' NAZIR AHMAD BHATTI, J.--The facts of this writ petition are very simple. Mian Naseeb Jan and Mian Muhammad Ghauri, respondents Nos.4 and 5 herein, had filed a civil suit against Moambar petitioner herein in the Court of Additional Deputy Commissioner Swat, respondent No,3 herein, exercising power of the Deputy Commissioner under the Provincially Administered Tribal Areas Civil Procedure (Special Provision) Regulation, 1975 (hereinafter referred to as the Regulation). The petitioner herein submitted written statement before the learned respondent No,3 wherein he contested the suit. The learned respondent No,3 proceeding under section 4 of the Regulation referred the case to the Jirga appointed under section 5 of the Regulation. The learned respondent No,3 appointed Tehsildar Revenue as Chairman and four members of the Jirga with the consent of the parties by order dated 25-3-1978 and also framed issues and referred the case to the aforesaid Jirga for their report. It appears that one of the members of the Jirga was not taking part in the proceedings which were being conducted in the presence of the Tehsildar and three members namely Sher Muhammad Khan, Azim Khan and Khaliq Dad Khan. The Tehsildar, who was Chairman of the Jirga, wrote a separate report, two members, Sher Muhammad Khan and Azim Khan, also wrote a separate report jointly and third member Khaliq Dad also wrote a separate report. The reports of the Tehsildar and the aforesaid two members were unanimous and the learned respondent No,3 decided the suit by judgment dated 13-5-1979 whereby he accepted the majority report of the-two members and the Chairman and rejected the minority report of the third member Khaliq Dad Khan and dismissed the suit of the respondents Nos. 4 and 5 herein. Feeling aggrieved by the said judgment both the aforesaid respondents filed an appeal on 8-7-1979 in 'the Court of Additional Commissioner Malakand Division, respondent No,2 herein. The learned Additional Commissioner accepted the appeal on 20-8-1984 wherein he rejected the majority report of three members and accepted the minority report of one member and decreed the suit of respondents Nos. 4 and 5 herein. Feeling aggrieved by the said appellate judgment the petitioner herein filed a revision petition before the learned Additional Secretary Home but the same was dismissed on 21-4-1986. Still feeling aggrieved the petitioner filed the writ petition in hand wherein he has challenged the aforesaid orders of the learned.Additional Commissioner and learned Additional Secretary Home as without jurisdiction,without lawful authority and of no legal effect.
2. We have heard learned counsel for the parties at length.
3. The contention of the learned counsel for the petitioner is that under section 10 of the Regulation when any report of the Jirga is submitted to the Deputy Commissioner, then he is required to take any one of the actions provided in subsection (2) and subsection (3) of section 10 of the Regulation. For the sake of convenience both the subsections are reproduced below:- "(2) Upon receipt of a report of the Tribunal, the Deputy Commissioner may if the report does not give a finding on any matter or issue referred to the Tribunal or any substantial part thereof, or if he is of opinion that there has been material irregularity or that the proceedings of the Tribunal have been so conducted as to occasion a miscarriage of justice, remand the matter or issue to the tribunal or refer the matter or issue 'to a second Tribunal constituted in accordance with section 5.
(3) Where the finding of the Tribunal on the matter or issue referred to is unanimous or by a majority of its members and the Deputy Commissioner does not proceed under subsection (2), he shall decide the dispute and pass a decree in accordance with such finding."
4. He was of the opinion that if the Deputy Commissioner does not proceed under subsection (2), then he is bound to accept the unanimous or majority finding of the Jirga.
5. His other contention was that under subsection (3) of section 11 of the Regulation the Commissioner could exercise all or any of the powers conferred on an appellate Court by the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) and that under subsection (2) of section 107 of the Code the appellate Court has the same powers and can perform as nearly as may be the same duties as are conferred and imposed by the Code on Court of original jurisdiction. The learned counsel for the petitioner had actually urged that although under subsection (2) of section 11 of the Regulation the Commissioner could confirm, modify, alter or set aside any decision, decree or order appealed against but by the provisions of subsection (3) thereof he could exercise as appellate ,Court only those powers which were exercisable by the Court of the Deputy Commissioner under the Regulation. His further contention was that under the provisions of section 10 of the Regulation the Deputy Commissioner was bound to accept the unanimous or a majority finding of the members of the Jirga and similar limitation was imposed on the powers of the Commissioner when deciding an appeal under section 11 of the Regulation. On the contrary the learned counsel for the respondents Nos.4 and 5 contended that since under the provisions of subsection (2) of section 11 of the Regulation the Commissioner was given the power to confirm, modify, alter or set aside any decision, decree or order appealed against, his power to dispose of the appeal was not subject to any limitation as was imposed on the powers of the Deputy Commissioner under subsection (3) of section 10 of the Regulation.
6. Since a question of legal importance had arisen we had also heard the learned Advocate- General, who supported the contention of the learned counsel for the petitioner.
7. We have given our serious thought to the contentions raised by learned counsel for the parties and their arguments.
8. The purpose of the Regulation, as enunciated in the preamble thereto, was to provide for the Provincially Administered Tribal Areas a special procedure for the adjudication of disputes on certain matters to meet the special requirements of those areas. It shall thus be seen that there were special circumstances existing in the Provincially Administered Tribal Areas and the need for adoption of a special procedure was considered necessary for adjudication of disputes of a civil nature and that is why such cases were made triable by a Jirga appointed under the Regulation.
The minute perusal of the provisions of section 10 will clearly indicate that if the Deputy Commissioner did not find any defect in the report of the Jirga as laid down in subsection (2) thereof and he did not consider the necessity of remand of the matter or issue to the Jirga then under the provisions of subsection (3) thereof he was bound to accept the unanimous or majority finding of the Jirga. Since under section 11 of the Regulation the Commissioner can exercise the same powers as are conferred on the Deputy Commissioner, and although under subsection (2) of section 11 of the Regulation the former could confirm, modify, alter or set aside any decision, decree or order appealed against yet such power could be subject to the limitation as is envisaged for the Deputy Commissioner under subsection (3) of section 10 of the Regulation. In arriving at this conclusion we keep in mind that the Regulation is a special law made for special areas where special conditions exist and the unanimous or majority finding of the Jirga has been given due protection in subsection (3) of section 10 of the Regulation and that protection shall equally apply in the case of appeal filed before the Commissioner under section 11 of the Regulation.
9. We, therefore, find ourselves in agreement with the contention of the learned counsel for the petitioner and the learned Advocate General and hold that the power of the Commissioner to decide an appeal filed under section 11 of the Regulation will be subject to the condition as laid down in subsection (3) of section 10 of the Regulation. The Commissioner shall not have the power to discard the unanimous or majority finding of the Jirga when deciding an appeal unless he is of the opinion that there is any defect in the proceedings as laid down in subsection (2) of section 10 of the Regulation in which case he may remand the matter or issue to the Deputy Commissioner directing him to adopt any course of action laid down in subsection (2) of section 10 of the Regulation when any such remand order is made.
10. In the writ petition in hand we find that the learned Additional Commissioner set aside the judgment of the Additional Deputy Commissioner which was based on majority finding and accepted the minority finding of the Jirga. The impugned judgment of the learned Additional Commissioner does not show if there was any irregularity in the proceedings before the Jirga. The learned Additional Home Secretary also did not decide the revision petition taking into consideration the aforesaid legal position.
11. We will, therefore, accept this writ petition and set aside both the impugned judgments of the learned Additional Commissioner and the learned Additional Home Secretary. We will remand the case back to the learned Additional Commissioner with the direction to decide the appeal afresh after determining whether there was any illegality or any procedural defect in the proceedings before the Jirga. There shall however be no order as to costs.