NAZIR AHMED BHATII, J.-This petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 by Amir Jan and others petitioners against Commissioner, Quetta Division and other respondents seeks a declaration that the order dated 23-6-1970 of respondent No. 1 is without lawful authority and of no legal effect and for direction to the said respondent to adjudicate on the revision petition filed by the petitioners on 15-8- 1969 according to law.
2. The facts briefly stated are that the petitioners and Malik Muhammad Usman respondent No. 3 and one late Mekhtar are Utmankhel by caste and permanent residents of Tehsil Bori, District Loralai. The lands of Sanjavi in District Loralai are contiguous to the lands of Tehsil Bori and are separated from each other by a public way called Pasta Lar. A dispute arose in the year 1896 between Dummar Tribesmen and Utmankhel tribesmen of Tehsil Bori over the proprietary rights of land known as Lawara and litigation started between them. The Political Agent Loralai in a litigation decided on 5-5-1896 held with the concurrence of contesting parties the lands on the east of Pasra Lar belong to Utmankhel tribesmen of Tehsil Bori and lands on the west of the said path belong to tribesmen Dummar. The Agent to the Governor-General on 25-11-1896 confirmed this decision of the Political Agent. Since then the entire tribesmen of Utmankhel including the petitioners residents of Tehsil Bori and their prede--cessors-in-interest have been collectively appropriating the lands shown to the east of Pasra Lar. In the year 1929 a dispute arose between the tribes--men of Utmankhel residents of Bori Tehsil in respect of land east of Pasra Lar and the matter was referred to a Council of Elders under section 8 of the Frontier Crimes Regulation (hereinafter referred to as the "F. C. R.") and the Council again held that the landed property on the east of Pasra Lar was joint property of Utmankhel Tribesmen of Tehsil Bori. This award of the Council of Elders dated 7-2-1929 was given effect to in the order of the Court dated 18-3-1929. Settlement of Land took place in Tehsil Bori for the first time in the year 1966 and the Settlement Authorities prepared a record of rights. The jointly owned landed property of the tribesmen of Utmankhel known as Lawara and situated on east of Pasra Lar, ignoring all the past decisions of 1896 and 1929, was entered in the Fard jamabandi in the name of one Mekhtar son of Usman Hurmazai and Muhammad Usman, respondent No. 3 as owners in equal shares in Khasra Nos. 1355 and 1356, total measuring about 990 Kanals. Taking advantage of these entries the said late Mekhtar and the respondent No. 3 alienated this property in favour of respondents Nos. 4 to 6 vide Mutation No. 1 attested on 20-5- 1967. On coming to know of this transaction the petitioners and their predecessors-in-interest (37 men in all) filed an application to the authorities to rectify the settlement entries, but instead of doing the needful the authorities at the instance of respondent No. 3 arrested 20 petitioners whereupon an application was moved to the respondent No. 1 on 17-7-1968 and the said respondent through his order dated 24-8-1968 directed the Deputy Commissioner, Loralai, respondent No. 2, to refer the dispute to a Council of elders under the F. C. R. The said Council gave an award on 28-4-1969. Relevant extract from the award is reproduced below :- "(a) That the Dummars and Utmankhel could graze their cattle on the land of Utmankhel and the cultivated area by persons in the award could retain their individual holding. The seven persons Utmankhel including Mekhtar had each cultivated land which Mekhtar was permitted to retain and which Mekhtar and on his death his legal representatives are still in possession (Mekhtar and Malik Usman (respondent No. 3) had sold land bearing Khasras Nos. 1355 and 1356 total area 3971 Rod 16 polls to respondents Nos 4 to 6. The other seven persons are petitioners' relatives who are in possession of the 7 Bandats. The rest of land including Khasra Nos. 1355 and 1356 had been always joint land of Utmankhel tribes--men resident of Tehsil Bori. The award of Jirga on issue was: -
(a) That all the land of Awara belongs jointly of tribesmen of Utmankhel residents of Tehsil Bori."
Thus, the aforesaid award again affirmed the rights of Utmankhel residents of Te~tsil Bori Aver area Lawara of which Khasras Nps, 1355 and 1356 were a part. However, the respondent No. 3 did not accept the award and the respondent No. 2 in his order dated 19-5-1969 instead of accepting the award directed that any section of Utmankhel who were not residing in village Pathankot (where the aforesaid two Khasra numbers are situate) may file a suit for declaration that they are co- owners in the said lands. The petitioners filed a revision petition on 15-8-1969 before the respondent No. 1 challenging the said order of respondent No. 2 but the former, through his order dated 27-12-1969 strangely remanded the case to the respondent No. 2 to determine the following issues: - "(1) Whether Malik Mekhtar had sold Shamlat lands in excess of his entitlement in village Pathankot without the concurrence of his other co-sharers.
(2) If so what effect would it have on the claim of Malik Usman who is successor-in-interest of Malik Mekhtar."
The respondent No. 2 through his memo. No. 383-20/65/S & S, dated 1-6-1970 expressed his doubt about the entries in the record of rights and suggested that enquiries in this respect be made from the Settlement Authorities. The respondent No. 1 after consulting the Settlement Officer, by his order-dated 23-6-1970, confirmed the order-dated 19-5-1969 of respondent No. 2. The petitioners then filed further revision petition before the Member Board of Revenue which was also dismissed on 7-10-1970 on the plea that the Member, Board of Revenue had no jurisdiction under the F. C. R.
The petitioner then filed an appeal on 10-10-1970 before the respondent No. 1 under section 16 of the West Pakistan Land Revenue Act against the order of Settlement Officer dated 28-10-1967 regarding entry of Khasras Nos. 1355 and 1356 in the name of respondent No. 3 and Mekbtar, but the same was also dismissed on 27-8-1974. Hence the present constitu--tional petition. .
3. The learned Division Bench of this Court had, by judgment dated 11-4-1982, dismissed the petition holding the same as suffering from laches. The aggrieved petitioners filed civil appeal before the Supreme Court which was accepted vide judgment dated 26-4-1986 and the point of laches was condoned and this Court was directed to decide the petition on merit in accordance with law.
4. We have heard learned counsel for the parties at great length and have also gone through the record of the case very minutely. There is no cavil between the parties in so far as the decision dated 5-5-1896 and confirmed by A. G. G. On 25-11-1896 is concerned, which would mean that in that year the land which is now in dispute was held to be a jointly owned property of Utmankhel tribe. This position was again confirmed in the year 1929. However, the dispute between the parties arose when the first settlement took place in the year 1966 and both the said Khasra numbers were shown in the record-of-rights as exclusively owned by late Mekhtar and Malik Muhammad Usman respondent No. 3. On the application of the petitioners and other persons of Utmankhel tribe under section 8 of the F. C. R., a Council of elders was constituted and the said Council again re-affirmed the said position but the Deputy Commissioner, Loralai, respondent No. 2, instead of granting a decree in accordance with the findings of the Council, as provided in clause (d) of subsection (3) o section 8 of the F. C. R. Directed the petitioners to file a suit in a Court of~ competent jurisdiction.
This direction of the respondent No. 2 was without any lawful authority for the simple reason that under subsection (3) of section 8 of the F. C. R. The Deputy Commissioner was bound to adopt any one of the following courses of action: - "(3) On receipt of the finding of the Council of Elders under this section, the Deputy Commissioner may-
(a) remand the case to the Council for a further finding ; or
(b) refer the case to a second Council ; or
(c) refer the parties to the civil Court ; or
(d) pass a decree in accordance with the finding of the Council, or o not less than three-fourths of the members thereof, on any matte stated in the reference ; or
(e) declare that further proceedings under this section are not required."
The Deputy Commissioner instead of adopting any course of action ha narrated above made a very novel order directing the aggrieved party to approach a Court of competent jurisdiction. It should have been known t the Deputy Commissioner that the area where the property in dispute is situated was governed by the provisions of the F. C. R. And under section R thereof he was competent to take cognizance of the matter on the said application of the petitioners because there was no suit pending in any civil Court and the area being a tribal area no civil Court existed there except that of the D. C. Under section 8 of the F. C. R. Even under section 10 of the F. C. R. No Court was competent to take cognizance of any claim with respect to which the Deputy Commissioner had proceeded under section 8 of the F. C. R. Even otherwise or the order of referen to the Council of elders made by the Deputy Commissioner on 24-8-1968 was not in accordance with the provisions of section 8 of the F. C. R because under subsection (2) thereof he was bound to clearly state the matter or matters on which the finding of the Council of elders was required. Moreover, the last but one paragraph of his order-dated 19-5-1969 is also without any lawful authority for the simple reason that' any entries made by the Settlement Authorities in the revenue record were: B not made in judicial proceedings and the same could not operate as, res judicata. Although the Council of elders had clearly given the opinion that the land in dispute was jointly owned by Utmankhel tribe and not by two persons exclusively, the Deputy Commissioner should have given a~ definite finding on this point and there was no need to refer the Utmankhels other than the Utmankhels residing in Pathankot to sue the other party.
5. The respondent No. 1 also did not proceed according to law in the revision, which was filed before him under section 49 of the F. C. R. Instead of deciding the point at issue one way or the other he simply called for a report from the Settlement officer who, not having any legal capacity, under the F. C. R., was not competent to give any opinion in the matte and the Commissioner also should not have acted on that opinion. The question before the respondent No. 1 was whether to uphold the decision of the respondent No. 2 or to set it aside as being against the provisions of subsection (3) of section 8 of the F. C. R. Or to remand the case to him to give a clear finding. On the contrary the commissioner held late Mekhtar and respondent No. 3 as exclusive owners of disputed property and dismissed the revision petition improperly.
6. It was the duty of respondent No. 1 to decide the revision petition according to law and we are compelled to accept this Constitutional petition on the simple ground that the respondent No. 1 failed to exercise authority vested in him under the law and for the additional reason that the respondent No. 2 also failed to adjudicate in the matter in accordance with law.
7. There is, however, one more aspect of the case, which has required our minute attention. During the pendencey of the constitutional petition a Regulation was promulgated on 12-5-1976 by the Government o Baluchistan with the prior approval of the President. This Regulation is known as West Pakistan Muslim Personal Law (Shanat Applicatio Act) (Extension to the Tribal Areas of Baluchistan) Regulation, 197 (hereinafter referred to as the "Regulation of 1976"). This regulation applies to the Tribal Areas of Baluchistan and the area where the property in dispute is situated is admittedly tribal area. According to the provisions of subsection (1) of section 2 of this Regulation all disputes of civil nature where the parties are Muslims have to be decided according to Muslim (Shariat) Law by the Court of Qazi or Majlis-e-Shoora constituted under section 4 and having pecuniary jurisdiction to try the same. By section 7 of the Regulation all suits and appeals pending in District Courts or civil C Courts subordinate thereto or any tribunal involving a dispute which under this Regulation is tribal by a Court of Qazi or Majlis-e-Shoora shall be transferred to the Court of Qazi or Majlis-e-Shoora, as the case may be having jurisdiction in the matter under the Regulation and upon such transfer shall be deemed to have been instituted therein and shall be bear and determined accordingly. It shall thus be seen that section 7 of the regulation has repealed by application the provisions of section 8 of the F. C. R. And the matters which were formerly tribal under section 8 of the F. C. R. Are now to be heard and determined by the Court of Qazi or, a the case may be, the Majlis-e-Shoora having jurisdiction in the matter under the Regulation of 1976. It is also noteworthy that subsequently by section 3 of the Criminal Law (Special Provisions) (Application to the Provincially Administered Tribal Areas of Baluchistan) Regulation, 197 (Regulation II of 1979) the whole of the F. C. R. Has been repealed in it application to the Provincially Administered Tribal Areas of Baluchistan with effect from 16-10-1979.
8. We would consequently accept this petition, set aside the impugned orders of the respondents Nos. 1 and 2 and would remand the case (applica--tion dated 17-7-1968 submitted by the petitioners to D. C. Loralai) to the D Court of Qazi, Bori-Sanjavi at Loralai, having jurisdiction under the Regulation of 1976, with the direction to adjudicate upon the matter in accordance with the provisions of the said Regulation. There shall be no order as to costs.