HAIDER ALI KHAN, J.---Through this petition, tribe of Utror through its representatives has prayed for the following relief:--- "On acceptance of this Constitutional petition, the impugned orders dated 15.3.2012 of Deputy Secretary Home Department, Khyber Pakhtunkhwa and dated 28.4.2011 of Additional Commissioner Malakand Division be declared as without lawful authority and of no legal effect by restoring the order of DOR/Swat dated 20.7.2010. OR to grant such relief as this august Court deems fit in the circumstances of the case."
2. Precise and relevant facts of the case are that during the regime of Ex-Ruler of Swat, a boundary dispute arose between the petitioners and respondents No, 1 to 7 regarding Banda Dessan (hereinafter to be referred to as the disputed territory). Both the parties claim that possession of the disputed territory lies with them since long and they are being benefitted from the said land mainly in the form of grazing right of their cattle hoard etc. According to stance of the respondents, the dispute was resolved for the first time by Sepah Salar vide decision No, 712 dated 10.9.1957 according to which the disputed territory was demarcated between the Tribes i,e, Utror and Kalam and the same issue was again decided by Wazir-e-Mulk of the former State of Swat vide decision No, 386 dated 30.8.1958. Record shows that both the tribes were not satisfied with the afore- mentioned decisions passed during the reign of Ex-Ruler of Swat State, therefore, representatives of both the tribes recorded their joint statement vide order sheet No, 497 dated 20.5.1961 duly signed by Wazir-e-Mulk as well as by the parties, whereby they agreed to decide their dispute through Sharaiat by Muhkama Qaza of the Swat State. During this period, the State of Swat merged into the Islamic Republic of Pakistan and so the positions of Ex-Ruler of Swat and other ministers/officers working under him were abolished. Resultantly, the Deputy Commissioner Swat became the administrative head of District Swat, however, the offices of Mashirs of the Ex-regime remained intact who actively helped the district administration even after the merger. On 11.6.1970, the Utror Tribe moved an application to the Governor of West Pakistan and requested for just resolution of the long-standing boundary dispute. The application was forwarded by Secretary to Governor of West Pakistan to Commissioner Malakand Division who further forwarded the same to Deputy Commissioner, Swat vide order dated 16.6.1970. The Deputy Commissioner reported that the dispute had already been resolved twice by the Ex-Ruler of Swat which decisions were not acceptable to both the parties. On 29.6.1970, Mashir of Upper Swat also reported to the Deputy Commissioner that though the parties had agreed to decide their case through Mahkama Qaza but resolution of the dispute through Shariah even earlier could not be finalized as none of the parties was ready to put forward its claim before Mahkama Qaza on 26.1.1961, the date already fixed for the purpose. However, according to the Mashir's report, the Kalam Tribe was persistent that the decision of Sepah Salar of Swat be acted upon whereas the Tribe of Utror was in demand for appointment of arbitrators/mediators for resolution of the dispute. Likewise, Mahkama Qaza of Swat also submitted similar report on 30.7.1970 to Additional Commissioner to the effect that the decision according to Sharia between the parties had not been finalized as no record to that effect could be found in the record of Mahkama Qaza. On 15.8.1970, Additional Commissioner namely Banat Gul Khan recorded a note on the basis whereof his successor passed an order on 16.6.1971. I would be appropriate to reproduce herein below the said order for the sake of convenience.
"This may be read with Mr. Banat Gul Khan's note of 15th August, 1970.
' This matter should no longer present any problem in being decided because orders have since been received that the orders passed by the Wali (Ruler) should not be reopened. In this case the final order of the Ruler was to the effect that the matter should be adjudicated through Shariat. All that needs be done, therefore, is that this order should not be carried out. It should not be left to the parties to agree to it or not. It would be for the plaintiff party to put forward its case first and if they refuse to do so, it would naturally follow that they are unable to substantiate their claim and their case will accordingly fail.
' The file is, therefore, sent to Deputy Commissioner, Swat for action accordingly".
' The above, order of the Additional Commissioner was challenged by the petitioners through a revision petition in the Court of Home Secretary, Government of N.W.F.P. Who vide his .Order dated 7.9.1987 remanded the case to the Deputy Commissioner, Swat by observing that:--- "(a) None of the parties are plaintiffs in any of the Courts and that a proper suit has not been instituted so far; The dispute pertains to Pre-PATA period in which the decision, if any, taken by the Ex-Ruler of Swat cannot be reopened;
(c) All the orders/correspondence including letter from the Deputy Commissioner, Swat to Commissioner, Malakand No, 1669/XIV/23, dated 14.7.1970 are mere executive orders and directions which cannot be taken as judicial orders;
(d) From the entire discussion, this Court has failed to understand the grievances of the petitioners.
' In view of the above, I am of the opinion that the dispute cannot be resolved under such circumstances through any order of this Court as rightly pointed out by the counsel for the respondents. Since, the revision petition has not been based on any legal judicial order of any Appellate Court, the case file is, therefore, remanded back to the Deputy Commissioner, Swat who after study of the entire dispute and in the light of Government directions regarding inter-tribal disputes decided by the Ex-Ruler of Swat take action accordingly. However, these orders shall not bar any of the parties to bring any fresh suit in the lower Court if they desire so. The revision petition accordingly stands disposed of."
3. On remand of the case, the Deputy Commissioner Swat vide order dated 8.7.1998 deputed the Additional Deputy Commissioner, Swat with the directions to inspect the disputed territory in presence of both the parties and thereafter submit his report. Feeling aggrieved of the above order of the Deputy Commissioner, the respondents preferred appeal which was dismissed by the Additional Commissioner vide order dated 8.10.1998, the relevant portion whereof is as under:--- "Parties present with their counsel. Arguments heard in detail. Record of the case file perused. From perusal of the case file the convening Court have passed the similar nature order sheet dated 5.6.1991 but the appellants party have not moved an appeal against that order sheet. Therefore, I am of the opinion that the order of the lower Court dated 8.7.1998 is based on justice and there is no illegality in the same order. Hence, the same is maintained and the appeal stands dismissed.
Parties are directed to appear before the Additional Deputy Commissioner, Swat on 17.10.1998".
' The above order was further challenged by the respondents in revision petition which also met the same fate of dismissal vide order dated 10.4.2004 of the Additional Secretary, Home Department who observed in Para-8 of the said order that:--- "8. This is something very strange that the petitioners are avoiding spot visit by the Revenue Administration. If at all the Deputy Commissioner has directed a spot visit without any direction, this Court does not feel that it will create any legal complications or any injustice to any of the parties. Therefore, the present petition is filed and the Revenue Administration is allowed to visit the spot".
' Even still discontent, the respondents moved yet another revision petition to the Additional Secretary, Home Department for clarification of his above-referred previous order, however, once again the revision petition stood dismissed vide order dated 17.8.2004 of the Additional Secretary, Home Department who for this time, concluded that:--- "The whole matter pertains to the spot verification of the area where the disputed demarcation is in question. The Deputy Commissioner Swat, in his order in fact has referred the case to the Additional Deputy Commissioner Swat for spot verification. The question of alteration the demarcation done by the Ex-Rule of Swat will be decided strictly according to the directions passed by the Additional Secretary Home Department dated 7.9.1987. The terms for the verification report shall be determined by the Court, which has issued the directions."
4. It is pertinent to mention here that later on owing to certain amendments in laws, the office of Deputy Commissioner as chief officer of the Revenue Administration was replaced by District Officer (Revenue & Estate) (D.O.R) and likewise A.D.C. And K.A.C. Were respectively replaced by Deputy District Officer (Revenue) and A.C.O. In view of the above development, the D.D.O.R. Swat had to proceed further with the matter in accordance with directions contained in order dated 8.7.1998 of the Deputy Commissioner, Swat and he was required to submit his report to D.O.R., Swat.
Accordingly, both the parties opted to resolve the dispute through local Jirga and to that effect they recorded their joint statement before the D.D.O.R. On 13.9.2007. Apart from recording their joint undertaking, both the parties executed their separate power of attorneys on 14.11.2007 whereby they nominated and authorized the local members from each side to decide the issue and both the parties also undertook that they will abide by the decision/award, so rendered by the local Jirga.
Accordingly, a grand Jirga comprising the elders of Bahrain (Swat), Thal Lamotai, Kalkot (Dir Upper) and Kohistan was constituted, who decided the issue on 29.7.2008 and submitted the unanimous decision before the D.D.O.R., Swat who after hearing the parties, submitted his report alongwith objections of the respondents to D.O.R., Swat vide order dated 22.6.2010. It is noteworthy that the respondents also submitted a separate deed on stamp paper purported to be a decision of the said Jirga but the same deed was declared forged by the D.O.R. In view of affidavits submitted on behalf of the Jirga members whereby they had denied issuance of any second award in the matter. The D.O.R., Swat, accepted the award dated 29.7.2008 of the referee/Jirga vide order dated 30.7.2010. Relevant paras of the order are reproduced herein below for the sake of convenience: "In the light of the above attorney letters the power holders have paid visits to the spot and furnished their award. Award No, 1 which consists on five pages, on stamp paper is dated 29.7.2008 in which the Jirga members/attorney holders have stated that they are going to demarcate the disputed Banda as per Waterfall of the hills and declare that from the waterfall towards North-East, the property/Banda will be the title of quom Utror whereas the waterfall towards South i,e, Kalam area has to be declared as the right of quom Kalam. This award is dated 29.7.2008 containing the signatures/thumb impressions of various prominent elders nominated as arbitrators for the settlement of the issue, whereas Nazims of Union Council, Mankial, Union Council, Balakot and Union Council Behrain are witnesses towards this document. Another subsequent award is also available on record which is dated 30.7.2008; photocopy was earlier available on case file whereas its original was submitted on 23.7.2010 to this Court, which is placed on case file. This award has been written on two sheets of stamp paper each Rs, 30/- (total rupees sixty) but no stamp and number of the stamp vendor is available thereon. In this award, the signatories of the award have stated that the decisions of Wali of Swat have already been arrived at between the two Quoms be declared as final decision.
' In this context, it is pointed out that the earlier decision arrived at between the parties cited above have not found its finality earlier resulting that the dispute still exists. Moreover, perusal of the same shows that most of the signatories have not been given power to set between the nominated attorneys and to furnish award. This award is doubtful. Furthermore, as per general phenomenon, the waterfall between two estates in hilly areas are normally remains its demarcated area. Both the Quoms are in the habit of submitting statements from various declarants saying that the signatory has not signed the award in favor of the other party. These declarations/affidavits have also been placed on record. In this context, this Court is at liberty to mention para-422 of the Land Administration Manual whereby in such long standing disputes the Collector should himself fix a line for amicable settlement of the issue so that this long standing issue come to its end. As such, the award of the Jirga dated 29.7.2008 is more comprehensive seems authentic and according to Rewaj of the illaqa is hereby accepted and the second dated 30.7.2008 being doubtful is rejected accordingly.
' Both the parties have already furnished power of attorney in favor of various elders and most of these elders are signatories to the award of Jirga dated 29.7.2008 whereas three Nazims of Union Councils are its witnesses. The same award is according to the custom and Rewaj of District Swat.
' As regards deviation of various signatories from the facts as per their affidavit, the issue falls under the jurisdiction of the Civil Court and the aggrieved party can seek remedy in the proper forum. Furthermore, the aggrieved party is at liberty to seek remedy against this order in the next higher forum if so desire. The case is disposed of accordingly with no cost."
' Being aggrieved, the respondents preferred appeal against the above order of D.O.R. Which was accepted by the Additional Commissioner vide order dated 28.4.2011, last paras whereof are as below: "Reopening of such decisions will be tantamount to interpret the Constitution and laws and such powers if any are only vested with the higher judicial forum and not with District Officer Revenue & Estate/ Collector or any other executive authority. The people of Utror should have gone to the competent forum after the merger of the Ex-State of Swat and it was then for that competent forums to decide as to whether such settled and decided dispute can be reopened by any authority or not?
' Keeping in view all the above-said facts and provisions of laws, I hereby accept this appeal. I declare the order of the District Officer, Revenue & Estate, Swat dated 30.7.2010 as null and void, without jurisdiction and unlawful. I quash all his proceedings including the opinions of the Jirga. The inter Tribal dispute was decided by the ex-ruler and cannot be re-opened."
' Feeling aggrieved by the order of the Additional Commissioner, the petitioners challenged the same before the Deputy Secretary, Home Department which stood dismissed vide order dated 15.3.2012 in the following terms:--- "Notwithstanding arguments for and against/ presented by both the parties in detail, some of them in chronological order and the substance contained therein but this Court after a threadbare deliberation came to the conclusion that none of the Courts established under Rewaj and FATA Regulations including the Additional Commissioner have the powers to exercise/adjudicate this case in any capacity as such the decision of the aforesaid Court dated 28.4.2011 stands null and void. Simultaneously, the Provincial Government has delegated ,powers to DOR to adjudicate and execute cases under MLR 123 of 1972; however, he can neither try a case under Rewaf PATA Regulation nor can delegate powers to any lower forum to decide a case on his behalf under MLR 123 of 1972. The verdict of DOR dated 30.7.2010 being deficient of authority also stands set aside. This Court is vested with the mandate to entertain/ adjudicate appeals and revisions under Rewaj and PATA Regulation vide Notification No, SO (Judl.)HD/3021/05, dated 8.4.2010, however, having no lower hierarchy or field formations where the case could have been remanded or sent back for constitution of commission to adduce evidence and verily veracity of facts on the grounds.
Moreover, it cannot be left to the mere wisdom of a few individuals without sanction of law to decide a case involving the fate of thousands of people and millions of financial stakes merely on prefixes and suffixes. Since a lot of complicated matters of facts and law are involved, therefore, the case is referred to the Civil Court having original jurisdiction to adjudicate it according to law of the land. Parties may bear their own costs."
' Being aggrieved, the petitioners have filed the instant writ petition seeking cancellation of orders dated 28.4.2011 and 15.3.2012 of the Additional Commissioner and Deputy Secretary, Home Department respectively.
5. I have heard arguments of learned counsel for the parties and gone through the available record in light of their valuable assistance.
6. Perusal of the record would reveal that the present dispute is a long-standing issue between the two tribes namely Utror (the petitioners) and Kalam (the respondents) which, even in the past, was attempted to be settled by different fora i,e, during the regime of Ex-Ruler of Swat as per respondents' contention and later on by the Revenue hierarchy through constitution of a Jirga convened with the mutual consent of both the parties, the legal status whereof is to be looked into by this Court. Learned counsel for the respondents argued that the issue has finally been decided during the regime of Ex-Ruler of Swat which is a closed chapter and being protected under the law, cannot be reopened through post-merger proceedings initiated by the petitioners. He further contended that deciding the present issue was beyond the mandate of D.O.R. As observed by the learned Deputy Secretary, Home Department in his impugned order. For resolution of the present controversy, I would like to take up the main points for discussion firstly, the legal status and scope of the decisions rendered by the authorities under the Ex-Wali of Swat, and secondly; the decision rendered by DOR, Swat in light of award of Jirga coupled with jurisdiction of the said Court in the matter.
7. Record shows that as per contention of the respondents which was vehemently agitated by their learned counsel, that the issue relating to demarcation of Banda Dessan had been decided for the first time by Sepah Salar of the former Swat State vide decision No, 712 dated 10.9.1957 which was maintained by Wazir-e-Mulk through his subsequent decision bearing No, 386 dated 30.8.1958, hence, the controversy has finally been decided by Ex-Ruler of Swat which cannot be re-opened by the petitioners through litigations initiated by the petitioners after merger of the former state of Swat into Pakistan. Photocopies of the above-referred decisions, written in Pashto language are available on the record, Urdu translation whereof has been provided by learned counsel for the petitioners. However, there is also a copy of joint statement of both the parties recorded vide order sheet No, 497 dated 20.5.1961 by Wazir-e-Mulk of the former Swat State whereby the respondents had opted for resolution of the dispute through Sharia by Mehkama Qaza of Swat established by the former ruler. The same order is also in Pashto transcript, Urdu translation whereof is available on the file which is reproduced herein below for the sake of convenience: {{URDU TEXT}} ' The above statement/undertaking has duly been thumb impressed by representatives of both the parties which also bears signatures and stamp of Amir Said, Wazir-e-Mulk of the former State of Swat. The above fact gets further support from the report of Mashir of "Bar Swat" (Upper Swat) dated 29.6.1970 submitted by him to the Deputy Commissioner, District Swat which is as under:--- ' It is evident from the documents referred to above that the issue had not been finally decided during the regime of ExWali of Swat and later on Wazir-e-Mulk, who was the competent authority at that time, had permitted the parties to decide their dispute according to Shariah through Mehkama Qaza, Swat. Here the question arises that if the dispute had finally been decided by Sepah Salar and Wazir-e-Mulk as per contention of the respondents, in that case, why the same episode was reopened by Ex-Wali of Swat through Wazir-eMulk for resolution thereof by Mehkama Qaza. Answer to the above question is clear from the documents referred to above that both the parties were not satisfied with the decision of ExWali of Swat and that is why both the parties had consented to resolve the dispute through Shariah Law despite the fact that Sepah Salar and Wazir- e-Mulk had unilaterally decided the dispute earlier. Hence, for the reason of discord between both the parties with the earlier decisions of Sepah Salar and Wazire-Mulk, they again made a request to the latter for resolution of the dispute through Sharia law. However, record shows that the dispute could not be resolved by Mehkama Qaza as is evident from the report dated 30.7.1970 submitted by the said department to Additional Commissioner. The same report has also been translated into Urdu which is as under:---{{URDU TEXT}} ' Apart from the above, when the case was sent to Additional Deputy Commissioner, Swat, the respondents had submitted an application on 30.3.1994 wherein they had raised the plea that the Deputy Commissioner was competent to decide the case and for that reason the case was sent back to the Court of Deputy Commissioner for decision. In this regard last para of order dated 19.3.1998 of Deputy Commissioner Swat is relevant which is reproduced herein below:--- "The case remained under adjudication in the Court of D.C. Till 27.5.1992, whereafter it was transferred to the Additional Deputy Commissioner, Swat for disposal. Again on 30.3.1994, on the application of Kalam Tribe that only the D.C. Was competent to decide the case in the light of order of Additional Home Secretary, the case was sent back to D.C., Swat and is pending with him till date."
' Later on when the case was transferred to the Court of District Officer Revenue & Estate, Swat, the respondents again opted for decision of the case through Jirga and in this regard they executed their power of attorney in favor of Jirga members whom they had nominated and who decided the dispute amicably passed the impugned order. The upshot of the above discussion is that the respondents had shown their willingness to get the dispute decided through award shariat, as against the decisions of Ex-Wali of Swat which is evident from the afore-mentioned documents and at this stage they cannot raise the plea that the issue had finally been decided by Ex-Ruler of Swat because in this regard they are legally estopped by their own conduct firstly; they gave their consent to decide the to shariat which could not be given effect to, because the respondents refused to abide by the same, secondly; they opted for resolving the dispute through Jirga and executed their power of attorneys whereby they had duly authorized the Jirga members for resolving the dispute and thirdly, they did not challenge the proceedings of Jirga before any forum despite the long period since constitution of Jirga uptill rendering of the award. Hence,, it is held that the dispute agitated in the instant writ petition had not finally been decided by Ex-Ruler of Swat and former decisions, if any, had lost efficacy in view of the given developments over the period of time into the matter mainly with the consent of both the panics, hence, the issue was pending decision/resolution even during the regime of Ex-Wali of Swat which was transferred to the District Administration after merger of Swat State into Pakistan. Likewise, as the earlier decisions were not final in nature, as discussed earlier, therefore, there remains no question of protection thereof by any law for the time being enforced, therefore, there is no force in the contention regarding this point hotly argued by learned counsel for the respondents.
8. Now coming to the decision dated 30.7.2010 of D.O.R., record shows that the District Officer vide his office letter No, 587/I/Judl., dated 30.8.2007 entrusted the case to Deputy District Officer for spot verification who visited the spot, held meetings with elders of both the sides and finally succeeded to obtain consent of both the parties to settle the dispute according to Rewaj and, custom of the area, which is/was popularly known as shariat through convening a local Jirga comprising the elders of Bahrain (Swat), Thai Lamotai and Kalkot (Dir Upper). Accordingly, both the parties issued duly attested power of attorneys in favor of their hand-picked Jirga members who had to give a decision regarding the dispute acceptable to both the parties as per their joint undertaking dated 13.9.2007 duly signed/thumb impressed by them before the D.D.O.R. Which is reproduced herein below:--- {{URDU TEXT}} ' Record shows that thereafter the Jirga members/ attorney-holders had visited the spot in presence of both the parties and furnished their award dated 29.7.2008 to the Deputy District Officer, Swat. The concluding para of the award/decision, being the crucial abstract, is reproduced herein below:---{{URDU TEXT}} ' Record shows that the award was rendered by fifty prominent elders of the area in whom both the parties had reposed their trust. Perusal of the. Award would show that the elders had given a realistic, fair and just solution of the long standing dispute between the parties according to Rewaj of the area. From arguments advanced by learned counsel for both the parties and the available record it is clear that water-shed has always been considered as a natural boundary line for the purpose of demarcation of hilly areas and there is no justification on the part of the respondents to deviate from the above time tested, long standing, well-established and admitted custom for resolution of the issue in hand. Admittedly, the distance of the disputed land from Kalam is five KMs whereas it is hardly two KMs away from Utror. This fact gets further clarification from report of the inquiry committee constituted vide order dated 18.9.2013 of the Assistant Commissioner Behrain he submitted during proceedings under section 145, Cr.P.C. Regarding the disputed area. According to this report, it takes one hour if one goes from Utror to Dessan Banda whereas 5/6 hours would be required to reach the same destination from Kalam. It is also mentioned in the said report in detail that towards north of the water ridge (the disputed boundary line), Dessan Banda (including the cultivated lands, the grazing fields and forest) are in possession of the residents of Utror i,e, the petitioners. Therefore, in light of the custom of the area, decision of the local Jirga convened with consent of both the parties and report of the inquiry committee referred to above, the natural boundary line between the parties is the water shed/water-fall, hence, it can safely be concluded that the Jirga members had arrived at a just, fair, equitable and reasonable conclusion of the dispute. The award handed down by the Jirga needs no implementation as both the parties are occupying their respective boundaries since time immemorial and for many generations, enjoying usufruct of the area under their respective possessions. The District Officer, Revenue & Estate Swat has committed no illegality by accepting award of the Jirga under Rewaj of the area, therefore, no exception could be taken to his order dated 30.7.2010.
9. The last question that needs clarification by this Court is the jurisdiction of D.O.R. In the matter which was vehemently raised by learned counsel for the respondents. Learned Deputy Secretary, Home Department through his impugned order dated 15.3.2012 has held that neither, the Additional Commissioner nor the D.O.R. Had the authority under Riwaj/PATA to pass the orders dated 23.4.2011 and 30.7.2010 respectively. Admittedly, functionaries of the former Swat state were substituted through Notification No, 29/47-Home(GAI)TA/69, dated 5.12.1970 wherein at Serial No, 3 powers of the Deputy Commissioner Swat/Additional Deputy Commissioner Swat have been enumerated whereby they could entertain "all cases of murder and cases in which women are involved on the original side, and all other cases in which orders have been passed by the Mashirs/Sub-Divisional Officers, on the appellate side. Likewise, at Serial No, 4 of the ibid notification, Extra Assistant Commissioner had been empowered to hear (a) cases both Criminal and Civil on the original side, as per practice in vogue (b) appeals against the orders of Hakims and Tehsildars. Similarly, application of West Pakistan Land Revenue Act, 1967 and Code of Civil Procedure, 1908' were extended to PATA vide N.W.F.P. Regulation 1 of 1974 as a result whereof the Deputy Commissioner/Collector was the functionary who exercised the powers both under notification ibid dated 5.12.1970 as well as under the West Pakistan Land Revenue Act, 1967 which is clear from Section 3(10) of the General Clauses Act, 1897. No doubt, under Paragraph 7(1), of the N.W.F.P.
Regulation I of 1974 the earlier custom and usage had ceased to have effect but on the other hand under Paragraph 7(2)(a) and 7(2)(d) of the Regulation ibid, the previous operation of custom and usage as well as the previous proceedings thereof were saved. It would be appropriate to reproduce the mentioned Paragraphs of the Regulation herein below for the sake of convenience:- -- Certain laws to cease to operate.--- (1) If, immediately before the commencement of this Regulation, there was in force in the said Areas any law, instrument, custom or usage having the force of law corresponding to the provisions of any of the laws applied to those Areas by this Regulation, such law, instrument, custom or usage shall, upon such commencement, cease to have effect in those Areas.
(2) Nothing in sub-section (1) shall affect--
(a) the previous operation of any such law, instrument, custom or usage or
(b) ..
(c) any investigation, proceeding or remedy in respect of any such penalty, forfeiture or punishment and any such investigation, proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if sub-section (1) had not come into force."
' Admittedly, in view of amendments in certain laws, the powers formerly exercised by the Deputy Commissioner or Additional Deputy Commissioner were transferred to D.O.R. And D.D.O.R.
Respectively and so the present dispute which was pending before the Deputy Commissioner was also transferred to D.O.R. For resolution and he had to proceed further with the matter in light of order dated 7.9.1987 of the Additional Home Secretary- wherein directions had been given to the Deputy Commissioner to decide the dispute in light of the Government directions regarding the inter-tribal disputes. No doubt, the present dispute regarding fixation of the boundary was pending under customary law since the time of Ex-Wali of Swat which remained pending before various Rewaj/customary Court, therefore, under the West Pakistan Land Revenue Act, 1967 as well as under the customary law/Rewaj Law the Collector (including the Deputy Commissioner under Section 3(10) of the General Clauses Act, 1897) was empowered to decide the pending disputes regarding the boundary fixation of estates. This point has been clarified by this Court at the principal seat in an unreported judgment dated 14.11.1994 rendered in W.P. No, 701 of 1992 titled "Mst.
Bibi Laiqa v. Mst. Mayar Bibi" the relevant portion whereof is reproduced herein below for ready reference:--- "4. The proceedings which culminated in the impugned order were initiated by the petitioners in the year 1971 when the disputes were adjudicated upon by the forums provided by the Notification dated 5.12.1970 afore-mentioned. These forums were to follow the same procedure in administering justice that was followed by the judicial forums in the erstwhile States of Dir, Swat and Chitral and were to adjudicate disputes in accordance with the prevailing in the said States before their merger, namely. Rewaj (Local Customary Law)".
' Yet in another judgment rendered by this Court on 28.11.2000 in W.P. No, 477 of 1993 titled "People of Village Kalkot v. People of Village Barikot" having identical facts, it was held that the Deputy Commissioner as a Rewaji Court was competent to decide the boundary dispute according to Rewaj on the basis of report of the Jirga. The same judgment was upheld by the august Supreme Court vide judgment dated 15.10.2004 in C.P No, 64-P of 2001.
' In light of the afore-mentioned laws/notification and judgments of this Court, I feel no hesitation by holding that the present dispute which was pending under Rewaj, had to be decided by Rewaji/Executive Courts after extension of regular laws and, as such, the D.O.R. Was competent to decide the present issue of fixation of boundary line by virtue of powers conferred upon him under Sections 117 and 172 of the West Pakistan Land Revenue Act according to report of Jirga constituted with the consent of both the parties specially when there is no settlement carried out in the area ever.
10.It would not be out of place to discuss jurisdiction of the Civil Court in the present matter. The learned Deputy Secretary Home/Presiding Officer of Revisional/Appellate Court has held in the impugned judgment dated 15.3.2012 that "since a lot of complicated matters of law and facts are involved, therefore, the case is referred to the Civil Court haring original jurisdiction to adjudicate it according to law of the land". Since, the issue involved in the present case is with regard ,to fixation of boundary and jurisdiction of the Civil Court in the same matter is expressly excluded under Section 172(2) of the said Act, therefore, the above findings of the learned Deputy Secretary Home are against the express provisions of law, hence, not legally sustainable.
11.In view of what has been discussed above, interference of. this Court under its Constitutional jurisdiction with the impugned orders has become inevitable, therefore, this writ petition is accepted and the impugned orders dated 15.3.2012 and 28.4.2011 of the Deputy Secretary Home, Khyber Pakhtunkhwa and Additional Commissioner, Malakand are hereby set aside, resultantly, order dated 30.7.2010 of the District Officer, Revenue & Estate/ Collector, Swat is hereby restored.