1. ANWARUL HAQ, C. J.-This petition seeks leave to appeal against the judgment of the High Court of Baluchistan dated the 16th of May, 1979, by which a regular second appeal filed by the petitioner against the dismissal of his suit, was dismissed.
2. The dispute between the parties relates to certain properties left by the petitioner's father Ahmed Khan and his grandfather Fateh Khan. The petitioner's uncle Abdullah Jan had instituted a suit on the 28th of September, 1959, under the provisions of the Frontier Crimes Regulation, seeking a declaration to the effect that he was entitled to f share in these properties. A decree was passed on 8-12-1960 in favour of the plaintiff: Abdullah Jan against the heirs of Ahmad Khan, including the present petitioner, on the basis of a compromise arrived at through the efforts of the members of the Jirga constituted by the Additional Deputy Commissioner under section 8 of the Regulation. In those proceedings the petitioner, who was then a minor, was sued through his mother Mst.
3. Muhammad Zai, who was described as his natural guardian and she had executed a special power of attorney in favour of her son Gul Muhammad (who is respondent No. 8 before us).
4. A revision petition filed on behalf of the contesting defendants, including the petitioner was dismissed by the Commissioner on 7-1-1964. A writ petition moved by the defendants was dismissed by the High Court on the 19th of September, 1966, and an appeal instituted under the Letters Patent was also dismissed on the 29th of September, 1966.
5. Thereafter a suit was instituted on the 4th of October, 1966, by the present petitioner through his mother Mst. Muhammad Zai acting as his next friend, for a declaration that the orders made by the various authorities under the Frontier Crimes Regulation were void and ineffective against the right and interest ' of the plaintiff on the ground that no guardian aditemhad been appointed for the petitioner in accordance with the provisions of the Muslim law during the proceedings in the suit under the Frontier Crimes Regulation. This suit was dismissed by the learned Civil Judge at Quetta on the 27th of March, 1967, holding that it was barred under section 60 of the Regulation and that although the plaintiff was minor at the time of the institution of the previous suit, yet his rights had been fully safeguarded by his mother. The appeal filed by the petitioner was dismissed by the Additional District Judge, Quetta, on the 25th of February, 1977 ; and his second appeal has also now been dismissed by the High Court.
6. Leave to appeal is sought mainly on the ground that all the Courts below have ignored the fact that under the provisions of Muslim law the petitioner's mother was not his natural guardian and, therefore, she could not deal with his property unless she had been appointed as guardian in this behalf by a compe--tent Court, with the result that the petitioner's mother or special attorney appointed by her during the previous suit had no power or authority to enter into a compromise affecting the rights and interest of the petitioner in the property in dispute. It is next contended by the learned counsel for the petitioner that the trial of the previous suit under the Frontier Crimes Regulation was invalid, as there was nothing to show that the matter had been competently drawn into that system of adjudication by a conscious application of the mind by the Deputy Commissioner in terms of section 8 of the Frontier Crimes Regulation, by holding that although the dispute was of a civil nature it was likely to give rise to a breach of the peace or a blood-feud between the parties. The learned counsel submits that as there does not appear to be any such order on the record, it follows that the matter could not have been tried at all by a Jirga constituted under the provisions of the Frontier Crimes Regulation. It is next contended that once the matter had been referred to the Jirga, it was .The legal obligation of the members of the Jirga to give a finding on facts, and it had no power to decide the matter on the basis of a compromise between the parties, specially when the compromise was not signed by the attorney Gul Muhammad in his capacity as such on behalf of the petitioner. Finally, the learned counsel has again emphasized the fact that the Courts below have adopted a mistaken approach in thinking that the previous decree could be upheld simply on the ground that the mother and the brothers of the petitioner had no interest adverse to him as in law they had no authority to act on his behalf as none of them had been legally appointed as a guardian ad litem, or as guardian of the petitioner's property during his minority.
7. After hearing the learned counsel at some considerable length, we have formed the view that this is not at all a fit case for interference by this Court.
8. In the first instance, we find that the point that' the previous suit had not been competently drawn into the ambit of the Frontier Crimes Regulation under section 8 thereof was not raised in any Court so far, and it has not been raised even in the present petition for leave to appeal. For this reason we cannot permit this point to be raised at this late stage, specially when we recall that the litigation between the parties has been going on for more A than 20 years, and at no stage was it contended on behalf of the petitioner or the other legal heirs of his father Ahmad Khan that the Jirga or the Courts constituted under the Regulation were not competent to deal with the, matter.
9. We further find that the Frontier Crimes Regulation does not lay down any procedure for the trial of suits once the matter is referred to a Council-of-Elders all that section 8 (1) requires is that the Council shall come to a finding on the matters in-dispute after making such inquiries as may be necessary, and after hearing the parties. The learned counsel was no able to show that there is any statutory provision directing that the Council---of-Elders shall observe a procedure consistent with the principles of Muslim law, or, indeed, of any other law. In fact, it is the characteristic feature of all cases tried under the Frontier Crimes Regulation that the Council-of---Elders is not bound by any fixed procedure, and is at liberty to make such $ inquiries and in such manner as it thinks fit. This being the scope of powers enjoyed by the Council-of-Elders the submission that its proceedings stood vitiated on account of want of appointment of a guardian ad lilem 'during the proceedings loses all relevance. Nevertheless, in the proceeding before the Council-of-Elders the rights and interest of the petitioner in the disputed property were fully protected by appointing his mother as his next friend and also by the fact that his elder brothers were contesting the suit, an ld had an identical interest in the matter.
10. In support of his submission that the provisions of the Muslim law should have been applied in the matter of appointment of a legal guardian for the petitioner's property, or at least the appointment of a guardian ad litem during the proceedings before the Jirga, the learned counsel referred us to Precedent No. 27 dated the 31st of July, 1907, cited at page 276 of the Green Book, which is to the effect that the Council-of-Elders should not, as far as possible, render a decision inconsistent with Muslim law. It will be seen that this Precedent does not relate to procedural matters, but obviously relates to the substantive rights of the parties. In so far as procedure is concerned, the only obligation on the Council-of-Elders, in terms of section 8 (1) of the Regulation, is that they should decide the matter "after making such inquiry as may be necessary and after hearing the parties".
11. This the Council-of---Elders fully observed in this case, when the interest of the petitioner, who was then a minor, was fully protected by his mother and elder brothers.
12. These observations should also suffice to dispose of the contention that the Council-of-Eiders was not competent to decide the matter on the basis of a compromise, and was under an obligation to give a finding on facts'. As already stated, the Council-of-Elders had wide powers to decide the matter as it thought best after making such inquiry as it deemed necessary.
13. On a consideration of all these facts and circumstances, it becomes clear that the Courts below were right in refusing to set aside the previous decree on the basis of a technical plea, which, in any case, did not have any statutory foundation under the Frontier Crimes Regulation. The petition, therefore, fails and is hereby dismissed.