MUHAMMAD IJAZ KHAN, J. At the very outset, the learned counsel for the petitioners requests that since the order and judgment passed by the learned Ombudsperson Khyber Pakhtunkhwa is an appealable order under section 8 of The Khyber Pakhtunkhwa Enforcement of Women's Property Rights Act, 2019 (Act No. XLIV of 2019) (hereinafter referred to as "The Act of 2019"), therefore, the same may be converted into an appeal. Accordingly, his request is allowed and the office is directed to treat the instant writ petition as an appeal and enter the same in the relevant register.
2. Through the instant appeal, the appellants have challenged the order and judgment of the learned Ombudsperson Khyber Pakhtunkhwa dated 02.01.2023 whereby the complaint filed by the respondent/complainant namely Mst. Muhammadia Bibi was accepted and the Deputy Commissioner Dir Lower was directed to initiate proceedings as per law, separate the share of the respondent/complainant and hand over its possession within 45 days with proper official intimation to the office of Ombudsperson after execution of the instant order.
3. Precisely the facts of the case are that respondent No. 1 namely Mst. Muhammadia Bibi filed a complaint against 77 persons/legal heirs before the Ombudsperson Khyber Pakhtunkhwa praying therein that the complainant being one of the legal heirs of late Gul Bacha may be granted her Shari share out of the legacy left by him which is comprising of movable and immovable properties and the other property sold by the respondents therein. After the receipt of the complaint, the respondents now the appellants were summoned who put their appearance and submitted their detailed reply whereby the claim of the respondent/complainant was seriously controverted whereby they categorically denied that the subject properties (as mentioned in the complaint) are not the legacy of late Bacha Gul as he had disposed off his properties in his lifetime and even the jurisdiction of the Ombudsperson was also challenged of the ground that for the .same and identical relief the respondent/complainant had already filed a civil suit on 25.01.2020 before the Civil Judge Dir. The record further shows that the report of Deputy Commissioner was also obtained whereby the share of respondent/complainant was also determined. After hearing arguments of both the parties, the learned Ombudsperson Khyber Pakhtunkhwa accepted the complaint of the respondent/complainant vide the order and judgment dated 02.01.2023. The aforesaid order and judgment has now been challenged by the present appellants before this Court through the instant appeal.
4. Arguments of learned counsel for the parties were heard in considerable detail and the record persued with their able assistance.
5. The record appended with this appeal would show that the instant complaint has been filed by the respondent/complainant on 21.O9.2022 whereas before filing of the instant complaint the respondent/complainant had already filed a civil suit before the Civil Judge/Illaqa Qazi, Lal Qila Maidan Dir Lower on 25.01.2020. The contents and crux of the complaint as well as of the civil suit would show that the respondent/complainant is seeking her entitlement and separation of her share in the legacy of her predecessor-in-interest namely Gul Bacha, therefore, for the same relief she has approached to two different fora, however, the suit was filed before the civil Court earlier in time then the instant complaint. The Court was informed that the instant suit is pending adjudication before the civil Court and the same is at the stage of recording of evidence. The Court was further informed that the respondent/complainant namely Mst. Muhammadia Bibi to her extent has withdrawn her suit against the present appellants, however, since there is another plaintiff namely Mst. Azmat Jehan, therefore, the suit is proceeding for the determination of the rights of contesting legal heirs.
6. In view of the above facts and circumstances the moot, question before this Court is that whether the Ombudsperson Khyber Pakhtunkhawa was having any jurisdiction to entertain the instant complaint when a civil suit before the competent Court of law was already pending between the legal heirs of their common predecessor and when that suit too has filed by the respondent/complainant herself. It may be noted that as per the reply to the instant complaint filed by appellants as well as the written statement filed by the appellants then defendants in the civil suit would show that the appellants have seriously challenged and controverted the claims of the respondent/complainant on the legal and factual grounds including the non-availability of the legacy and that the subject property is their purchase property(ies) which issues could not be resolved without recording of pro and contra evidence, therefore, the learned Ombudsperson Khyber Pakhtunkhwa should have not been entertained and adjudicated upon the complaint when it was brought to her notice that a civil suit amongst the legal heirs with respect to the legacy is pending adjudication what to speak of issuing an effective order which is impugned before this Court.
7. It is also relevant to mention here that as per the theme and scheme under The Act of 2019 even in absence of a pending suit if a complaint is filed before the learned Ombudsperson and when the same requires a detailed probe, investigation, recording of evidence or intricate adjudication then the learned Ombudsperson ought to formulate a reference and submit the same to the civil Court of competent jurisdiction, but in the instant case as stated hereinabove that before filing of the complaint the civil suit was pending adjudication between the parties with respect to the same relief before the civil Court which was filed by none but by the present respondent/complainant herself and over and above when the present appellants submitted their reply to the instant complaint whereby they seriously challenged the stance of the respondent/complainant qua the subject property being a legacy then the learned Ombudsperson should have not been assumed its jurisdiction and should have referred the matter and the parties to the civil Court, but as against this, she proceeded with the complaint and passed an effective order whereby the Deputy Commissioner was directed to separate the share of the respondent/complainant without waiting for the outcome of the suit already pending before the civil Court and thus the Worthy Ombudsperson has sit over the proceedings .of a civil Court rather she through her impugned order has rendered those proceedings as redundant.
8. It may be noted that the impugned assumption of jurisdiction and impugned order of the Worthy Ombudsperson could not legally sustainable as even under normal circumstances plenary jurisdiction of the civil Court is standing on much higher footings as compared to any other Court or authority or office including any proceedings before the Ombudsperson. It may be clarified that the jurisdiction of Ombudsperson is limited only to those cases involving the rights of the women which are not contesting and which does not require any detailed probe, investigation or recording of evidence. It will be appropriate to produce the relevant provisions of the Act of 2019;- Section 2 (a) "complainant" means a woman who files a complaint or for whom proceedings are initiated in respect of the title or possession of her property."
4. Complaint to the Ombudsperson in case no proceedings in a Court of law are pending---(1)
Any woman deprived of ownership or possession of her property by any means, may file a complaint to the Ombudsperson if no proceedings in a Court of law are pending regarding that property:- Provided that the Ombudsperson, on its own motion or on a complaint filed by any person including a non-governmental organization, may also initiate action under sub-, section (1) in relation to the ownership or possession of a woman's property, if no proceedings are pending in a Court in respect of that property.
(2) .................................................................. ....
(3) .................................................................. ....
(4) ............................................................... .......
(5) ......................................................................
6. Reference to the Court---(1) Notwithstanding anything contained in sections 4 and 5, if upon preliminary assessment, or upon receiving the report of the Deputy Commissioner or upon conducting summary enquiries by the Ombudsperson himself, he comes to the conclusion that the matter requires in-depth enquiry, investigation or detailed recording of evidence or intricate adjudication, he shall forumulate as reference alone with all the reports and material collected and submit the same to the Civil Court of competent jurisdiction preferably within sixty days of receipt of the complaint under subsection (1) of section 4.
(2) .................................................................. ....
The aforesaid provisions of the Act of 2019 if are read combinedly it would un-mistakenly show that a woman who has been deprived of ownership of possession of her property may file a complaint to the Ombudsperson if no proceedings in a Court of law are pending regarding that property and even the Ombudsperson on its own motion can initiate the proceedings against any person if she is of the opinion that a woman has been deprived of her property and for that she is required to make a preliminary assessm ent of the complaint when the same is presented to her. It also requires that if probe or investigation are essential then she may summon the record and can issue notices to the adversary, however, there is a specific bar on the powers of Ombudsperson which is duly envisaged in section 6 of The Act of 2019. A plain reading of the aforesaid section would show that where in-depth enquiry or investigation or detailed recording of evidence is required then she shall formulate a reference along with all the reports and material collected and shall submit the same to the civil Court of a competent jurisdiction. Section 6 of the Act of 2019 is also non-abstante clause and as such it has a superimposing effect over the remaining provisions of The Act of 2019, which in other words would mean that the Ombudsperson is bound to refer the parties to the civil Court through a reference where recording of evidence for the settlement of the issues between the parties is essential, but in the instant case she neither opted for the aforesaid reference nor pay any respect or regard to the proceedings of the civil Court where exactly the same controversy is pending adjudication and that too before filing of the instant complaint, therefore, the impugned order of the Ombudsperson Khyber Pakhtunkhwa could not legally sustain. As stated hereinabove that the language of section 4 read with section 6 of The Act of 2019 is so clear that no other meaning or interpretation could be given to them to the effect that a complaint could be filed before the Ombudsperson if no proceedings in a Court of law are pending and that the matter in the complaint is to be referred to the civil Court if it requires in-depth probe, investigation and recording of evidence, however, such clear bar contained in The Act of 2019 was bravely and boldly floated through the impugned proceedings-cum-order of the Worthy Ombudsperson. It is settled law that when the language of the statue is clear, then plain and ordinary meaning is to be given and the same is to be read as it appears on the face of it. In the case of "Government of Khyber Pakhtunkhwa through Secretary Public Health Engineering, Peshawar and others v. Abdul Manan and others" reported as 2021 SCMR 1871, the Apex Court has held that when the intent of the legislature is manifestly clear from the wording of the statute, the rules of interpretation require that such law be 'interpreted as it is by assigning the ordinary English language and usage to the words used, unless it causes grave injustice which may be irremediable or leads to absurd situations which could not have been intended by the legislature.
Only then, the Court may see the mischief which the legislature sought to remedy and interpret the law in a manner that meets the intent of the legislature. We are therefore of the view that the conclusion to this effect reached by the High Court is quite erroneous and unsustainable in law. In the case of "JS Bank Limited Karachi and others v. Province of Punjab and others" reported as 2021 SCMR 1617 it was held by the Apex Court that a purposive rather than a literal approach to interpretation was to be adopted while interpreting statutes. Any interpretation which advanced the purpose of the Act was to be preferred rather than an interpretation which defeated its objects.
Similarly, in the case of "Waqar Zafar Bakhtawari and 06 others v. Haji Mazhar Hussain Shah and others" reported PLD 2018 SC 81, the same rational was reiterated by the Apex Court by observing that while interpreting the law, a specific provision of any statute, which was independent in nature, could not and should not ordinarily be held to be redundant, esnecially on the touchstone of another independent provision of the same statute. All possible efforts should be made to apply and adhere to the rules of purposive and harmonious construction, so that the allegedly conflicting provisions should be reconciled and saved.
9. During the course of arguments learned counsel for the respondents made reference to subsection (1) of section 7 of The Act of 2019 that even during the course of proceedings before the Court of law an aggrieved woman could file a complaint and could approach to the Ombudsperson, the same being relevant is also reproduced below;-
7. Complaint to the Ombudsperson in case proceedings in a Court of law are pending. (1) where proceedings in a Court of law are pending in relation to the ownership or possession of any property claimed to be owned by a woman, she may file a complaint under this sub-section to the Ombudsperson.
Provided that the Ombudsperson, on its own motion or on a complaint filed by any person including a non-governmental organization may also initiate action under subsection (1) in relation to the ownership or possession of a woman's property, even if proceedings are pending in a Court in respect of that property.
(2) The Ombudsperson shall make a preliminary assessment of the complaint under sub- section (1), whereafter he may, if the matter requires further probe or investigation: refer the matter to the concerned Deputy Commissioner, who, after calling the record, if necessary, and issuing notices to the complainant and her adversaries, conduct a summary enquiry and submit a report within fifteen days to the Ombudsperson.
(3) If the matter does not require any detailed probe, investigation or recording of evidence, the Ombudsperson may, after calling any record, if deemed necessary, may file a report in the Court of law, in which the case is pending, recommending that the proceedings in the Court may be terminated or put in abeyance unconditionally or subject to any Court order and the Ombudsperson be permitted by the Court to take further proceedings under this Act.
A plain and combined reading of subsections (1), (2) and (3) of section 7 of The Act of 2019 would also abundantly make it clear that if after filing of the complaint the Ombudsperson shall make preliminary assessm ent and if the matter requires further probe/investigation it shall refer the matter to the concerned Deputy Commissioner and who shall conduct a summary enquiry, however, the opening sentence of subsection (3) of section 7 is of much significance as it again put a clog on the powers of the Ombudsperson that "if matter does not require any detailed probe investigation or recording of evidence" then it can call for the record and proceed with the complaint, which in other words mean that the Worthy Ombudsperson shall not indulge itself in a complaint when legal and factual controversies are involved and which require in-depth enquiry, investigation and recording of evidence. Even otherwise, if the provisions of section 4, section 6 and section 7 of the aforesaid Act (as reproduced hereinabove) are read in juxta position then at the first glance there appears a disparity amongst them, however, a minute perusal of the provision as contained in section 6 being starts with non-obstante clause shall have overriding effect and thus when controversial questions were raised in the reply filed to instant complaint by the appellants/respondents then it is the provision of section 6 of The Act of 2019 which should have been prevailed before the learned Ombudsperson. Though there is no conflict in sections 4, 6 and 7 of The Act of 2019, rather the same are supplementary to each other, however, the learned counsel for the respondents fetched up section 7 as against sections 4 and 6 of The Act of 2019, then as per century old principle of interpretation their purposive and harmonious construction and interpretation is to be made and thus the same would definitely lean in favour of adjudication of disputes through Civil Courts and not through a complaint before the Ombudsperson which is rather an authority working under an Act of the Provincial Assembly. In the case of "Commissioner of Income Tax v. Messrs Dye Chemical Industries (Pvt.) Limited and others" reported as 2023 SCMR 50 it was held by the Apex Court that section 80D of the Ordinance introduced in the year 1991, much after the insertion of Clause 122C, was a non-obstante provision and therefore overrode the other provisions of the Ordinance including any tax exemption granted under the Ordinance prior to the introduction of section 80D. Similarly, in the case of "Commissioner Inland Revenue Multan and others v. Acro Spinning and Weaving Mills Limited Multan and others" reported as 2021 SCMR 1308, the same rational was reiterated by the Apex Court by observing that provision of Section 4 of the Sales Tax Act, 1990 dealing with zero rating of taxable supplies was an overriding provision on account of the non-obstante clause by which it started. Provisions of section 3(1A) of the Sales Tax Act, 1990 pertaining to further tax were subservient to the effect of zero rating. In the case of "Muhammad Mohsin Ghuman and others v. Govt. of Punjab through Home Secretary Lahore and others" reported as 2013 SCMR 85 it was held by the Apex Court that "Non obstante" clause had to read in the context of what the legislature intended in the enacting part of the provision.
10. In view of the above discussion, a question would also arise that as to whether the Ombudsperson is a Court or not and as to whether the Ombudsperson could sit over the proceedings or judgment or order of the Civil Court or not? It is an admitted position that our Constitution has created three organs of the State i.e. legislative, judiciary and executive and as per doctrine of the trichotomy of powers i.e., the legislative has to legislate, the judiciary has to interpret and the executive has to execute and thus only those Courts are to be treated as Courts which are created and established under Article 175 of The Constitution of Pakistan. Similarly, only those Tribunals are to be treated a Courts which are created by The Constitution of Pakistan, like Service Tribunal established and created under Article 212, Election Tribunal established under Article 225 and Tribunal relating to military affairs established under Article 199 (5) of The Constitution of Pakistan and apart from this any adversarial functions of the Court or any authority would obviously offend the basis theory of trichotomy. This litmus test was applied by the Apex Court in the case of "Liaqat Ali v. Federation of Pakistan" reported as PLD 1999 SC 504 where it was held that creation of Courts outside the control and supervision of Supreme Court or High Courts, not only militates against the independence of judiciary but it also negates the principle of trichotomy of power of the basic feature of the Constitution and since the office of Ombudsperson is the creation of the provincial statute, therefore, the same could not be termed as a Court created by the Constitution. The issue as to whether the Ombudsperson is a Court or not came up before the Apex Court in the case of "Shafaat Ullah Qureshi v. Federation of Pakistan" reported as PLD 2001 SC 142 where it was held that suffice it to say, that from above-cited cases, it is not established that the office of Wafaqi Mohtasib is a Court nor any such finding has been recorded in these matters though it has been stated that Wafaqi Mohtasib performs quasi-judicial functions.
Performance of quasi-judicial functions by itself does not convert an authority into Court, whether an act is quasi-judicial or purely executive depends on the interpretation of rules/law under which the authority exercises its jurisdiction. It is true that the administrative authority also is to act bona fide, but it is different from saying that it must act judicially. Many authorities are not Court, although they have to decide questions and have to act judicially in the sense that the proceedings shall be conducted with fairness and impartiality. In order to constitute a Court in strict sense, it shall have power to give a decision or a definitive judgment, which has finality and authoritativeness.
11. In view of the above is cussion and exposition of law on the subject specially the powers of the Ombudsperson under The Act of 2019 to entertain, adjudicate and pass an effective order despite the fact that a civil suit with respect to the same subject property and for the same relief was already pending and when many disputed and contesting objections were raised by the appellants/respondents qua the subject property being not a legacy and is a purchase propertyies then under the mandate of The Act of 2019 the Ombudsperson ought to have sent a reference to the Court where the suit between the parties was already pending, but she instead proceeded with the compliant and passed an effective order which is impugned herein, therefore, this appeal is allowed, the impugned order of the learned Ombudsperson dated 02.01.2023 is set aside and the parties are directed to pursue their remedy before the civil Court in an already pending suit.Since the respondent/complainant to her extent has withdrawn her suit before the civil Court after passing of the impugned order which has now set aside by this Court, therefore, restoration of the pending suit to her extent shall be positively considered by the learned Civil Judge Dir, when she approach for the same. Order accordingly.