MUHAMMAD NASIR MAHFOOZ, J. Through the instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner has prayed this Court for the following relief:- It is, therefore, humbly prayed and submitted that on acceptance of this Constitutional petition: i. That vires of West Pakistan Land Revenue Act of 1967 (West Pakistan Act No.XVII of 1967) to the extent of allowing class of revenue officers, performing judicial function s in the Province of Khyber Pakhtunkhwa as ultra vires of the Constitution of Islamic Republic of Pakistan, 1973. ii. Any such order be passed which the Hon'ble Court deems fit and appropriate in determination of the Constitutional Petition for securing the ends of justice.
2. Brief facts of the case as per contents of the writ petition are that the petitioner being citizen of the State of Islamic Republic of Pakistan, aims at seeking expeditious justice for the effective functioning of the judicial system in line with law, established rules, norms and standards expedient and necessary for due administration of justice. West Pakistan Land Revenue Act of 1967 was enacted to consolidate and amend the law relating to the making and maintenance of record-of rights, the assessment and collection of land revenue, the appointment and functions of Revenue Officers and other matters connected with the Land Revenue Administration in the Province of West Pakistan. It is averred in the petition that it goes without saying, the revenue officers adjudicates upon issues, wherein the executive is a necessary party in almost every single matter brought before it and likewise the executive enjoys original as well as appellate and supervisory jurisdiction over the same, which per se impinges upon the notion of independence of judiciary. Astonishingly, the stated law provides for executive to be considerably part of judiciary which by a long chalk is undurable, impinging upon Article 175 (3) of the Constitution of Islamic Republic of Pakistan. Imparting justice, right of access of justice and independent judiciary is one of the most important rights of the citizens and any threat to the independence of judiciary tantamount to denial of justice, which undoubtedly is a fundamental right under Article 9 of the Constitution of Islamic Republic of Pakistan. In this regard, petitioner referred to case laws reported as PLD 2000 SC 869, PLD 2012 SC 923, PLD 1994 SC 105, PLD 2013 SC 501 (at para 45), PLD 2010 SC 61, PLD 2013 Lhr 386, 2017 SCMR 683 and PLD 2010 SC 265. The petitioner, having left with no other option but to bring information before the Hon'ble Court, floating on the surface aimed at damaging the ethos of the State of Islamic Republic of Pakistan, allowing bad governance and that too to the detriment of the people of Pakistan, the West Pakistan Act No.XVII of 1967 to the extent of allowing class of revenue officers, performing judicial function is brought under question by invoking the constitutional jurisdiction of this court.
3. Learned counsel for petitioner in person as a pro-bono-publico mainly reiterated the grounds raised in the writ petition and read the relevant Sections 27, 141 and 172 of the Khyber Pakhtunkhwa Land Revenue Act, 1967.
4. Learned AAG controverted the arguments and submitted that the revenue officers' functions within given sphere of the Act and it does not transcend the limits to be in violation of the doctrine of trichotomy of powers and independence of judiciary .
5. We have heard arguments of learned counsel for the parties and have perused the documents available on the file.
6. Provisions regulating fundamental rights in the constitution has pre-eminence and caters to manage and establish standards, compare actual performance of state functionaries within constitutional framework vis-a- vis others. It acts as a touchstone to identify any deviations or if any violation appears in sub constitutional legislation then corrective measures, if needed, are taken or when called upon to do so. In this backdrop, we are called upon to see that whether or not certain provisions of the Khyber Pakhtunkhwa Land Revenue Act, 1967, violates the doctrine of trichotomy of powers and independence of judiciary clause as contained in Article 175 of the Constitution.
Any departure therefrom is in violation of Article 4 to enjoy the protection of law and to be treated in accordance with law, Article 8, laws inconsistent with or in derogation of Fundamental Rights to be void, and Article 25, all citizens are equal before law and are entitled to equal protection of law as enshrined in the Constitution, consequently no one is to be deprived of right to fair trial as Article 10-A is now embedded into the provisions of the Constitution of 1973 after the 18'' amendment. No such provision was part and parcel of the Constitution of 1962 when the Act ibid was promulgated. Amongst its salient features even though independence of judiciary was only alluded therein but still had certain undefined limitations attached.
7. The instant petition besides invoking the clause of trichotomy of powers as envisaged by Article 175 of the Constitution, also involves the rule that civil court is the court of ultimate jurisdiction to try all suits of civil nature and ordinary criminal courts are to try all criminal matters, unless expressly barred. But the ouster clause must be in consonance with the salient features of the constitution and rules of administration of justice. To draw a distinction on applicability of the doctrine different theories have emerged from different philosophies and the Supreme Court derived the conclusion in view of trichotomy of powers, that no court shall function if it is not directly subordinate to the superintendence of the Judiciary. It is abundantly clear that civil courts can take cognizance of the matter irrespective of the barring clause in the special enactment, if the order or action is not qualified according to the criteria laid down by the apex court in plethora of case laws. Two of such are mentioned below.
In Gul Shah and others v. Hafiz Ghulam Muhammad and others (2009 SCMR 1058 ), the Hon'ble Supreme Court of Pakistan held that: "Admittedly , under Section 14 of Act XIII 1975 jurisdiction of civil court is ousted/ barred, but jurisdiction is barred in ordinary cases and when malice and mala fide [intention] is attributed to the official respondents, then civil courts are the courts of ultim ate jurisdiction and they can decide the matter in accordance with the law ."
In another case titled University of Punjab Vs. Miss Wajuha Arooj (2008 SCMR 1577 ), the august Supreme Court held that:x "Where the action or order passed by the public officer, tribunal or authorities is within the four corners of jurisdiction, the civil court cannot entertain the lis. But where the order passed or act done was void, or without jurisdiction, or mala fide, or in excess of jurisdiction, or otherwise not in accordance with law, or based on fraud, the civil courts would have jurisdiction to interfere with the same."
8. So we confine ourselves to the applicability of ouster clause only .
To test the constitutionality of any provisions of a statute resort to the guideline s of interpretation of statutes is inevitable. In cases where it offends fundamental rights the structure built upon such weak edifice has to fall to the ground.
We are indebted to the principles of interpretation in general and to the four Rules of Statutory Interpretation, these are the literal rule, the golden rule, the mischief rule and the purposive approach, in particular.
Golden rule of interpretation allows judges to depart from a normal meaning of a word in order to avoid an absurd result. According to Maxwell, "The golden rule is that words of statute must prima facie be given their ordinary meaning.
Literal interpretation means that text is to be interpreted according to the "plain meaning" conveyed by its grammatical construction and historical context. The literal meaning is held to correspond to the intention of the authors.
The reason behind purposive approach is to clarify the meaning of the words used in the statutes which might not be that clear. According to Salmond, "Interpretation" is the process by which the court seeks to ascertain the meaning of the legislatu re through the medium of authoritative forms in which it is expressed.
Mischief rule is a principle used for the interpretation of a statute. This principle is used by the courts to determine the intention of the legislators. This principle aims at finding out the mischief and defect in a statute and to implement a remedy for the same. This principle was first applied in an English case in the early 16 century.
9. The courts while applying and interpreting the principle behind ouster clause tries to find out the real intention behind the enactment. These rules of interpretation has thus one thing in common, that is to assist the courts in identifying the proper construction of statutory wording according to the original intention of the legislators not only to avoid absurdity but to elucidate it's true meaning. Trichotomy of powers and independence of judiciary being of prime importance. One feels dwarfed to get into the intricacies in following the philosophies behind interpretation. In myriad of circumstances our courts have interpreted different provisions and declared it void ab initio if it had the ef fect of of fending the fundamental rights.
10. The relevant provisions which are of concern for us are quoted below for ready reference with a brief resume.
Section 7 of the Act lays down following classes of revenue of ficers:- a. The Board of Revenue. b. The Commissioner. c. The Collector/Deputy Commissioner. d. The Assistant Collector of first grade. e. The Assistant Collector of second grade.
The Assistant Collector acts as a trial forum for different matters besides partition cases u/s 135 and his order is appealable before the Collector u/s 161 and then first revision before the Commissioner and second revision before the board of revenue lies. The last being Apex body in revenue hierarchy u/s 5 of the Board of Revenue Act, 1957, can also exercise suo moto powers. The maintainability of second revision has also remained controversial but then settled by our Supreme Court. A Revenue Court for exercising powers under the Act ibid of 1967 is not defined but it may be emphasized that section 4 (22) only defines it for the purpose of law relating to tenancy only .
We need to quote Section 27 which is as under:- "27. (1) Every inquiry under this act shall be deemed to be a "Judicial proceeding" within the meaning of sections 193, 219 and 228 of the Pakistan penal code, 1860 (Act XLV of 1860), and the Revenue officerth holding an inquiry shall be deemed to be a court for the purposes of such inquiry.
(2) Every hearing and decision in such inquiry shall be in public, and the parties or their authorized agents shall have due notice to attend".
The term used" deemed to be judicial proceeding" and shall be deemed to be a Court ", would be interpreted in accordance with dictates of Mubeen us Salam case of PLD 2006 SC 602, when the court thrashed the term "deemed to be civil servant" and held the fiction of deeming clause as ultra vires of Article 240 of the constitution. By this deeming fiction Revenue officer has power to take cognizance of offence of intentionally giving or fabricating false evidence, intentional insult or interruption in proceedings as a Court.
Para No.75 of the judgment ibid is as under:-
75. This Court had an occasion to examine the effect of a deeming clause in the case of Mehreen Zaibun Nisa (ibid), wherein the effect of a deeming clause in light of the earlier judgments was summed up as follows: ---
(i) When a statute contemplates that a state of affairs should be deemed to have existed, it clearly proceeds on the assumption that in fact it did not exist at the relevant time but by a legal fiction we are to assume as if it did exist.
(ii) Where a statute says that you must imagine the state of affairs, it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.
(iii) At the same time, it cannot be denied that the Court has to determine the limits within which and the purposes for which the Legislature has created the fiction.
(iv) When a statute enacts that something shall be deemed to have been done which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to. "
Similarly , the apex court in case titled "Ghazanfar Ali .Vs. Appellate Authority/Additional District Judge, Sahiwal and others" held. Relevant para of the judgment is reproduced below:-
11. With respect to the argument that as per Section 23 of the Ordinance the petitioners are deemed to be public servants within the meaning of Section 21 of the P.P.C., and are thus disqualified from contesting the elections, suffice it to say that this is a deeming clause and it is only by fiction of law that for the purposes of applicability of the P.P.C. and for the object of enabling them to perform certain functions envisaged by the P.P.C. that a legal status has been conferred upon them and that they are considered and deemed to be public servants otherw ise they are not public servants at all. In this respect reliance has been correctly placed by the learned counsel for the respondents upon Kalam Daraz Khan's case, although the case of Rana Muhammad Jamil (supra) does not seem to be relevant.
To fully understand the impact of section 27 it may be necessary to refer Section 80, which provides process for recovery of arrears of land revenue, section 81 provides notice of demand on defaulters, and section 82 empowers him to arrest and detain in prison for not exceeding ten days. While u/s 83 he can recover by distress and sale of uncut crops and moveable properties. Sections 84 to 90 gives him all the powers against immovable property as well. This has rendered section 195 Cr.P.C superfluous in nature. Subsection 2 of subsection 1 clause (b) (c) provides that the term "Court" includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub-Registrar under the [Registration Act, 1908]. Here, revenue court that is subordinate to the executive enjoys equal position despite being part of a separate pillar of the state.
Section 141 of the ibid Act is as follows:-
141. Disposal of questions as to title in the property to be divided. - (1) When there is a question as to title in any property of which partition is sought, the Revenue Officer may decline to grant the application for partition until the question has been determined by a competent Court, or he may himself proceed to determine the question as though he were such a Court.
(2) Where the Revenue Officer does not himself proceed to determine the question of title as a Civil Court, he may for reasons to be recorded by him in this behalf, require a party specified by him to file a suit in a Civil Court, within such period not exceeding ninety days from the date of his order as he may fix, for obtaining a decision regarding the question.
(3) On the filing of a civil suit by the party required so to do within the specified period, the Revenue Officer shall suspend further action on the application for partition till the said civil suit is decided by the Court and a copy of the Court' s order is produced before him.
(4) In case the party so required fails to file a suit within the specified period, the Revenue Officer may proceed with partition and decide the question of title himself.
(5) Where the Revenue Officer himself proceeds to determine the question, the following rules shall apply , namely: -
(a) If the question is one over which a Civil Court has jurisdiction, the Revenue Officer shall proceed as a Revenue court under the law for the time being in force.
(b) If the question is one over which a Civil Court has jurisdiction, the proc edure of the Revenue Officer shall be that applicable to the trial of an original suit by a Civil Court, and he shall record a judgment and a decree containing the particulars required by the Code of Civil Procedure, 1908 (Act V of 1908), to be specified therein.
(c) An appeal shall lie from the decree of the Revenue Officer under clause (b) as through that decree were a decree of a Civil judge in an original suit.
(d) Upon such an appeal being made, the District Court or the High Court, as the case may be, may issue and injunction to the Revenue Officer requiring him to stay proceedings pending the disposal of the appeal.
(e) From the appellate decree of a District Court upon such an appeal, a further appeal shall lie to the High Court, if such further appeal is allowed by the law for them being in force.
Section 27 empowers revenue officers to exercise powers that are vested in a criminal court. Like u/s 80 and 81 of ibid Act he can send to prison any defaulter in arrears of land revenue upto ten days without complying with provisions of the Criminal Procedure Code and to have right to fair trial under Article 10-A. This could be visualized in olden colonial times so as to be ruthless on peasants who were bereft of any fundamental rights.
The different classes of revenue officers are given in section 7 of ibid Act. Deep analysis would reveal that revenue officers and revenue court, are used interchangeably all over the Act but the term revenue court has altogether dif ferent perspective from the term revenue of ficer.
In section 141 of the Act, the revenue officer is empowered to decide a dispute of title between the parties in application for partition filed under section 135 though it is to be only between undisputed joint owners only.
As soon as co-shareship is disputed a revenue officer must withdraw from partition of property as section 42 of Specific Relief Act comes into play. In case any party fails to knock the doors of a civil court the parties would be considered as co-sharers and flimsy objection of title would not be encouraged.
Thus, since ordinary civil and criminal courts are regularly functioning so revenue officers have got no powers to try such cases as a court, being in violation of equality clauses and hence the relevant provisions where the term revenue court is mentioned must inevitably be declared void and ultra vires to the constitution to be substituted for Civil Judge and Judicial Magistrates respectively.
12. Next Section of the Act impugned herein is Section 172 of the Act ibid that excludes jurisdiction of civil court in certain matters which is reproduced below:-
172. Exclusion of jurisdiction of Civil Courts, in matters within the jurisdiction of Revenue Officers. - (1)
Except as otherwise provided by this Act, no Civil Court shall have jurisdiction in any matter which Government, the Board of Revenue, or any Revenue Officer, is empowered by this Act to dispose of, or take cognizance of the matter in which Government, the Board of Revenue, or any Revenue Officer exercises any powers vested in it or him by or under this Act.
(2) Without prejudice to the generality of the provisions of sub-section (1), a Civil Court shall not exercise jurisdiction over any of the following matters, namely: -
(i) Any question as to the limits of any land which has been defined by a Revenue Officer as land to which this Act does or does not apply;
(ii) Any claim to compel the discharge of any duties imposed by this Act or any other enactment for the time being in force on any Revenue Of ficer as such;
(iii) Any claim to the office a village officer, or in respect of any injury caused by exclusion from such office, or to compel the discharge of the duties or division of the emoluments thereof;
(iv) Any notification directing the making or revision of a record-of-rights;
(v) the framing of a record-of-rights or periodical record, or the preparation, signing or attestation of any of the documents included in such a record;
(vi) The correction of any entry in a record-of-rights, periodical record or register of mutations;
(vii) Any notification of the undertaking of the general re-assessment of a District or Tehsil having been sanctioned by Government;
(viii) Any objection to the amount or rate of any assessment of land revenue or the period thereof authorized by Government.
(ix) The claim of any person to be liable for an assessment of land revenu e or of any other revenue as assessed under this Act.
(x) The amount of land revenue to be assessed on any estate or to be paid in respect of any holding under this Act;
(xi) The amount of, or the liability of any person to pay, any other revenue to be assessed under this Act, or any cess, charge or rate to be assessed on an estate or holding under this Act or any other enactment for the time being in force;
(xii) Any claim relating to the allowance to be received by a land owner who has given notice of his refusal to be liable for an assessment, or any claim connected with or arising out of, any proceeding taken in consequence of the refusal of any person to be liable for assessment under this Act;
(xiii) The formation of an estate or determination of its boundaries
(xiv) Any claim to hold free of revenue any land, mills, fisheries or natural products of land or water;
(xv) Any claim connected with, or arising out of, the collection by Government, or the enforcement by Government of any process for the recovery of land revenue or any sum recoverable as any arrear of land revenue;
(xvi) Any claim to set aside, on any ground other than fraud, a sale for the recovery of an arrear of land revenue or any sum recoverable as an arrear of land revenue;
(xvii) The amount of or the liability of any person to pay, any cess, fees, fines, costs or other charge imposed under this Act; (xviii) Any claim for partition of an estate or holding, or any question conn ected with or arising out of, proceedings for partition, not being a question as to title in any of the property of which partition is sought;
(xix) Any question as to the allotment of land on the partition of an estate or holding, or as to the distribution of land subject by established custom to periodical redistribution or as to the distribution of land revenue on the partition of an estate or holding or on a periodical re-distribution of land;
(xx) Any question connected with or arising out of or relating to any proceedings for the determination of boundaries of estates subject to river action under the provisions of this Act;
(xxi) Any claim regarding boundaries fixed under any of the enactments hereby repealed or any other law for the time being in force, or to set aside any order passed by a competent officer under any such law with regard to boundary marks.
13. We are cognizant of the fact that in all those matters as laid down herein above the revenue officers may be empowered to exercise jurisdiction so far as it does not include determination and adjudication of disputes of title. For e.g., clauses (vi) relates to correction of revenue record, while others provides for demarcation proceedings by the method of triangulation/tri-junction, assessment of land revenue, preparing the scheme of partition amongst co-sharers etc. matters squarely lies within their realm and they are not altogether barred to exercise their powers as the limitations have been prescribed in the Act itself. One exception is clause
(vi) wherein the filing of suit for correction of revenue record is mentioned as it amounts to assume and draw a parallel authority in violation of the independence of judiciary and in conflict with express provisions of section 42 of specific Relief Act and section 53 of the ibid Act itself. A question arises, when Section 53 authorizes a party to file a suit for declaration in civil court, in like manner, "If any person considers himself aggrieved by an entry in a record-of-rights or in a periodical record as to any right of which he is in possession, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1877 (Act No. 1 of 1877)", then how the said clause vi of section 172 could exclude its jurisdiction is a question that can be resolved by the theory of reading down into a statute. Clause xviii itself qualifies by addition of words "not being a question as to title in any of the property of which partition is sought". We avail as it can be better described by the doctrine of occupied field and the pith and substance 1999 SCMR 1477. Reference is made to the following para:- "In some cases it has been held that even where Central Act is not exhaustive, repugnancy may arise if it occupies the same field as the Provincial Act. (See Tika Ramji v. State of Uttar Pradesh) (AIR 1956 SC 676) and Deep Chand v State of U.P .(AIR 1959 SC 648).
"The two provisions may conflict with each other where one cannot be obeyed without disobeying the other. Even if obedience to each of them may be possible without disobeying the other, yet two enactments may be inconsistent, e.g. when it takes away a right conferred by the other even though the right be one which might be waived or abandoned without disobeying the statute which conferred the right. See Mangtulal v. Radhashayam (AIR 1953 Pat. 14). So, it may also arise where both laws operate in the same field and the two cannot stand together."
14. Though special courts and tribunals are formed under Article 212 of the Constitution but they have to exercise powers within their allotted spheres and could not intrude beyond that. Similar powers are exercised by a Rent Controller when only relationship of landlord and tenant exists but he as the Judicial Officer presides over the hearing and in case of denial he can frame a preliminary issue in this regard. A Family Court is also presided over by a Judicial Officer in cases of matrimonial dispute between spouses interse. Every special court is presided over by a Judge but not in the ibid Act. It is a remnant of olden colonial times.
This is not the sole reason, we note that in view of the term implied in subsection 1 or he may himself proceed to determine the question as though he were such a court and in subsection 5 (b) of section 141 if the revenue officer continues to proceed with the trial despite dispute of title his order is to be treated as order of Civil Judge and a decree of civil court, made appealable before the District Judge. By inserting such clause legislature was certainly not oblivious that the jurisdiction of revenue officer ceases to exist but fell short of applying the trichotomy of powers principle from the initial stage when question of title was raised in written reply. Just by their own figment of imagination the revenue hierarchy exercise their authority without following due process of law. While enacting this provision legislature is not oblivious that the powers of revenue hierarchy ceases from that point forward but still it authorizes a revenue officer to deliver judgment as a civil court by adopting procedure of the Civil Procedure Code. The stage from where jurisdiction of revenue officer ends is where the jurisdiction of the civil court begins. If the law allows him to continue to exercise such jurisdiction it overlaps and it is not a step in aid of justice as it empowers an officer of the executive branch to exercise powers of judicial organ of the state.
August Supreme Court of Pakistan in a number of judgments struck down such provisions to be in flagrant violation of independence of judiciary as enshrined in the Constitution. Thus declared the laws as ultra vires to the basic features of the constitution i.e. trichotomy of powers and independence of judiciary .
15. In this backdrop of the situation, we seek guidance from judgments rendered by august Supreme Court of Pakistan in well known Sharaf Faridi' s case reported as PLD 1994 SC 105, a hallmark for the independence of Judiciary declaring the courts of executive officers/magistrates against the Constitution and since then a new era under the system of Judicial Magistrates has flourished. Similar directions were issued to include Judicial Officers as members of Services Tribunal in case reported as PLD 2013 SC 501. Concluding para of the ibid judgment is quoted below:- "71. The Service Tribunals both Federal and Provincial perform vital judicial functions by adjudicating upon issues pertaining to the terms and conditions of Civil Servants, therefore, it is imperative that appropriate legislation action be taken post-haste. Consequently, to avoid denial of access to justice to them, the Federal and the Provincial Governments through their respective Law Secretaries are hereby allowed 30 days' time to give effect to the above conclusions/findings and implement this judgment forthwith by making fresh appointments of Chairmen/Members of the Tribunals, following the observations made hereinabove. If no steps are taken within the stipulated time, either through temporary or permanent legislation, the provisions of the legislation which have been declared void under Article 8 of the Constitution shall seize to have effect. As a consequence whereof, the incumbent Chairman/Members of the Tribunals, whose cases are not covered under the above-said proposed provisions, shall also seize to hold said positions, as the case may be. Similarly, independent budgetary allocation for annual expenditures of the Service Tribunals shall be provided for in accordance with the constitution, enabling the Tribunals to function independently".
Out of so many others, we are also benefited and seek further guidance from the following case law reported as 2000 SCMR 567. Relevant para from the judgment is reproduced below:- "19. We are, therefore, of the view that section 22 of the impugned legislation is ultra- vires the Constitution. The Provincial Governor and the Provincial Assembly are not competent to enact any law whereby jurisdiction P of the Supreme Court could be enlarged by providing an appeal to the Supreme Court against the orders of the Cooperatives Judge. We hold, accordingly and to such extent confirm the view taken by the High Court in) P the impugned judgment.
All these appeals are, therefore, allowed and the - impugned judgments of the Lahore High Court are set aside except that the view of the High Court that section 22 of the impugned legislation (Punjab Ordinance XX of 1992 and Punjab Act I of 1993) are ultra vires the Constitution is confirmed and to that extent the appeals are dismissed".
Similarly , the apex court in case reported as PLD 2010 SC 265 held as under:- "171. We have examined the respective contentions of the learned counsel for the parties as well as the vires of the NRO, 2007 on the touchs tone of various Articles of the Constitution, and have come to the conclusion that the NRO, 2007 as a whole, particularly its Sections 2, 6 and 7, is declared void ab initio being ultra vires and violative of Articles 4, 8,. 12, 13, 25, 62(f), 63(1)(h), 63(1)(p), 89, 175, 227 of the Constitution, therefore, it shall be deem ed non est from the day of its promulgation i.e. 5th October 2007 as a consequence whereof all steps taken, actions suffered, and all orders passed by whatever authority , any orders passed by the Courts of law including the orders of discharge and acquittals recorded in favour of accused persons, are also declared never to have existed in the eyes of Jaw and resultantly of no legal effect".
In addition, the judgments reported as 2003 SCMR 370 and PLD 2009 SC 879 almost settled similar matters.
Moreover , this Court in W.P.No. 3098-P/2018 titled "Ali Azim Afridi .Vs. Federation of Pakistan and others " decided on 30.10.2018 held. Relevant extract from the judgment is reproduced as under:- "In view of the judgments/precedents where under the separation of judiciary has been ordered, from the executive and the trichotomy of power has been defined there exist no reasons whatsoever to obtain job from the executive, in this respect. A judge denotes not only every person who is officially designated as a judge, but also every person who is empowered by law to given, in any legal proceedings, civil or criminal definitive judgment, or a judgment which, if not appealed against would be a definite, or a judgment which if confirmed by some other authority would be definite, or who is one of a body of persons, which body of persons is empowered by law to given such judgment. Simply the duty of a judge is to administered law; whereas the legislature is to formulate a law. The moment 25th amendment (Act No.XXXVII of 2018) was introduced, the job of a judgment/decis ion in criminal as well as civil disputes is to be done by a judge and not executive, as has been done by the impugned Regulations, 2018".
15. Parting with the discussion a fortiori we hold and declare as under:- I. All those provisions wherein revenue officer functions as a revenue court are declared to be against article 175 of the constitution, thus non est in law and so be amended accordingly within reasonable time.
II. All the applications for partition of agricultural property only, filed under section 135 of the Act now pending with the revenue officers wherein co shareship is admitted by parties shall continue to be heard and tried by the revenue officers concerned.
III. In any such application for partition before Assistant Collector, wherein written reply is filed and a dispute of title is raised it shall be entrusted to the court of concerned District Judge who shall further entrust the same to the court of Civil Judges for trial in accordance with the Code of Civil Procedure as if these are civil suits.
IV. Where any such dispute of title is involved as raised in the written reply but not adverted to by revenue officer and now subject matter of appeal before collector, it shall be entrusted to concerned District Judge who shall either hear it himself or be entrusted to any other Additional District judge and shall be treated as an appeal.
V. Similarly any first revision before Additional Commissioners and second revisions before the board of revenue wherein dispute of title is involved and not attended to by revenue officers shall be entrusted to the High Court where it shall be heard and decided treating it as writ petition.
VI. All cases that falls within the purview of sections 27, 80, 81, 82, 141 and 172 as discussed above shall stand transferred to the court of Civil Judge and judicial magistrates concerned and shall be entrusted to the Court of learned District judge. In the circumstances when such new occasion arises resort is to be had to section 195 of Criminal Procedure Code before a criminal court.
We allow the instant petition in the above terms. Respondents are expected to implement the judgment according to the terms mentioned above.