' MAZHAR ALAM KHAN MIANKHEL J.--- A suit for declaration regarding suit house was filed by the present plaintiff/petitioners under Regulation II of 1975 in PATA Courts wherein the defendant/respondents contested the suit by filing their written statement and after conclusion of the trial under procedure provided in the Regulation ibid, suit of the plaintiff/petitioners was dismissed on 234-1984. The dismissal of their suit was even upheld by the Court of appeal and the revisional forum provided under the Regulation vide judgments dated 17-3-1986 and 25-9-1986 respectively. But the constitutional petition filed by the present petitioners bearing Writ Petition No, 547 of 1986 was allowed by this, Court vide its judgment dated 29-1-1989 and the case was sent back to the trial Court by declaring the decisions arrived at by the fora working under the Regulation as without lawful authority and jurisdiction because the question of res judicata was decided by the Courts for which they had no jurisdiction and only question of limitation could have been dealt with by them.
2. After remand of the case, the trial Court under the Regulation referred the case to Jirga and report of the Jirga was accordingly submitted before the trial Court but before the announcement of any verdict by the trial Court, the Regulations I and II of 1975 both were declared repugnant to Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 by this Court vide judgment dated 24-2-1990, in the case of Muhammad Irshad and others v. Assistant Commissioner Swat and others (PLD 1990 Peshawar 51). Thereafter the Government promulgated Regulation No, II of 1994 PATA (Nifaz-e-Nizam-e-Shariah) 1994 for which ordinary Civil Courts were established in the area.
Later on said Regulation was also repealed by Regulation I of 1999.
'Consequent upon such repeal, cases which were not finally concluded before the PATA Courts under Regulation II of 1975 were transferred to Courts working under Regulation of 1994. After such transfer, the transferee Court was supposed to decide the cases in accordance with prevailing law of the land. The trial Court in the instant case, without adopting the legal procedure for trial or getting the consent of the parties for their reliance on the already recorded evidence dismissed the suit of plaintiff/petitioners vide its judgment and decree dated 29-4-1999 and their appeal against the same also met the same fate when Additional District Judge/Izafi Zilla Qazi, Swat dismissed their appeal vide his judgment and decree dated 18-6-2003. Hence the present revision petition against the concurrent findings of the two Courts below.
3. Learned counsel for the petitioners in support of petition submitted that the findings arrived at by the fora below are not only against the law and without jurisdiction but the same are also based on misreading and non-reading of the material evidence on the record; that after promulgation of Regulation II of 1994 (Nifaz-Nizam-e-Shariah) Regulation, the trial Court should have proceeded under the regular law of the land provided for disposal of cases and should also have recorded the evidence of the parties as the proceedings before the fora working under the PATA Regulation II of 1975 were declared to be against the fundamental rights provided in the Constitution of Islamic Republic of Pakistan, 1973.
4. As against that, the learned counsel for the defendant/ respondents supported the judgments of the two Courts below by submitting that after transfer of the case, both the parties had given their consent and placed reliance on the evidence already recorded. 'So, the decision of the trial Court on the strength of such consent was entirely within the provisions of Regulation II of 1994 and also placed reliance on the case of Ghulam Rahim and 11 others v. Nauroz and 39 others (2001 CLC 414).
5. Learned counsels for the parties were heard and record of the case was perused.
6. Perusal of the record would reveal that initially the present suit was decided by the fora below working under PATA Regulation II of 1975 and claim of the plaintiff/petitioners was dismissed by the entire hierarchy but their constitutional petition before this Court was allowed and the entire findings were set aside being without lawful authority and jurisdiction and the case was sent back.
Since Full Bench of this Court in the case of Muhammad Irshad v. Government of N.-W.F.P. In Writ Petition No,495 of 1989 reported in PLD 1990 Peshawar 51 had held that Regulation No, I and II of 1975 were not the pieces of valid law being violative of Article 25 of the Constitution and were for that reason void. The reason for such decision was that the ordinary law, both procedural and substantive laws were enforced in the area as well and the only difference was that the Jirgas under the Regulations I and II of 1975 were not bound by Criminal Procedure Code, Civil Procedure Code and Evidence Act. The findings of this Court were upheld by the apex Court when the Government appeal titled Government of N.-W.F.P. v. Muhammad Irshad (PLD 1995 Supreme Court 281) was dismissed. A reference by Additional District Judge/Izafi Zilla Qazi, Swat was made to this Court in the case of Abdul Samad and others v. Painda Muhammad and others reported in (PLD 1997 Peshawar 35) wherein it was concluded that only those cases would be transferred to the ordinary Courts wherein no final order was made and this finality was determined as that the trial Court should have decided the case once. It was also held that District and Sessions Judges would not be competent to hear appeals against the judgments of Deputy Commissioners passed under the repealed Regulations I and II of 1975 and those appeals and revisions would be dealt with in accordance with the ibid repealed Regulations. So, the confusion raised and the law point was once for all concluded. Thereafter this Court once again in the case of Abdul Malik v. Yar Muhammad and others in Writ Petition No,1216 of 1999 also held that if no final verdict was given by the trial Court working under repealed Regulation of 1975 then all the proceedings carried by the such forum would be nullity in the eye of law because of invalidity of PATA Regulations I and II of 1975 being violative of Article 25 of the Constitution of 1973 and all the proceedings conducted before the said forum were declared illegal and unlawful.
While keeping in view the above legal situation, now we can easily determine the status and fate of the case in hand. It is established on the record that all the decisions of dismissal of suit of the petitioners were set aside by this court in the revision petition referred .Above and the case was sent back for trial de novo. The matter after remand was sent to the Jirga members and the report of Jirga members was also submitted but before many decision could have been given by the trial Court, the Regulations were declared unlawful being violative of the provisions of the Constitution.
' The record would further reveal that the case in hand was accordingly transferred to the ordinary civil Courts working under Regulation II of 1994 (Nifaz-e-Nizam-e-Shariah) Regulation, 1994. The proceedings conducted by the transferee Court would reveal that neither fresh trial under the law was carried out nor any fresh consent of the parties regarding reliance on the already recorded evidence was obtained rather the transferee Court relied on the consent of parties given before the set up performing functions under the repealed Regulation of 1975. So, such findings in the given situation cannot be held to be findings under the law as discussed above.
' This Court, in the circumstances, has no option but to allow this revision petition by setting aside the findings of the two Courts below. The case in hand is sent back to the Court of Civil Judge, Bahrain for trial de novo if the parties don't agree regarding reliance on the already recorded evidence. Parties are directed to appear before the lower Court on 19-7-2012.