WIQAR AHMAD, J. Petitioners being the inhabitants of Reshan Gol District Chitral and Gujjar by caste, claimed to be having the legal rights of grazing their goats, in the local pastures/grazing grounds. Initially , dispute regarding grazing of goats in the local pastures between the residents of Ragain Reshan Gol and the residents of Reshan Gol Upper and Lower had arisen. For settlement of the dispute, a local committee had been constituted by Tehsildar Mastuj comprising of representatives of the area of Reshan and finally it had been held by the respective representatives that in the pastures of Reshan Gol, no one from Gujjar tribe should be allowed to graze their goats.
Petitioners had therefore been prohibited from grazing their goats in the disputed pastures. Accordingly , the Tehsildar Mastaj had also passed an order on 16.09.2013 as per the recommendations of the local representatives, which order had been maintained by the Assistant Commissioner Mastuj by dismissing appeal of the present petitioners on 27.02.2014. Petitioners thereafter filed a declaratory suit by challenging both orders of the revenue hierarchy , which had been returned to them due to lack of jurisdiction vide order dated 30.04.2014 of the learned civil Court. Revision petition filed there-against had also been dismissed by the learned Additional District Judge-II, Chitral on 07.07.2014. Petitioners had then filed an appeal before the Deputy Commissioner Chitral challenging order of the Assistant Commissioner dated 27.02.2014. Their appeal had been disposed of by the Deputy Commissioner Chitral vide his order dated 02.04.2015 by partially modifying order of the lower forum. Feeling aggrieved there-from, petitioners had filed writ petition No. 495-M/ 2015 before this Court, which was allowed vide order dated 10.07.2017 and the official respondents were directed to regulate rights of grazing cattle of the local inhabitants. They were also directed not to allow more than three cattles per family for the purpose of grazing in the State owned pastures. In compliance with orders of this Court, the Assistant Commissioner Mastuj at Booni had passed an order on 07.06.2018, whereby non-local Gujjars/outsiders, had been restrained from grazing their cattles in the pastures of Reshan Gol. For redressal of their grievance, petitioners had again approached the civil Court by filing a declaratory suit, which was summarily rejected vide order dated 02.04.2019 of the learned Civil Judge-VI, Chitral. Their appeal filed against said order was also dismissed by the learned appellate Court vide its order dated 01.07.2019. Petitioners had filed another writ petition No. 937-M/2019 before this Court by challenging Notice dated 15.05.2019 of the official respondents, whereby they were restrained from grazing their goats in the disputed pastures. This Court vide its order dated 24.09.2019 disposed of the writ petition by directing the Assistant Commissioner Mastuj District Upper Chitral to decide grievance of the petitioners strictly in accordance with law and earlier judgment of this Court 'Sated 10.07.2017 rendered in W.P No. 495-M12015. As per direction of this Court, the Assistant Commissioner Mastuj passed an order on 11.12.2019, whereby outsiders were restrained from grazing their goats in the disputed pastures. Feeling aggrieved there from, petitioners have filed the instant constitutional petition with the following prayer; "It is therefore, humbly prayed that on acceptance of this writ petition, order dated 11.12.2019 may kindly be set aside and petitioners (Gujars) may be allowed to profess their profession by grazing their goats in the grazing area in Reshan Gol.
Any other relief/remedy for which they are deemed appropriate may kindly be awarded to meet the ends of justice."
2. Comments were called from respondent s No. 2 & 3, which were accordingly submitted. It was contended therein that respondent No. 3 (Assistant Commissioner Mastuj, District Upper Chitral) being an authorized officer was bound to abide by the judgment of this Court and had accordingly acted.
3. We have heard arguments of learned counsel for the parties, learned Addl:A.G appearing on behalf of the official respondents and perused the record.
4. Certain disputed questions of facts were found lurking on the face of record, therefore learned counsel for petitioners, was asked whether the competing claims of rights of the parties made in the instant constitutional petition may not be raised before a civil Court of competent jurisdiction? He in reply referred to provisions of Settlement of Disputes of Immovable Property (Chitral) Regulation, 1974 (Regulation III of 1974) and contended that jurisdiction of civil Court has been barred under para-10 of Regulation III of 1974. He also added that after the Assistant Commissioner Mastuj had passed an order on 07.06.2018 (impugned), barring the petitioners from grazing their goats, they had approached the competent civil Court at Chitral but it had rejected the plaint due to the above mentioned bar. Further arguments of learned counsel for the parties as well as learned Addl:A.G were also heard on the question of existence, continuance and validity of the forums established under Regulation III of 1974 as well as operation of the bar of jurisdiction contained therein. It needs mention here that the other Regulations i.e. Regulation II of 1974 had not been covering the dispute between the parties as the Land Disputes Enquiry Commission had neither considered nor made any recommendations regarding the current dispute between the parties. It had been quite a recent dispute and had never been subjec t matter of the recommendations of the commission nor had been otherwise settled under said Regulation. Same was the case with Distribution of Property (Chitral) Order , 1980 (President's Order No. 11 of 1980), which has specified scope as provided in para-4 of the Presidential Order to the extent of distribution of properties between the State and former Ruler i.e. ex- Mehtar of Chitral. The only Regulation under which the Assistant Commissioners and other officers on executive side are authorized to adjudicate and jurisdiction of the civil Court is claimed to have been ousted is Regulation III of 1974.
5. It is noticeable at the outset that Regulation III of 1974 had been issued by the President of Pakistan under clause-4 of Article 247 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the "Constitution" ). The Regulation had been published in the Gazette of Pakistan on 4th December , 1974. The scope of Regulation had been given an extended canvas under clause (d) of sub para-2 of Para-3 read with Para-5 thereof, wherein all the disputes, other than those for which the commission had made recommendations, had also been included. It had also been provided in Para-5 that the Provincial Government may appoint as many officers as it deemed fit for the purpose of the mentioned adjudication. Sub-para-2 of Para-5 had stated that an officer appointed under sub-para (1) would decide disputes after hearing the parties and taking such evidence as the parties may like to produce. Sub-para-3 thereof had provided that any person aggrieved by a decision under sub- para (2) may, within sixty days of the decision, submit an appeal to the Provincial Government, which would be heard by an officer appointed by the Provincial Government. In exercise of the powers conferred by sub-para (1) of Para-5 of Regulation III of 1974, the Provincial Government vide Notification No.. 10/31-SOT A-II/HD/72-A dated 08.07.1975 had appointed all the Assistant Commissioners in District Chitral to decide, within their jurisdiction all the disputes specified in paragraph (b), (c) and (d) of clause (2) of Para-3 of .the Regulation III of 1974, beside notifying the Worthy Deputy Commissioner to decide disputes under clause (a) of paragrapher-3 of the Regulation.
Text of said notification is reproduced hereunder for ready reference; "In exercise of the powers conferred by sub-section (1) of section 4 of the Settlement of Disputes of Immovable Property (Chitral) Regulatio n, 1974 (Reg. II of 1974), the Governm ent of the North-W est Frontier Province are pleased to authorize Deputy Commissioner , Chitral to decide disputes referred to in paragraph (a) of clause (2) of section 3 of the said Regulation.
In exercise of the powers conferred by sub-section (1) of section 5 of the Settlement of Disputes of Immovable Property (Chitral) Regulation, 1974 (Reg. III of 1974), the Government of North-W est Frontier Province are pleased to appoint all the Assistant Commissioners in District Chitral to decide within their respective jurisdiction, all disputes specified in paragraph (b), (c) and (d) of clause (2) of section 3 of the said Regulation."
The question before this Court is whether Regulation No. III of 1974 is still in field and the writ petition against the impugned decision of the Assistant Comm issioner can be decided on merits or the competent civil Court will have jurisdiction in respect of adjudication thereof?
6. As stated earlier , the Regulation had been promulgated by the President of Pakistan under the powers vested in him by Clause-4 of Article 247 of the Constitution. Vide the Constitution (Twenty-Fifth Amendment) Act, 2018 (hereinafter referred to as the "Constitutional Amendment Act"), Article 247 was omitted from the Constitution without providing for any savings. As a result thereof, all the Regulations issued under said Article by the President or Governor with the previous assent of the President, stood repealed. It has already been so held by this Court while giving judgment in the case of Gula Jan vs. Jan W ali reported as PLD 2020 Peshawar 25 that; "Perusal of record reveals that the Twenty-fifth Constitutional Amendment was brought by Act No. XXXWI of 2018 (hereinafter referred to as 'amending Act') which was assented by the President of Pakistan on 31st May, 2018. Section 8 of the amending Act had the effect of merging the areas falling in erstwhile FATA into the Province of Khyber Pakhtunkhwa, while Section 9 of the amending Act provided for omitting Article 247 from the Constitution of Islamic Repu blic of Pakistan, 1973 (hereinafter referred to as 'Constitution'). The Worthy Commissioner Malakand Division at Saidu Sharif, Swat has heard the appeal in exercise of the powers vested in him under Para-36 of the Regulation. The Regulation was promulgated by the President of Pakistan on 28th May, 2018 in exercise of the powers vested in him by sub Article 5 of Article 247 of the Constitution. With the repeal of the said Article, without providing for any saving clause, all the Regulations promulgated by the President of Pakistan under sub Article 5 of Article 247 of the Constitution or by the Governor under sub Article 4 of Article 247 of the Constitution or before the enactment of the Constitution, seized to exist.
(Emphasis supplied)
The matter has also been clarified by the Hon'ble Supreme Court of Pakistan in the case of National Commission on Status of women through Chairperson and others vs. Government of Pakistan through Secretary Law and Justice and others reported as PLD 2019 Supreme Court 218. Hon'ble Supreme Court of Pakistan has held in the judgment that with repeal of Article 247 of the Constitution vide the Constitutional Amendment Act, same legal regime had becom e applicable in the areas merged in the province of Khyber Pakhtunkhwa, which had already been prevalent in rest of the province. Relevant part of observation of the august Court is reproduced hereunder for ready reference; "It is manifest from the above principles that classification is only permissible under the law where the same has been made on a rational and reasonable basis and althou gh no singular standard of reasonableness can be deduced for such classification, it must be such that can be justified on an intelligible differentia identifying why the classification/distinction has been made and there must be a rational nexus to the object sought to be achieved by the classification. After the 25th Amendments all the residents of the Province of KPK are similarly placed, there is no rational basis on which the people of FATA can be distinguished from the people of the rest of the province of KPK and thus the application of the FATA Interim Regulation to one part of KPK while the rest of the province enjoys the protection of the provincial laws is absolutely unjustified, grossly discriminatory and in cont ravention of the fundamental right to equal protection. Whether they be residents of FATA on one hand or of Peshawar or Mardan, etc. on the other , they cannot be discriminated against and any classification between them despite being residents of the same province, with no obvious or reasonably deducible distinction between them, will be arbitrary and against the recognized principles of natural justice and the rule of law. Thus, with the merger of FATA in the Province of KPK, by applying the ratio of Azizulla h Memon's case (supra), it becomes expedient to ensure that all the residents of the Province of KPK (including the people of the erstwhile FATA) do not face any discrimination of the basis of their residential location and are accorded equal protection of the law , and their right to fair trial, access to courts and due process are secured.
(Emphasis supplied)
7. It was also argued by learned Addl:A.G that the Provincial Government has promulgated the Khyber Pakhtunkhwa Continuation of laws in the Erstwhile Provincially Administered Tribal Areas Act, 2018 (hereinafter referred to as the "Act"), through which continuity has been given to all the Regulations, which had been holding the field prior to promulgation of the Constitutional Amendment Act and therefore Regulation III of 1974 would be deemed to be in field barring jurisdiction of civil Court and entrusting adjudicatory powers to the administrative officers of the Provincial Government. If we buy such argument of learned Addl:A.G, it would mean that the effects of the Constitutional Amendment Act has been sought to be reversed and nullified through the Act of Provincial Assembly . Executive authority of the Federation has even otherwise been extending to the erstwhile Federally Administered Tribal Areas (hereinafter referred to as "FATA") while executive authority of the province extended to Provincially Administered Tribal Areas (hereinafter referred to as "PATA") as had earlier been provided in the repealed sub-Article (1) of Article 247 of the Constitution. The judicial and legislative authority had however been subject to the extension of laws and jurisdictions, according to the mechanism provided in the repealed Article. If the Act is given an all encompassing effect as pleaded by learned Addl:A.G, it would mean that no change has occurred in the legal regime that existed prior to merger of the areas of PATA in the province of Khyber Pakhtunkhwa and thereafter . Giving the Act such an interpretation would produce ridiculous results. In the former areas of FATA, the new legal regime has come in totality and there is no difference in rest of the area of the province and the newly merged Districts of erstwhile FATA so far as the legal regime applicable therein is concerned. The areas of PATA which had been brought under provincial administration decades ago for the purpose of effecting its early merger with the province, as governance in these areas had been relatively easier being more integrated with settled areas of the province as compared -to the areas of erstwhile FATA. Now that the regular system of administration of justice as prevalent in rest of the country has been put in place in all of the areas of FATA, it would be absurd to keep PATA in the erstwhile tribal pattern and let it governed through Regulations formally issued by the Presidents or Governors. While relying upon judgment in the case of Att.-Gen. v. Prince Ernest Augustus of Hanover [(1957) A.C. 4361, in the leading treatise on the subject of Interpretation of Statue i.e. Maxwell on The Interpretation of Statutes Twelfth Edition, it has been opined that when application of an Act produces absurd consequences, then an interpretation should be advanced through which the Court can avoid such absurdity . Relevant part of the opinion is reproduced hereunder for ready reference; "The same general rule applies where the result of one of two interpretations would be to lead to an absurdity . The leading modern case is Att. Gen. v. Prince Ernest Augustus of Hanover , from which it is clear that the absurdity must be judged of as it would have appeared at the time of the passing of the Act. In 1705, it would not have appeared absurd that all the lineal descendants of the Princess Sophia of Hanover should be deemed "natural born Subjects of this Kingdom," and so the fact that in the mid-twentieth century a provision of the statute 4 & 5 Anne c. 16, literally interpreted, made most royal heads of Europe (including the late Kaiser) British subjects failed to persuade the House of Lords to retreat from a literal interpretation."
Giving the Act a full effect of reincarnating the legal regime as it existed prior to the Constitutional Amendment Act would also be causing discrimination with the citizens of State belonging to the newly merged Districts formerly falling in FATA, as has already been held by the Hon'ble Supreme Court of Pakistan in the case of National Commission on Status of women supra.
8. Now coming to provisions of the Act, Section 3 has been aiming to give continuity to the laws prevalent in the earlier regime. Section 3 of the Act being relevant is reproduced hereunder for ready reference; "3. Continuation of laws. ---(1) Notwithstanding anything contained in any other law, for the time being in force, all the laws, Regulations, rules, notifications and bye-laws, including Actions (in Aid of Civil Power)
Regulation, 2011, or any other legal instrument, applicable in the erstwhile Provincially Administered Tribal Areas and having had the force of law under or in pursuance of Article 247 of the Constitution of Islamic Republic of Pakistan, now omitted vide the Constitution (Twenty-Fifth Amendment) Act, 2018, shall continue to remain in force until altered, repealed or amended by the competent authority .
(2) Notwithstanding anything contain ed in any other law, for the time being in force, Secretary to Government, Home and Tribal Affairs Department may, by notification in the official Gazette, confer policing powers upon member of the Federal and Provincial levies force in the Province of the Khyber Pakhtunkhwa, as and when required."
Section 3 of the Act starts with non -obstante clause providing that notwithstanding anything contained in any other law, for the time being in force, all the laws etc. applicable in the erstwhile PATA and having had the force of law under or in pursuance of Article 247 of the Constitution, shall continue to remain in force until altered, repealed or amended by the competent authority . Through a non-obstante clause, the Provincial Legislature may give overriding effect to a newly enacted law over other Provincial Statutes but it cannot give an overriding effect to a Provincial law over a constitutional provision. A Provincial law cannot override a constitutional provision nor can be deemed to be having the effect of nullifying a constitutional amendment in letter or in spirit. Such an interpretation cannot therefore be placed upon Section 3 of the Act, which would produce an absurd, illogical and unreasonable effect. We can neither say that provisions of the Act have overriding effect over other Articles of the Constitution nor can hold that the Act be given an effect of nullifying the effects of the Constitutional Amendment Act. In such a situation, what the Act can do at the most is that it may give continuity to certain provincial laws, if validly in field and not happens to be ultra-vires to the provisions of the Constitution. To such an extent, the Act may remain functional. So far as giving the Act the effects of nullifying the Constitutional Amendment Act in the area of erstwhile PATA, we have no other choice but to read down its provision in said respect.
9. At the moment, we are concerned with the existence, continuance and operation of Regulation III of 1974 and in its perspective, we have been discussing the effect of the Act. Neither has vires of the Act been questioned in the instant proceedings nor has it been questioned in its entirety before this Court. The Act is an omnibus one and may be having effect on other laws and for said reason, this Court would avoid destroy ing the law by declaring it ultra- vires the Constitution. For saving the Act, the rule of reading down is employed so as to ward off its conflict with operation of constitutional provisions, beside saving the separation and independ ence of judiciary being militated against through indirect operation of a part of the statute where it has been giving continuity to the provisions of Regulation III of 1974 in an omnibus manner . The absurd result that the Act has been producing by giving continuity to Regulation III of 1974, as explained above may never have been intended to be produced by the Provincial Legislature. Had all this situation been placed before the Provincial Legislature, they would definitely have enacted a law which would have been advancing the objects and purposes of enactment of the Constitutional Amendment Act, rather than producing an opposite result. The case in hand therefore qualifies the two tests laid down in the case of Province of Sindh through Chief Secretary and others vs. M.Q.M. through Deputy Convener and others reported as PLD 2014 Supreme Court 531 , in the following words; "However in this context two principle s have to be kept in view . First, that the object of 'reading down' is primarily to save the statute and in doing so the paramount question would be whether in the event of reading down, can the statute remain functional? Second, would the legislature have enacted the law, if that issue had been brought to its notice which is being agitated before the Court?"
Judgment in the case of Province of Sindh supra has also been followed in the subsequen t judgment given in the case of Haroon-ur-Rashid vs. Lahore Development Authority and others reported as 2016 SCMR 931, where the Hon'ble Court had observed; "In the case of Province of Sindh through Chief Secreta ry v. M.Q.M. through Deputy Convener (PLD 2014 SC 531), it was held by this Court that at the time of "reading down" of a statute two principles had to be kept in view; first that the object of "reading down" was primarily to save the statute and in doing so the paramount question would be whether in the event of reading down; could the statute remain functional; second would the legislature have enacted the law if that issue had been brought to its notice which was being agitated before the Court. In this view of the matter , Courts have a duty to construe and apply laws to specific fact situations. Sometimes they have to construe a particular law as meaning nothing and sometimes they have to construe the law as meaning something different from the letter of the law passed by the Parliament. The offending provision or part of it is read down to the extent it is necessary to give it legal effect, or will be severed if it cannot be read down, and the remaining part and provisions of the statute will remain intact."
In this judgment, the rule of reading down was adopted so as to avoid giving the term "employee aggrieved" as used in subsection (1) and the "effected employees" as used in subsection (2) of Section 19 of PEEDA Act, 2006 so as to harmoniously interpret the same and save the provision from being struck down. In earlier part of the judgment, the Hon'ble Court had also observed; "It is settled position in law that while interpreting the law or any provision of any statute all efforts are made by the Court to save the statu te by applying various tools of interpretation one of the rule of harmonious construction being rule of reading down and rule of severance. Rule of reading down, a statutory provision means that a statutory provision is generally read and or toned or narrowed down, applying restrictive meaning in its application. Rule of severance means to trim down or slice away invalid portion which is otherwise generally considered to be part of statute or provision, purpose is to save as much as to bring the statute or prov ision within the ambit of constitution and law as declared by the superior Courts and to protect it from being declared ultra vires or unconstitutional as a whole. If such trimming or slicing away is possible then the Court declare such part to be beyond the legislative competence and leave the reminder valid and operative."
10. When we read down Section 3 of the Act, we would naturally come to the conclusion that those Regulations which had been issued by the President of Pakistan or Governor of the Provincial Government of Khyber Pakhtunkhwa with the previous approval of the President under the repealed Article 247 of the Constitution had lost its continuity and operation with repeal of Article 247 of the Constitution by way of the Constitutional Amendment Act. Had the Parliament, while performing its constituent function at the time of enacting the Constitutional Amendment Act, intended to give continuity to the erstwhile regime, they would have provided for a saving clause while repealing Article 247 of the Constitution. By not doing so their intention had been quite clear that they wanted to extend regular legal regime as prevalent in rest of the country to the newly merged Districts forming part of FATA and PATA and they wanted to do away with the tribal status of all these areas and wanted to include them in the main-stream.
11. Here in the case in hand also, the instrumentality of reading down is being employed for the purpose of avoiding to strike down the statute in its entirety . The statute may remain functional in giving continuity to those laws which have not been in conflict of constitutional provisions or militate against the separation and independence of judiciary . The other conditions for reading down have also been forthcoming in the case in hand, as discussed in earlier part of this judgment. We can therefore safely read down Section 3 of the Act to the extent it gives continuity to Regulation III of 1974.
12. There remains no doubt that the Regulation had not been in field after promulgation of the Constitutional Amendment Act. Neither can the Assistant Commissioner exercise jurisdiction there-under nor can the bar of jurisdiction of civil Court contained in Para-10 of the Regulation III of 1974 be considered as ef fective anymore.
13. Regulation No. III of 1974 stood repealed but even if it is claimed to have been reincarnated, the adjudicatory powers of administrative officers like Assistant Commissioner as well as notified officer of the Home Department as appellate forum, cannot be allowed to be exercised for determination of civil rights of the parties. Same would be militating against the doctrine of separat ion of judiciary from the executive. By now Article 10-A has also been added to the Constitution through Eighteenth Amendment Act 2010, which required that for the determination of his civil rights and obligations as well as while facing a criminal charge, a person shall be entitled to a fair trial and due process. Said Article being relevant is reproduced hereunder for ready reference; "Right to fair trial 10A. For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process."
In the case of Al-Jehad Trust through Raeesul Mu iahideen Habib-ul-W ahabb-ul-Khairi and others vs. Federation of Pakistan and others, reported as PLD 1996 Supreme Court 324, Hon'ble Supreme Court of Pakistan had observed even before insertion of Article 10-A in the Constitution that the right to have access to justice though an independent judiciary was a fundamental right, and that without an independent judiciary such a right would be meaningless and would have no efficacy and beneficial value for the public at large. In the case of Sh. Riaz-ul-Haq and another vs. Fede ration of Pakistan Through Ministry of Law and others reported as PLD 2013 Supreme court 501, it had been observed that determination of a question of rights could not be left at the discretion of persons who had not been having knowledge and experience in the legal field. Relevant part of observation of the august Court is reproduced hereunder for ready reference; "The Principle of separation and indepe ndence of judiciary as envisaged in Article 175 of the Constitution is also applicable to the lower judiciary as it is the part of the judicial hierarchy . Thus, its separation and independence has to be secured and preserved as that of superior judiciary . In terms of Article 175 read with Article 203 of the Constitution, the lower judiciary should be separated from the Executive and the High Court shall supervise and contro l all courts subordinate to it. Reference may be made to the case of Government of Sindh v. Sharaf Farid i (PLD 1994 SC 105). In the case of Dr. Mobashir Hassan v.
Federation of Pakistan (PLD 2010 SC 265) it has been held that the Legislature is competent to legislate but such legislation would not be sustaina ble if it is contrary to the principle of independence of judiciary as mentioned in Article 2A of the Constitution, which provides that independe nce of judiciary shall be fully secured read with Article 175 of the Constitution, which lays down a scheme for the establishment of the Courts, including the superior Courts and such other Courts as may be established by law. As it has been held that Service Tribunal discharges judicial functions, thus falls within the definition of a "Court' in view of the above discussion, therefore, the Tribunals have to be separated from Executive following the principle of independence of judiciary in view of Article 175(3) of the Constitution."
It had further been observed in said judgment; "In the case of Messrs Ranyal Textiles v. Sindh Labou r Court (PLD 2010 Karachi 27) it has been observed that under the judicial system as established by the Constitution of the Islamic Republic of Pakistan, there are Courts and there are Tribunals: However , the Tribunals are only limited to the Tribunals specified in the Constitution such as Election Tribunal [Article 225], Administrative Tribunal [Article 212] and Tribunal relating to military affairs [Article 199(5)]. Beside these Tribunals, whenever judicial power is vested in a forum, whatever be its designation, be it called a Court, be it called a Tribunal or be it called a Commission, for all legal intents and purposes it is a Court and therefore has to be manned, controlled and regulated in accordance with the established judicial principles and the law relating to manning, regulation and control of Courts in Pakistan. Therefore, it was held that the Labour Appellate Tribunal, legally speaking, through denominated as a T ribunal, is a Court: nothing more, nothing less.
The perusal of above case-law makes it abundantly clear that a tribunal is not always function as a 'Court', nor its action is always judicial; however , the determining factor is the nature of the dispute to be resolved by the Tribunal. If the Tribunal has to determine a dispute relating to a right or liability , recognized by the Constitution or law and is under an obligation to discover the relevant facts, in the presence of the parties, in the light of the evidence produced by them, it acts judicially . Besides, whenever judicial power is vested in a forum, be it called a Court or Tribunal, for all legal intents and purposes it is a Court. Further , such Tribunals have to be manned, controlled and regulated in accordance with the established judicial principles."
Further reliance in this respect may also be placed on judgments of the Hon'ble Supreme Court of Pakistan given in the case of Al- Jehad Trust through Raeesul Mujahideen Habib-ul-W ahabb-ul-Khairi and others vs. Federation of Pakistan and others reported as PLD 1997 Supreme Court 84, as well as the case of All Pakistan Newspapers Society and others vs. Federation of Pakistan and others reported as PLD 2012 Supreme Court 1.
14. Exclusion of jurisdiction of a civil Court in the matter of adjudicating upon a civil right (rights of grazing goats in the case in hand) cannot be lightly inferred. Provision of a repealed Regulation cannot be treated reincarnated for ousting established jurisdiction of a civil Court. "The proper tribunals for the determination of legal disputes", as explained in Maxwell on Interpretation of Statutes Twelfth Edition, "in this country are the Courts and they are the only tribunals, which by training and experience and assisted by properly qualified advocates are fitted for the task." "Any one bred in the tradition of the law," said Viscount Simonds, "is likely to regard with little sympathy legislative provisions for ousting the jurisdiction of the Court, whether in order that the subject may be deprived altogether of remedy or in order that his grievance may be remitted to some tribunal." "It is," he said in another case, "a principle not by any means to be whittled down that the subject's recourse to Her Majesty's Courts for the determination of his rights is not to be excluded except by clear words. This is, as McNair J. called it in Francis v. Yiewsley and West Drayton Urban District Council, a 'fundamental rule' from which I would not for my part sanction any departure."
15. Hon'ble Supreme Court of Pakistan while giving its judgment in the case of Abbasia Cooperative Bank (Now Punjab Provincial Cooperative Bank Ltd.) through Manager and another vs. Hakeem Rafiz Muhammad Ghaus and 5 others reported as PLD 1997 Supreme Court 3 , had also observed; "It is a well-settled principle of interpretation that the provision containe d in a statute ousting the jurisdiction of Courts of general jurisdiction is to be construed very strictly and unless the case falls within the letter and spirit of the barring provision, it should not be given effect to.
It is also well-settled law that where the jurisdiction of the Civil Court to exam ine the validity of an action or an order of executive authority or a special tribunal is challenged on the ground of ouster of jurisdiction of the Civil Court, it must be shown (a) that the authority or the tribunal was validly constituted under the Act;
(b) that the order passed or the action taken by the authority or tribunal was not mala fide; (c) that the order passed or action taken was such which could be passed or taken under the law which conferred exclusive jurisdiction on the authority or tribunal; and (d) that in passing the order or taking the action, the principles of natural justice were not violated. Unless all the conditions mentioned above are satisfied, the order or action of the authority or the tribunal would not be immune from being challenged before a Civil Court. As a necessary corollary , it follows that where the authority or the tribunal acts in violation of the provisions of the statutes which confe rred jurisdiction on it or the action or order is in excess or lack of jurisdiction or mala fide or passed in violation of the principles of natural justice, such an order could be challenged before the Civil Court in spite of a provision in the statute barring the jurisdiction of Civil Court."
Further reliance in this respect may be placed on observations of the Hon'ble Supreme Court of Pakistan given in the judgments reported as PLD 1963 Supreme Court 382, PLD 1965 Supreme Court 671 and PLD 1990 Supreme Court 1051.
16. A number of factual controversies regarding rights of grazing of the parties require adjudication prior to issuance of any order in favour of one or the other party , such factual controversies cannot be determined without recording of evidence. Hon'ble Supreme Court of Pakistan in its judgment given in the matter of Suo Motu Case No.13 of 2007, H.R.C. Nos. 2722, 3181, 3774 of 2007 and 1718 of 2006, decided on 10th November , 2008 reported as PLD 2009 Supreme Court 217 , has held in this respect as follows; "From above resume, it is, abundantly clear that some of the applicants/ petitioners have sold land to M/s. Bahria Town and have received sufficient amount towards sale price and have also handed over possession. In many cases mutations have been effected in the name of M/s. Bahria Town in lieu of sale made by villagers/applicants, which according to learned counsel for the petitioners/ applicants are fake and fabricated which raises factual controversy and cannot be resolved without recording of evidence.
These are the reasons of our short order of even date whereby Suo Motu Case No.13 of 2007, Human Rights Cases No.2716 of 2006, 2722, 3181 and 3774 of 2007 were dismissed and the applicants/ aggrieved party were directed to seek remedy before appropriate forum as the entire controversy raised in these matters is factual in nature which cannot be resolved under Article 184(3) of the Constitution of Islamic "Republic of Pakistan, 1973."
Reliance in this respect may also be placed on judgment of Hon'ble Supreme Court of Pakistan given in the case of Messrs Ahmad Developers vs. Muhammad Saleh and others reported as 2010 SCMR 1057 .
17. In light of what has been discussed above, the instant constitutional petition is held to be non-maintainable due to availability of alternate remedy before civil Court and same is accordingly dismissed. Petitioners shall however be at liberty to approach the civil Court afresh. Any earlier order of civil Court rejecting or returning a plaint in the earlier situation shall not be a bar in their way due to the change of law and declaration of law made through the instant judgment. It is however clarified that the powers of regulating grazing rights may be exercised by competent officers of the local administration in respect of State land, however they cannot exercise adjudicatory and judicial functions under Regulation III of 1974.