WIQAR AHMAD, J. This order is directed to dispose of the review petition filed by petitioners before the erstwhile Federally Administered Tribal Areas Tribunal, Peshawar (hereinafter referred to as "the Tribunal"). On merger of the tribal territory into the Province of Khyber Pakhtunkhwa, in pursuance to Twenty-fifth Constitutional Amendment to the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as "the Constitution"), the review petition pending before the Tribunal was transferred to this Court along with other cases. It has been registered by the of fice as W rit Petition No 61 1-M of 2019, but no judicial order was available on record for its conversion.
2. Petitioners have contended in their petition that they had submitted an application before the. Assistant Political Agent Bajaur Agency (hereinafter referred to as "APA") on 02.02.2016 for restoration of possession of the property in dispute, under the relevant provision of the Frontier Crimes Regulation, 1901 (hereinafter referred to as "FCR"). The matter was referred to a council of Ulama for decision under section 8 of the erstwhile regime of FCR. The council of elders submitted a unanimous verdict. The Court of APA Khar Bajaur Agency passed an order on the basis of said award on 02.02.2016, which is also reproduced hereunder for ready reference; "I personally went through the case file, unanimous verdict of the nominated Jirga and found no illegality/irregularity in it to interfere hence accepted. The suit property is hereby decreed to sahibzadgan/respondents on the basis of their genuine right. And being baseless, against the facts and badly time-barred, the claim of plaintiffs is hereby dismissed once for all. Possession of the property decreed to respondents is hereby handed over to them along with all sorts of proprietary rights and plaintiffs/Qaum Mir Khan Khel are hereby directed to remain peaceful and not to interfere in the property decreed to respondents, otherwise, they will be proceeded 'against per law with imposition of heavy fine upon them. As unanimously recommended by the Jirga. Plaintiffs/accused party is hereby fined heavily/equivalent to losses and damages caused by them to respondents and their families and for the insult of their status, after assessment/ascertaining of the same through a committee to be constituted for the purpose, without any fail, otherwise, they will be proceeded against per law. The punishments so far been sentenced to plaintiff party is according to law and within the scope of justice, therefore, the same is hereby upheld and order passed accordingly."
Petitioners filed an appeal against said order before the Commissioner FCR Malakand, which was partially allowed vide order dated 25.08.2016 of the said forum by setting aside order dated 02.06 .2016 of APA Bajaur . The case was remanded to trial Court for constitution of a fresh Jirga with consent of both the parties.
3. After remand, the APA Bajaur vide his order dated 04.01.2017 again accepted verdict of the Jirga members and dismissed application of the petitioners by holding that heavy fine of Rs. 6 million would be levied on them, in case of non compliance. Feeling aggrieved from said order of APA, petitioners have filed an appeal before the Commissioner FCR Malakand Division. Said appeal was allowed by Commissioner FCR vide his order dated 09.03.2017 by setting aside order of APA Bajaur and the case was remanded to trial Court for constitution of a fresh council of elders with consent of the parties and decision on merits. Respondents have then invoked the Revisional jurisdiction of the Tribunal by filing a revision petition against the above mentioned order of Commissioner FCR, which was allowed vide impugned judgment dated 21.12.2017 of the Tribunal. Petitioners then filed a review petition against the judgment, which was transferred to this Court on promulgation of the Twenty-fifth Constitutional Amendment.
4. I have heard arguments of learned counsel for the parties and perused the record.
5. Perusal of record reveals that the instant petition has though been registered as writ petition, by the office, but no order for its conversion has been available on record. The petition in hand is therefore treated as a review petition filed under section 55-A of the repealed FCR. The review petition had been filed on 23 .02.2018 during which time the repealed FCR was having the field. FCR had been repealed by promulgation of the erstwhile FATA Interim Governance Regulation 2018, which also stood repealed as a result of promulgation of the Twenty-fifth Constitutional Amendment. Section 6 of the General Clauses Act, 1897 provided for effect of repeal of a law. Said section being relevant is reproduced hereunder for ready reference;
6. Effect of reveal -- Where this Act, or any (Central Act) or Regulation made after the comme ncement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not- Revive anything not in force or existing at the time at which the repeal takes effect, or Affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder , or Affect any right, privilege, obligation or liability acquired, accrued or incurrent under any enactment so repealed, or Affect any penalty , forfeiture or punis hment incurred in respect of any offence committed against any enactment so repealed, or Affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability , penalty , forfeiture or punishment as aforesaid.
An order passed under the repealed law shall not lose ground merely because of the repeal, unless so provided expressly in the new statute. Similarly a remedy available against an order passed under the repealed law shall also be deemed continuing for the purpose of the order.
6. The question of effect of repeal had earlier come up before Hon'ble Supreme Court of Pakistan in the case of "Province of East Pakistan v/s Sharafatullah" reported as "PLD 1970 S.C 514", and was settled in the following words; "In other words liabilities that are fixed or rights that have been obtained by the operation of law upon facts or events for or perhaps it should be said against which the existing law provided are not to be disturbed by a general law governing future rights liabilities unless the law so intends."
Similarly in the case of "Income Tax Officer, Central Circle-II Karachi and another v/s Cement Agencies Limited" reported as "PLD 1969 Supreme Court 322" Hon'ble Apex Court had also recorded similar observations, which are reproduced hereunder for ready reference; The view that I have taken receives support from the decision of this Court in Civil Miscl. Petition No. K-21 of 1968 (Works Co-operative Housing Society and another v. The Karachi Development Authority) decided on the 20th January 1969. In this case my Lord the Chief Justice, in his judgment, referred to the decision of the Privy Council in the case of Lemn v. Mitchel (L R 1912 A C 400). The Privy Council observed that even a legislative measure like an Ordinance expressly given retroactive effective could not operate so as to annul a valid and existing judgment as between parties whose rights had been duly determined and according to the law which existed before the new Ordinance was passed. To the same effect is the decision in the case of Eyre v. Wynn Mackenzie ((1896) 1 Ch. D 135). The decision of the Privy Council in the case of Commissioner of Income-tax v. Tribune Trust (PLD 1947 PC 247) clearly supports the contention of the respondent."
Further reliance in this respect, may be placed on judgment given in the case of "Government of Punjab v/s Zia Ullah Khan" reported 1992 SCMR 602, the case of "Gul Hassan & Co. v/s Allied Bank of Pakistan" reported as 1996 SCMR 237, the case of "Hakim Ali Zardari v/s The State" reported as PLD 1998 Supreme Court 1, the case of "Taxation Officer/Deputy Commissioner of Income Tax, Lahore v/s Messrs Rupafil Ltd. and others" reported as "2018 SCMR 1131", the case of "Muabarak Shah v/s The State" reported as 1990 PCr.LJ 1796 and the case of "Sher Muhammad alias Shera v/s The State" reported as 1990 PLD Karachi 271. The question stands well settled that despite repeal of a statute a remedy provide d against an order passed under the statute may be continued to be dealt with under the repealed law. The instant review petition is therefore being dealt with, under the scope of review provided by section 55-AA of the repealed FCR.
7. Taking the instant review petition for its disposal on merit, it is evident that commissioner FCR had remanded the case for constitution of another Jirga and decision of the matter afresh, by then existing forum of APA, vide its order dated 09.03.2017. Concluding part of the judgment is reproduced hereunder for ready reference; "I have given my anxious considerations to the arguments of both the sides and carefully studied the case file. During minute perusal of the case it become quite clear that the appellants have submitted various objection applications to this court as well as to the lower court for changing the Jirga members, constituted by the lower court which is available on page No. 120, 123 & 127 of the lower court file, but no heed was paid to these objection applications and the newly constituted Jirga members were completely taken from the previous Quomi Jirga.
Keeping in view the above I am of the opinion that council of elders was not constituted in accordance with the provision of FCR, 1901, therefore, the impugned order dated 14.01.2017 of the lower Court of APA/ADM, Khar is set-aside and the appeal in hand is accepted to the extent that the case is remanded to the trial Court, who shall with consent of the parties, nominate fresh council of elders and will direct them to examine the record thoroughly , collect evidences and also make inquiries from the local elders and submit their detail award to the lower court of APA/ADM for further action as explained in the FCR, 1901."
The Tribunal, while allowing the revision petition filed before it by respondents had set aside order of remand passed by the Commissioner FCR and decided the case itself in its revisional jurisdiction, without having benefits of findings of the appellate forum, vis-a-vis merits of the case. Concluding Para of judgment of Tribunal is also reproduced hereunder for ready reference; "We have heard the arguments of learned counsel for parties, and examined the entire record with their valuable assistance. It transpires from record that the council of elders was nominated in accordance with letter & spirit of section 8 of FCR proper order of reference with issues framed therein is on the record. The council of elders conducted a proper enqiury , and thereafter submitted a very detailed and comprehensive majority award which was accepted by the trial court and accordingly and order/judgment was passed by APA/ADM. The trial Court had followed the provision of section 8 FCR. So illegality or substantial procedural irregularity has been noted in the trial court's proceedings. The learned Commissioner FCR remanded the case on the sole ground that the respondents had filed objection application against the Jirga in the trial Court but no head was given to the same by the trial Court. The record reveals that the first application followed by other applications was filed on 08.12.2016 when the Jirga had almost completed its proceedings and was about to submit the same to the court. So the said application was not in time. Moreover the said application contains a vague allegation that the "Jirga" is siding with other party . Such vague objection at a belated stage does not carry weight. In view of the above discussion the subject revision petition is allowed and resultantly this impugned order/j udgment dated 09.03.2017 of worth Commissioner FCR is set aside, while order/judgment dated 04.01.2 017 of learned trial Court is upheld."
Judgment of remand of the Commissioner FCR had been based upon valid reasons because the objections, filed by the petitioners vide their application dated 08.12.2016 before APA Bajaur Agency as well as those filed vide their application dated 13.12.2016 before the Commissioner Malakand Division and forwarded to the APA Bajaur vide letter of the Commissioner dated 15.12.2016 had neither been decided separately , nor in the final judgment of the APA. Objections raised through the abov e-mentioned applications were regarding conduct of the Jirga members, and same may or may not have been true in its contents, but these objections at least deserved the attention of the adjudicating forum and should have been decided by giving valid reasons. When the commissioner FCR had found that no heed had been .paid, by the adjudicating forum below , he had remanded the case to the concerned forum.
The Tribunal have entertained and set aside the remand order of the commissioner , without indicating that the applications had earlier been decided by the APA. The Tribunal itself proceeded to reject those objections. It had further proceeded and upheld decision of the APA on merits, as well. Had the Tribunal been of the opinion that the remand order was not justified even then the matter should have been sent, back to the commissioner FCR for decision of the appeal, on its merits. By not doing so, the Tribunal have deprived the parties from decision of an important forum of appeal, in the erstwhile regime of FCR besides divesting itself of having the benefit of an appellate order . The error and mistake occurring in the impugned order of the Tribunal, have not been lying far away , and is easily discoverable by reading the very judgment dated 21.12.2017 of the Tribunal. Such an error has constituted a suf ficient reason for allowing the review in hand.
8. Situation has however changed and all the forums existing under the erstwhile FCR have no more been existing and stood substituted by regular civil courts. Even while allowing the review petition the matter cannot be sent back to the Commissioner FCR which office has no more been in field. In the newly emerging situation, learned counsel for petitioners has rightly made a request for withdrawal of his application dated 02.02.2016 initially filed before APA whereby he had submitted his claim before the then existing adjudicating forum available under the erstwhile regime of FCR. He had however prayed that he may be allowed to institute a fresh suit before the competent civil Courts established in the area. His verbal request may be entertained, in peculiar circumstances of the case. The application filed before the then APA has been a simple application, which is not capable of being proceeded as a plaint before a civil Court. Even if it is placed before a civil Court for adjudication, same is bound to fail for having formal defects. As such sufficient ground exists to allow the petitioners to withdraw their application dated 02.02.2016 of APA Khar Bajaur , with permission to file a fresh suit, before the competent civil Court for redressal of their grievances. Accordingly order dated 21.12.2017 of the Tribunal is set aside, by allowing the instant review application. Petitioners are allowed to withdraw their application dated 02.02.2016 filed before the APA, with permission to file a fresh suit before the competent civil court of law. They are not burdened with costs for the reason that the withdrawal has been necessitated by the factum of merger of the area of Bajaur with province of the Khyber Pakhtunkhwa, but the learned civil Court, while passing the final judgment in the matter shall assess the costs incurred by the successful party on the instant litigation and award the same, unless very strong reasons are found existing for non-awarding of costs of litigation. The instant petition is accordingly disposed of. Office shall also correct entries of the instant petition in the record and same shall be registered as a review petition. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.