be followed, before the instructions, which are not in the form of rules and/or are not published in a Government Gazette, are to be treated as having the force of rules. Their Lordships laid down the following principles/conditions:
(i) That the instructions should have been issued by an authority competent under the relevant law to make rules.
(ii) That they should have been expressed in precise terms and they could be applied with exactness.
(iii) That they should be capable of being applied with peculiarity to a great variety of cases/person.
(iv) That there should be nothing to indicate that such A instructions were at any time subsequently superseded, or that they were not strictly applied in any case, or that they were departed from in relation to any considerable proportion of the cases, giving rise to an inference that they were not intended by the authority concerned to be of binding effect.
36. If the above conditions are satisfied, the fact that the instruc--tions are not framed in the form of rules and are not published by notification, will be of no consequence.
9. Prima facie the first condition mentioned above appears to have been satisfied (partly) qua the instruction (S. No. 52). Mr. Basharat Ullah, learned counsel for the contest--ing respondent, has not contested the position that the Agent to the Governor-General in Baluchistan is the competent Rule--making authority under section 62 of F. C. R. Of 1901. But this concession is not enough to show that if the instructions would have been in the form of rule, it would have been considered as having been made with competence. This instruction practically enacts law of limitation for the purpose of making certain claims. It has not only the effect of creating law, but also of, at least, indirectly amending/modifying the Limitation Act in so far as the decision by the F. C. R. Authorities are concerned. The main purpose of the Regulation, as it appears from the Preamble, is "to provide for the suppression of crime in certain frontier districts". It can be said that the decision of civil matters through special Tribunals may have the effect of reducing the incidence of crime. Hence the provision for the trial of civil matters under the F. C. R. It is, however, doubtful whether enacting, in the form of instruction, a provision as to limitation would be "to carry out the purposes and objects" of the Regulation, and further whether it is not in excess of the power granted to the local Government. Some rules have been framed and are found on pages 36, 39 and 40 of the Government Publication of year 1926." "The Frontier Crimes Regulation, 1901 (III of 1901) with collection of Notifications and Orders issued thereunder or pertaining there--to". These rules do have the appearance as if they were made to carry out the purposes and object, of the Regulation.
37. But the same cannot be said with certainly about the instruction in question (S. No. 52). It appears that a need arose in 1928 for framing certain rules for the issue and safe custody of rifles and ammunition and for the imposition and recovery of fines; and section 62 was not found adequate provision for making such rules. Therefore, by Regulation No. V of 1928, a new section, i.e. Section 62-A was added to the Regulation which gave power to the local Government "to make rules for the issue and safe custody of rifles and ammunition for border village defence and for the imposition and recovery of fines for the breach of any such rules". The rules were then framed under section 62-A of the Regulation and are found at page 41 of the aforesaid publication. This circumstance, at least, indirectly shows that unless a rule is shown to have been made "to carry out the purposes and objects" of the Regulation, it cannot be said to have been made by virtue of power under section 62. In spite of what has been said above, I refrain from giving any final decision on this aspect of the matter because the learned counsel did not address arguments on this particular question.
10. Assuming for the sake of argument that the instruction in question (S. No. 52) has been framed by a competent authority, the next question arises whether the other conditions laid down by the Supreme Court have been satisfied or not.
(52) LIMITATION A. LIMITATION IN CASES OF LAND AND WATER.
38. Memos. Nos. 3129 to 3132, dated the 6th October 1882.
39. The Hon'ble the Agent to the Governor-General is pleased to issue the following directions regarding claims to the ownership of land and water in Quetta and the assigned districts of Sibi and Pishin.
40. I. Claims of this description are not to be entertained after the lapse of thirty years unless the claims have been revived or kept alive in the interim.
41. II. Claims less than thirty years old but dating previous to 1878 are to be received with caution and entertained or not according to circumstances. But if they are not entertained, the reasons for the decision should be clearly and fully stated in a written judgment by the officer giving the orders.
42. (Sd.) J. BIDULPH, Major, Agent to the Governor-General."
43. The reading of the instruction and its form does not show that it is composed of four memos/documents. Thus it is not possible to hold that the language used in the instruction is not a summary of those memos. And whether or not while preparing the summary, the language used in and intention underlying the memos. Has not been violated. The fact that this instruction purports to have been signed by Mr. J. Bidulph, Agent to the Governor-General, does not in any way advance the case of the appellants; because the above criticism cannot be obviated by this argument. Whether they were the signatures under the memos. Or under the instruction, is not known. Moreover, whether the signatures were appended in 1882 or sometimes thereafter and before the publication of the Green Book, is also not known.
44. Even the contents of the instruction are vague. Clause I prescribes time of thirty years beyond which the claim could not be entertained, unless it had been revived or kept alive in the interim. The effect of some preciseness in clause I is nullified and, in any case, diluted by clause Il which provides that claims less than thirty years but dating previous to 1878 may be received with caution; and depending upon the circumstances of each case may not be entertained; and if they are entertained reasons for such a decision should be stated. If the instruction in the form printed in the Green Book was issued in 1882, it would mean that the claims of the relevant description could be refused to be entertained, if they were five years old; meaning thereby that according to clause II the limitation was five years for claims arising at a time prior to 1882, but in exceptional cases the delay could be condoned. This could never be the intention in so far as the clause I is concerned. Moreover, five years' limitation with regard to claims relating to lands is so harsh and unreasonable that considering the conditions available in the area in question in those days, this short period of limitation (five years) would have directly clashed with old-aged custom of the people, and the Britishers would not have imposed it. It may be possible that sometime much later than 1882 (and thirty years after 1878 which comes to about 1908), it was, provided that if a claim of the relevant description beyond 1878, which would make a period of thirty years if one places himself in 1908, was made, it could be entertained, if additional reasons for condonation of delay were put in the form of writing. It is in that sense only that the two clauses can be reconciled. But this would all be supposition and conjecture and will derogate from the exactness and preciseness of the instruction in question. Therefore, I hold that condition No. (ii) laid down by the Supreme Court is not at all satisfied in this case.
11. Condition No. (iii) is also not satisfied. No doubt, on 3rd September 1969 the learned Additional Advocate-General and an officer from Commissioner's office made joint statement that instruction (S. No. 52) "has been applied in all the civil cases under the F. C. R. Ever since it was issued". But this general sweeping statement, it appears, is based on insufficient informa--petition. The two officers cannot be said to have any personal knowledge. The following circumstances show that the statement may not be correct :-
(i) In this very case, before the present intricate questions of law arose, the matter went before the Commissioner who, undoubtedly at present, is a very high functionary under the F. C. R., and is supposed to know law and practice much more than the officer who appeared before this Court.
45. Specific question was raised before him (the Commissioner) with regard to limitation. In spite of that, he dismissed the revision petition. Had this instruction been fairly known and had it been applied for such a long time, the Commissioner would not have acted in the manner he did.
(ii) In the Green Book which, as already noted, was published in 1938, i.e. More than half a century after the promulgation of the so-called instruction, three decided cases relating to limitation are mentioned. One is of 1915, the second is of 1917 and the third is of 1937. In none of these cases, the instruction in question was either directly or indirectly referred to or relied upon; it is not even mentioned. The first case relates to settlement of accounts, the second to the claim of land and the nature of the third is not clear from the report. All the three cases were decided by the Agent to the Governor-General. In the first case, it is generally observed that question of limitation was a fair ground for attack of defence (may be under custom). The second case though related to a claim for pre-emption, the Jirga had held that in cases of inheritance, no regard was paid to limitation.
46. On this question, it was observed that though question of inheritance did not arise in that case, the fact remained that the Jirgas "are often not bound by the technicalities of the Limitation Act, most of which are purely arbitrary. But in the case of suits of pre--emption it is not only the English and Muhammadan Law which fixes a short limit for such suits, but common sense dictates that they should be decided as soon as possible otherwise endless complications are likely to arise". No support for the latter view was sought to be derived from the so-called instruction (S. No. 52). It is not contested by any of the learned counsel that in pre-emption matters limitation as defence is recognised not only in custom by most of the tribes of this area but also by some authorities on Muhammadan Law which, in some measure, is the source of custom in these areas. In the third case, a categorical and important statement of law was made by the Agent to the Governor- General in the following terms: "there is no limitation for suits brought under the procedure of the Frontier Crimes Regulation, . . ."
47. From the above discussion, I have come to the conclusion that the instruction in question (S. No. 52) was not at all applied to a large number of cases. If at all it was applied to any particular case; that is not known. At least none has been shown to us during the arguments.
(iii) Apart from the present case, at least, in matters decided by this Court, i.e. Writ Petitions Nos. 67 and 82 of 1963, the instruction in question was not applied so as to import the concept of limitation in civil matters decided under the F. C. R.
(iv) In the judgment in Writ Petition No. 67 of 1963, in a similar connection it was noted by my Lord Muhammad Akram, J., in para. 9 that the learned counsel for the petitioner therein had relied on a number of decisions by the Commissioner, F. C. R., in which "he has held that there is no limitation for suits brought under the procedure of the F. C. R." None of the learned counsel appearing in this case cited any of those cases. But the observation made by his Lordship can be considered as a fair guide in order to know whether or not the so-called law of limitation, as contained in the instruction in question, was ever applied to individual cases.
(v) In the present case, there are three opinions expressed by various members of the two Jirgas and, at least, two orders have been passed by functionaries other than the Commissioner, acting under the F. C. R. In none of those opinions or orders ft is mentioned that the question in dispute could be resolved by the instruction (S. No. 52). On the contrary, even the four members of first Jirga had relied on only a measure of expediency in not allowing a claim which was very old and which was made by a Moharir from Afghanistan. Otherwise, all the members of the two Argas were unanimous on the point that there was no limitation for the claims made by such persons with regard to land. Had the instruction been ever applied in these areas out of the nine elders of the tribe at least, some may have taken note of it. But while giving fairly detailed and well-reasoned opinions, none of them has referred to the instruction (S. No. 52). This means that even by the elders of the Jirgas in various tribes, the instruction in question is not being treated as a rule or law.
(vi) Lastly, from all the sources from which the practice in respect of the disputed question can be gathered, it appears that civil cases affecting marriage, compensation, land and water came before the authorities under the F. C. R., were basis of tribal or local custom (See Gazetteer of District, 1905, published in 1907, Chapter III (ADMINISTRATIVE), main heading JUDICIAL" sub-heading "Civil Justice", page 220). Otherwise too except for the instruction in question, none of the learned counsel contended that for decision under F. C. R., there was any law or rule of limitation. One exception can be noted with regard to pre-emption wherein also it is admitted by all, the limitation if applied is only based on custom is not contained in any law or rule.
48. As a result of the above discussion, I have come to the conclusion that the third condition laid down by the Supreme Court is not satisfied.
12. The entire discussion on condition No. (iii) is also relevant so far as condition No. (iv) (noted above in para. 8) is concerned. In addition, it may be mentioned that from all the circumstances discussed above, particularly the nature and form of the instruction as having been derived from certain memos. Issued in 1882, it is clear that the instruction in question (S. No. 52) was never intended to be applied as a uniform rule or law and that the memos. (which are its source) were issued in loose and vague form to meet either a certain specific situation or the desire or need of a particular time the fact that it appears and almost vanishes in the nineteenth century and is not shown to have been specifically noticed in the later years, shows that it might have, at some stage, been superseded or annulled. One circumstantial support for this supposition can be found from the Government publications which are more authentic than the Green Book.
49. The Baluchistan Code, Government of India (Legislative Department), which was published in 1940 and which contains the local enactments in force in Brit0h Baluchistan "with chronological tables and an index", does not contain the instruction in question (S. No. 52). It is a book of about 300 pages and the table of contents shows that meticulous care has been taken to print all the relevant material from 1843 to 1940. Not only this, the book "The Frontier Crimes Regulation, 1901 with collection of Notifications and Order issued thereunder or pertaining there to published by Government of India in 1926" does not contain the instruction in question. In fact, no reference to it is found therein. A peculiar feature of this publication is that against each section of the Regulation wherever necessary, it is mentioned in the margin that the instructions, directions or rules relating thereto (relevant provision) can be found on such and such page of the book. The following is printed against section 62:- "For rules framed under this section see pages 35, 39 and 40."
50. On those pages, undoubtedly some rules are found, but the instruction in question is conspicuous by its absence. As already noted, no Government Publication (other than the Green Book) has been referred to show that the instruction in question was ever treated by the Executive or the Legislative Department of India or Pakistan as an existing rule.
51. About the authenticity of the material in the Green Book, it may be stated that it, no doubt, appears to have been printed by the Manager, Government of India Press, and is shown as "For official use only". In its form, the book appears to be a commentary on the Frontier Crimes Regulation, 1901 containing its context and the relevant orders, rules, case-law, etc. It is mentioned in the preface of the book that there was no compila--petition of many orders and rulings on the relevant subject till 1932, when Diwan Bahadur Jamiat R.I published his "Manual of Customary Law for Baluchistan". It is further mentioned that the said Manual was divided into three parts dealing with the test of the Frontier Crimes Regnlation; collection of important orders and rulings; and the customs of various tribes. The author goes on to state in the preface that Part III of Jamiat R.I's book as not covered in this (Green) book. However, as Part II f the Manual (of Jamiat R.I) suffered from a lack of proper arrangement; therefore, the author stated, "I have thought fit in this hand book to recast Part II in more convenient form, bringing it up-to-date and adding an index, and in Part I to include a short parallel commentary, which will call the constant attention of Magistrates to existing practice". In the end, the hope is expressed that "in this form it will prove useful to Magistrates in the daily discharge of their judicial duties". The preface is signed as "A. E. B. P.-June 1938 L2AGGB". I have seen a publication named "The Frontier Regulations-A paper read by R.I Bahadur Diwan Jamiat R.I, C. I. E., Settlement Extra Assistant Commissioner and Revenue Assistant to the Revenue Commissioner in Baluchistan" published in 1919. This has been relied upon by the learned counsel in some other connection. A fairly elaborate history of the Regulations is given in this publica--petition. At page 32 the subject of limitation is dealt, but only one instance is mentioned that by an order, dated the 14th January 1912 Sir John Ramsay held that there was no period laid down for applications for revision in cases decided under the Frontier Crimes Regulation, but ordinary applications for revision of an order which is more than six months' old, will not be taken up without special reasons.
52. No indication is given anywhere in the publication that any other limitation was prescribed by any instruction or rule issued under the F. C. R. Or by the Agent to Governor-General. I have not been shown the Manual of Customary Law by Jamiat R.I. However, it appears that the learned author of the Green Book (1938 Edition), while improving upon the work by Jamiat R.I and while attempting to make corrections, has himself committed some mistakes of printing the obsolete or cancelled instructions/orders. This supposition is further strengthened by the fact that the publication "Local Rules and Orders made under Enactments applying to British Baluchistan, Volume I", published in 1940 and corrected up to 30th June 1939, does not contain the instruction in question (S. No. 52). It is an exhaustive compendium with fairly elaborate table or contents and index. The material published relates to the period of about eighty years before 1940.
53. Another edition of Baluchistan Code published in 1966 has been cited before us. It contains material of more than one century. The instruction in question is conspicuous by its absence from this Code as well. And lastly, in recent years Government of Pakistan has published un-repealed Central Acts. The footnotes in that publication give indications of instructions, orders and rules made under various provisions of laws. The instruction in question has not been indicated in that publication either.
54. The result of the above discussion is that the instruction in question (S. No. 52) not only does not satisfy the conditions laid down by the Supreme Court, in the case of Abdul Hamid; but also appears to have either been cancelled or had become inoperative long time ago; and cannot now be given the status or validity of a rule.
55. Therefore, it is held that no rule has been framed under the F. C. R., to lay down the limitation for the claim which is the subject-matter of the present case.
56. PLD 1962 SC 428), Manzur Ahmad and others v. Ch: Muhammad Ishaq and others (PLD 1964 SC 17), The Province of West Pakistan and another v. Ch. Din Muhammad and others (PLD 1964 SC 21), Pakistan v. Abdul Ghani (PLD 1964 SC 68), Muhammad Khan v. The Border Allotment Committee and another (PLD 1965 SC 623), Dr. Muhammad Amin Durrani v. Government of West Pakistan and another (PLD 1966 SC 99), Govern--ment of West Pakistan and another v. Dr. A. A. Aziz (PLD 1966 SC 188), Muhammad Ashraf v. Board of Revenue, West Pakistan and another (PLD 1968 Lab. 1155) and 911 Muhammad and 13 others v. The Province of West Pakistan and another (PLD 1969 Lab.
57. 951). The law laid down in these cases is not different from what was held by the Supreme Court in the case of Abdul Hamid already referred to above. However, in none of these cases, the instruction in question (S. No. 52) or any other direction or instruction contained in the Green Book was in any way commented upon. Two direct decided cases on this subject-matter are Mehrab Khan v. Taj Muhammad and others and an unreported judgment, of this Court in Writ Petition No. 82 of 1964 (Quetta). In the latter case, the view held by the learned Single Judge in the present case has been followed by another learned Judge of this Court. In the former case, a Division Bench of this Court held (with regard to a circular order at Serial No. 7 of the Green Book) that it had no binding force as a rule. The instruction in question (S. No. 52) in this case is not on any better footing. Therefore, the ruling in the case of Mehrab Khan applies to this case also.
13. With regard to application of Limitation Act, 1876 Mr. S. H. Jaffri, learned counsel for the appellants, conceded that it did apply to ordinary Courts in British Baluchistan, but its provisions in terms were not applicable to the subject-matter dealt under the F. C. R. He, however, qualified this concession by asserting that the instruction (S. No. 52) is a rule under section 62 of the F. C. R., and this being a special provision qua limitation in a special law, would be read as a part of the Schedule to the Limitation Act; and by virtue of subsection (2) of section 29, some provisions of that Act including section 3 become directly applicable. In order to canvass this argument, learned counsel traced the history of the laws and Courts in this part of the country, in the following manner: - By Regulation No. VIII of 1896, criminal Courts were created on the pattern of those under the Criminal Procedure Code and they were competent to try offences under the Pakistan Penal Code.
58. Similarly, by Regulation No. IX of 1896, the ordinary civil Courts were created/empowered to deal with civil disputes. By virtue of section 95 of the Regulation, Limitation Act (1877) was made applicable to the matters dealt by ordinary civil Courts. British Baluchistan Courts Regulation No. I of 1918 provided for the post of Judicial Commissioner for British Baluchistan. The above two Regulations (Nos. VIII and IX) were modified by Regulation No. II of 1919 in certain respects. It was by this Regulation that jurisdiction was conferred on Lahore High Court with regard to certain matters pertaining to Baluchistan. Regulations Nos. VIII and IX of 1896 and No. II of 1919 were repealed by Regulation No. VI of 1939. It was more or less a consolidation law bringing the ordinary Courts in British Baluchistan in line with the other Courts in British India. Similarly, British Baluchistan Courts Regulation No. I of 1918 was repealed by Regulation No. VII of 1939, the effect where was similar to that created by Regulation No. VI of 1939. Regulation No. VII also dealt with the civil Courts.
59. Broadly speaking, regular Courts functioned in what is known as Bazar Fund and Municipal areas which were managed by police and are known as `A' areas. The remaining areas which were managed by Levies were called `B' areas. In this area, the F. C. R. (and authorities thereunder) had its way. The Deputy Commissioners were given some powers to withdraw some cases even from `A' areas for trial under the F. C. R. The statute concerning the Bazar Fund areas is Bazar Fund Regula-- petition, 1910.
60. Mr. Jaffri then referred to section 8 of the F. C. R. Which provides for the reference of civil matters to the Tribunals.
61. The heading of the section is "Civil References". Council-- of-Elders and the Deputy Commissioner are the terms used instead of Court. Police report is mentioned as a possible mode of initiation of proceedings. The word "plaint" is conspicuous by its absence. There is also a suo motu power with the relevant authorities to initiate the proceedings, which procedure is not visualised under the ordinary civil procedure. Section 8 is a detailed and elaborate provision for the entertainment and decision of claims in civil matters. The terminology used, concepts introduced, and forum and procedure provided therein, is entirely different from the terminology qua, and concepts of, civil Courts. It is conceded by the learned counsel that the authorities concerned are not Courts nor can the source of initia--petition of proceedings be called `plaint' or `application'. Learned counsel, however, brought to our notice some, provisions contained in section 9 of the F. C. R., wherein the word "decree" has been used and it is provided that the final orders passed under section 8 shall have the effect of a decree and will be executed as such. This, in its very nature, is a deeming clause which further strengthens the view that but for this deeming clause, the final order under section 8 would not have been treated as a decree. Therefore, it can be safely assumed that the set-up provided under the F. C. R., for dealing with the claims on civil side is entirely different from what we are familiar under ordinary law, i.e., Courts, suits, plaints, decrees etc. There is sufficient case-law on the point that the forums and procedures created under the F. C. R., are a system apart from the ordinary one. It is not necessary to discuss them in detail.
62. The foregoing discussion would show that the history of the laws and Courts is not relevant for decision of the legal question involved in this case: except in the context that the concepts, authorities and procedures under the F. C. R., are different fromthose under ordinary laws.
63. This conclusion, in any view, negatives the argument raised by the learned counsel that the Limitation Act though not applicable in terms, be deemed to have applied by virtue of section 29 thereof. The reason is very simple. The Preamble of Limitation Act clearly states that it is to provide and amend lawn relating to the "limitation of suits, appeals and certain applications to Courts". In this context, section: 29(2) is to tie read in the context of `Courts'. It is an admitted proposition that the; authorities under the F. C. R. Cannot and have not been treated as Courts. This supposition is further strengthened by they provisions contained in section 3 of Limitation Act: without the application of which the entire argument of the 1Warned counsel becomes meaningless. They do not and cannot apply to the authorities under the F. C. R.
64. There is another aspect of the matter. The main argument of the learned counsel that the instruction ion question (S. No. 52) should be deemed to be a rule prescribing a period of limitation for certain claims has not been accepted. Therefore, it cannot be read as a part of the Schedule of the Limitation Act. And if that is so, the purview of subsection (2) of section 29 shall not apply; because its application depends upon the provision of a special period of limitation, contained in a special law, the special law, here, is the F. C. R. And rules thereunder has no such provision.
65. There is yet another aspect of the matter. Section 28 of the Limitation Act provides for the extinguishment of right to property "at the determination of the period hereby limited to any person for instituting a suit for possession of any property". The question arises whether section would, in a case like the present one, apply by its own force. The answer must be in the negative. Firstly because, sub-clause (b) of section 29(2) clearly provides that in relation to special and local laws even if they provide period of limitation, "the remaining provisions of this Act shall not apply".
66. Section 28 would fall in "the remaining provisions". Secondly because, section 28 visualises a limitation laid down by law for instituting a suit for possession and also presupposes the existence of Courts in which a suit for possession could be filed within such period. If these conditions are not existent, i.e. a period of limitation is not prescribed by law and there is no Court for instituting a suit, in the strict sense that they are used in that provision, the right shall not extinguish. It has already been held that the instruction in question (S. No. 52) does not provide a period of limitation as a law, in respect of the claim in the present case, and the proceedings and authorities under the F. C.
67. R. Are not suits and Courts. And thirdly, generally speaking if there is no limitation with regard to seeking of the remedy in respect of possession, there cannot be any extinguish--ment of right to it.
68. Therefore, it has to be held that neither section 28 nor section 29 of the Limitation Act are of any help to the appellants.
14. It may be mentioned that Mr. Kamal Mustafa Bokhary, the learned A. A.-G., attempted to argue that the Limitation Act would be deemed to have applied to the matters under the F. C. R., by virtue of section 3 of Regulation 11 of 1913. The other two learned counsel did not agree with this proposition. However, this question has also been examined. Under subsection (1) of section 3 of this Regulation read with the Schedule, no doubt the Limitation Act has been made applicable to British Baluchistan. But unless the foregoing argument of the learned counsel for the appellants relating to the application of sections 28 and 29 of the Limitation Act is accepted qua the matters and authorities under the F. C. R., the mere fact that the Limitation Act applies in British Baluchistan is of no consequence so far as the present case is concerned. There is no dispute and doubt about the proposition that the Limitation Act applies to the ordinary Court and matters under other laws.
69. But as discussed above, it does not apply to the authorities and subject --matters dealt under the F. C. R. Moreover, subsection (2) of section 3 of the Regulation makes it further clear that the application of various laws to the subject-matters dealt by authori--ties in British Baluchistan is not a matter of course but is achieved by a technical procedure. The conditions laid down thereunder are not shown to have been satisfied in this case. It may be mentioned that no authority has been cited by any of the learned counsel where it may have been held that the Limitation Act applies to matters under the F. C. R. On the contrary, it was beta in the unreported case already cited (W. P.
70. No. 67 of 1963) that it does not apply to the authorities and subject-matters dealt under the F. C. R.
71. The result of the above discussion is that this contention of the learned A. A.-G, based on the provisions of Regulation II of 1915 also fails.
15. Before concluding this judgment, it will not be out of place to mention that the cause of action shown in the so-called plaint filed by the contesting respondent/plaintiff on 2nd December 1959 is based on the document, dated 18th December 1929. This would mean that it was filed within thirty years. Moreover, it is specifically mentioned in the pleadings of the respondent/plaintiff that he was a minor and that on attaining the age of majority, he preferred the claim. There is no finding by the Jirga (second) which could negative the above suppositions. These matters do help the contesting respondent. Be that as it may, on the questions of law involved in this case, as discussed above, this appeal cannot succeed. Therefore, I dismiss the same. In view of the intricate questions of law involved, there shall be no order as to costs.
72. MUHAMMAD FAZLE GHANI KHAN, J.-I agree.
73. S. Q.