1. ANWARUL HAQ, C. J.--This appeal, by the leave of the Court, is directed against an order made by a Division Bench of the Peshawar High Court on the 16th of May 1978, by which a constitutional petition calling in question the revisional order passed by a Deputy Secretary to the Government of the North-West Frontier Province in the Home and Tribal Affairs Department on the 22nd of November 1972, was dismissed in limine.
2. The dispute relates to the realization of certain customary dues by respondent No. 1 namely, the Painda Khel Tribe, from the appellants, who are members of the Swati Tribe in Dir District. By an order made on the 26th of April 1969, the Political Agent, Dir, accepted the claim of the respondents on the basis of the findings of a Jirga appointed with the consent of the parties. Thereupon the appellants preferred an appeal, which was accepted by the Additional Commissioner, Malakand Division, by his order dated the 28th of July 1971. Aggrieved by the appellate order the members of the Painda Khel Tribe, i.e., the respondents, went up in revision to the Provincial Government, which was accepted by a learned Deputy Secretary to that Government in the Home and Tribal Affairs Department by his order dated the 22nd of November 1972, on the short ground that the appeal filed by the present appellants before the Additional Commissioner, Malakand Division, was barred by time. He, accordingly, set aside the appellate order and restored the original order of the Political Agent, Dir, which had gone against the appellants.
3. At the preliminary hearing of the petition for special leave to appeal on the 14th of December 1973, this Court had asked the learned Deputy Secretary concerned to let us know of the law or rules under which the matter had been dealt with, especially the provisions relating to limitation for filing appeals and revisions. From the report submitted by this officer on the 19th of December 1973, it appears that cases on the civil and revenue side in Dir District are decided under the custom prevailing in the area in accordance with paragraph 7 of the Dir, Chitral and Swat (Administration Regulation), 1969, and that vide Paragraph No. 164 of Dasturul Amal, 1963, of the former Dir State, the limitation for filing appeals is one month.
4. Leave to appeal was granted to examine the contention that the learned Deputy Secretary, acting in revision, was in error in thinking that the appeal filed by the appellants before the Additional Commissioner was barred by time, as although the order of the Political Agent was made on the 26th of April 1969, yet it was not signed by this officer until the 13th of June 1970. It was stated then that a copy of the order was supplied to the appellants on that date, and the appeal was filed within three days on the 16th of June 1970, and was, therefore, within time.
5. We have now examined the relevant Departmental file with the assistance of the counsel from both sides, and it does appear that although the order of the Political Agent was announced in the presence of the Jirga on the 26th of April 1969, yet for some reason it was not signed by him on that date, and the file had to be sent to this officer at Lahore where he had gone on transfer to another appointment under the Government of West Pakistan. From the correspondence contained in this file it becomes abundantly clear that the order was signed by the Political Agent concerned at Lahore in March 1970and when the file was received back by his successor, who bad been designated as Deputy Commissioner of Dir District in the meantime, notice was issued to the members of the Jirga, and in their presence the formal order was then communicated to all concerned on the 13th of June 1970. Copies were supplied to both the parties on that date, and, accordingly, the appeal fled within three days of this date was clearly within time. It is obvious that until such time as the order had been signed by the Political Agent and copies made available to the appellants, they could not file an appeal against this order.
6. We also notice that in the appellate order of the learned Additional Commissioner the fact that the appeal had been filed on the 16th of June 1970, was noticed in the last paragraph, and it was observed that it was not barred by time for various reason, which need not be gone into. These observations show that the learned Additional Commissioner was fully aware of the facts, which had led to delay in the filing of the appeal. However, the learned Deputy Secretary, acting in revision, overlooked all these facts and simply observed that the appeal filed before the Additional Commissioner was barred by time. This was clearly an erroneous conclusion, arrived at in complete disregard of the facts relating to the delay in the signing of the formal order by the Political Agent and the supply of its copies to the parties. In this view of the matter, the revisional order made by the learned Deputy Secretary could not be sustained, and had to be set-aside on the ground that it had proceeded in complete disregard of the material available on the record on the question of limitation.
7. The learned Judges in the High Court were in error in thinking that the writ petition moved before them was liable to be dismissed on the simple ground that the revisional Court had the jurisdiction to decide the question, that the appeal before the Additional Commissioner, Malakand, was barred by time. Even if the learned Deputy Secretary had the jurisdiction to decide this question, this jurisdiction had to be exercised in a judicious manner on the basis of the facts having a bearing on the question of limitation, and not in utter disregard of the same. Any decision taken by a competent authority by ignoring or misreading material evidence is liable to be quashed by the High Court in the exercise of its powers of judicial review.
8. It was, however, contended on behalf of the respondents that the matter cannot be allowed to be decided on this basis alone, for two reasons:---
(a) That on the date the revisional authority gave its decision, namely, the 22nd of November 1972, the High Court had no jurisdiction in relation to the Tribal Areas of Dir, Chitral and Swat States, and, accordingly, no writ could have been issued to correct the error, which had crept into the revisional order ; and
(b) That even the Additional Commissioner had no appellate jurisdiction under the Dastur-ul-Amal of Dir State, and, therefore, the appellate order made by him in favour of the appellants was a nullity in the eye of law, and the matter stood concluded by the initial order made by the Political Agent, Dir, on the 28th of April 1969, irrespective of the fact whether it was formally signed and announced on the 13th of June 1970.
9. The question of the jurisdiction of the Supreme Court and the High Court in relation to the Tribal Areas of Baluchistan and of Dir, Swat and Chitral in the North-West Frontier Province came for exhaustive examination in Ch. Manzoor Elahi v. Federation of Pakistan (PLD1975 SC 96), and it is, therefore, not necessary to go over the same ground again in the present case. Suffice it to say that by President's Order XXVII of 1973, promulgated on the 9th of February 1973, the writ jurisdiction of the Peshawar High Court was extended to the Tribal Areas of Dir, Swat and Chitral. From that date onwards there could be no doubt of the availability of this jurisdiction in relation to the dispute involved in the present proceedings. It is true that the revisional order by the Deputy Secretary concerned was made on the 22nd of November 1972, i.e. Before the promulgation of the President's order just mentioned, but it was stated at the bar that subsequently the appellants had filed a review petition before the Provincial Governor, which was sent by him for disposal to the same Deputy Secretary, and the review was dismissed on the 18th of February 1973, i.e. After the extension of the High Court's jurisdiction to the Tribal Area of Dir. It was submitted on behalf of the appellants that on this account the High Court was fully competent to interfere in the matter.
10. The learned counsel for the respondents contended that no review petition was maintainable under the law, and, therefore, the order communicated to the appellants on the 13th of February 1973, did not provide them with any legal cause of action so as to enable them to invoke the writ jurisdiction of the High Court. It is correct that in the Dastur-ul---Amal of Dir State or in the Dir, Chitral and Swat (Administration Regulation), 1969, there is no specific provision for review as such, but was find that under paragraph 151 of the Dastur-ul-Amal of Dir State wide powers were given to the Central Court presided over by the Nawab of Dir or his Prime Minister to dispense with any provision of the Dastur-ul---Amal for any national or political reason. Similarly under section 21 of the General Clauses Act there is power in the competent authority to recall an order for sufficient reason. In a matter like the present, where the rights of various Tribes are involved, the Provincial Government would appear to have the power of review so as to correct errors, which might have crept in at the revisional stage. On this view of the matter, we consider that the final order having been conveyed to the appellants on the 13th of February 1973, their writ petition was maintainable in view of the extension of jurisdiction conferred by President's Order XXVII of 1973 dated the 9th of February 19'73.
11. The contention that the appeal was not competent before the Additional Commissioner was not raised on behalf of the respondents before the appellate authority, and for this reason cannot be permitted to be raised in the present proceedings. Even otherwise the contention is not well-- founded, for under paragraph 166 of the Dastur-ul-Amal, it is clearly provided that the aggrieved party will have at least one right of appeal against the decision of the Jirga. As with the merger of the Dir State into the District of Dir the powers have since devolved on the Deputy Commissioner, the Commissioner and the Provincial Government, it is clear that the appellate jurisdiction vested in the Divisional Commissioner or the Additional Commissioner. It was obviously for this reason that when the Additional Commissioner heard the appeal, no objection was raised on behalf of the respondents to its maintainability, nor was any such objection raised at the revisional stage, and only the question of limitation was agitated.
12. For all these reasons, we are of the view that the learned Judges in the High Court should have set aside the revisional order of the Deputy Secretary, Home Department, as he was clearly in error in thinking that the appeal filed by- the appellants before the Additional Commissioner was barred by time.
13. As a result, the appeal is accepted, and the case is remitted to the revisional authority for considering the matter on merits. On behalf of the appellants it was contended that the Provincial Government or the Deputy Secretary had no revisional jurisdiction in the matter. We consider that it is not expedient for us to decide this question in the present proceedings and it is left open to the appellants to agitate this point before the revisional authority.
14. In the circumstances there will be no order as to costs.