' MOHAMMAD BASHIR JEHANGIRI, J.--This petition under Article 199 of the Constitution of Islamic Republic of Pakistan is directed against the orders dated 22-4-1986 and 22-10-1986 respectively passed by EAC/STM, Swat, and Additional Secretary,. Home, N.-W.F.P. Respondents 2 and 4. Brief facts forming the background of this petition are that the petitioners filed a suit under the Provincially Administered Tribal Areas Regulation No,1I of 1975 (hereinafter called as the Regulation) against Bakas respondent No,1 for a declaration of their title to and confirmation of their possession over the house fully described in the heading of the plaint. Additionally, a relief for issuance of permanent injunction so as to restrain respondent. No,1 from interfering with the possession was claimed. In their plaint the petitioners laid claim to the ownership of the house in dispute as their ancestral property. Respondent No,1 contested the suit by filing his written statement wherein the claim of the petitioners had been repudiated. The STM/Swat referred the dispute to the Jirga in terms of section 4 of the Regulation. The unanimous award was in favour of the petitioners. The grievance of the petitioners is that respondent No,4 had erroneously dismissed their suit on the ground that a suit filed by respondent No,1 against one Ghulam Muhammad over the house in dispute had been decreed by another competent forum under the Regulation which had attained finality. The petitioners felt aggrieved and filed an appeal to the Additional Commissioner, Malakand (respondent No,3). The learned Additional Commissioner, by his order dated 8-1-1986, while accepting the appeal set aside the order of respondent No,4 and remanded the case to him for fresh reference to another Jirga for trial on merits. Respondent No,1 went in revision to the learned Additional Secretary Home, N.-W.F.P. Who vide his order dated 4-10-1986 accepted the revision, set aside the order of the Additional Commissioner, Malakand and restored that of respondent No,4. Hence this petition.
2. Syed Iqbal Hussain, the learned counsel for the petitioners, contended that the impugned order of respondent No,4 was without lawful authority and of no legal effect in that it was in clear violation of the provisions of section 10 of the Regulation. He further pointed out that after receiving the unanimous award of Jirga the Deputy Commissioner could either remand the matter in case he found any illegality or irregularity in the award of Jirga or could pass a decree in accordance with the findings with such an award. He also argued that the award of the Jirga was not hit as res judicata because in the earlier suit and in the suit in hand the house was the same but the defendant in that case was Ghulam Muhammad and, therefore the unanimous award of Jirga could not be set aside on this score. Syed lqbal Hussain invited our attention to the provisions of section 15 of the Regulation and maintained that the impugned order of respondent No,4 was also without lawful authority inasmuch as respondent No,4 being an officer below the rank of an Assistant Commissioner could neither be authorised nor could perform or exercise all or any of the powers or functions of Deputy Commissioner within the contemplation of section 15 of the Regulation.
3. As against this Mr. Nasirullk, the learned counsel for respondent No,1 submitted that it was now well settled that reference of a dispute by an Officer of the rank of only the Assistant Commissioner was not- the sine qua non of the exercise of such a power and that an Extra Assistant Commissioner was equally competent to perform this function.
4. A similar objection was also taken in "Khani v. Bahadur Khan and another" (W.P.No,8/88) which was repelled by a Division Bench of this Court comprising of my Lord the Chief Justice and Nazir Ahmad Bhatti, J, in the following words:-- "In so far as first point is concerned, we do not consider it of any importance for the reason that both the officers, Assistant Commissioner and Extra Assistant Commissioner, being of the same grade were equal in status and no illegality in that respect was committed by the Deputy Commissioner in delegating his powers to the Extra Assistant Commissioner under section 15 of the N.-W.F.P. Regulation No,II of 1975."
5. We are in respectful agreement with the liberal interpretation put by the Division Bench on section 15 of the Regulation. There is hardly any difference between the two officers in so far as the judicial experience is concerned. In some cases the E. A. Cs. Have more judicial experience than the Assistant Commissioners. Both the officers are of the same grade and status. Thus the delegation of powers of Deputy Commissioner to the Extra-Assistant Commissioner insteaa of Assistant Commissioner within the contemplation of section 15 of the Regulation would not be illegal.
6. Mr. Nasirul Mulk made an attempt to defend the impugned order of respondent No,4.
Nevertheless we have not been persuaded to uphold the impugned order of dismissal of the suit by respondent No,4 and the restoration of this order by the impugned order dated 4-10-i988 passed by respondent No,2 after it was quite justifiably set aside by respondent No,3. A perusal of various provisions of the Regulation would reveal that the Deputy Commissioner or his delegatee has no power to dismiss or decree the claim against the finding of the Jirga. Under subsection (1) section 10 of the Regulation the finding of the Jirga on a matter or issue referred to it under section 4 shall be given in accordance with law, or the custom or usage having the force of law, and shall be submitted to the Deputy Commissioner in the form of report containing reasons for such finding. Under subsection (2) of section 10 ibid upon the receipt of a report of the Jirga the Deputy Commissioner may if the teport does not give a finding on any matter or issue referred to the Jirga or any substantial part thereof,_ or if he is of the 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 Jirga or refer the matter or issue to a second Jirga constituted in accordance with section 5. Under subsection (3) of section 10 ibid where the finding of the Jirga on the matter or issue referred to it 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.
7. The provisions of section 10 of the Regulation clearly show that upon receipt of a report of the Jirga, the Deputy Commissioner may if the report does not give a finding on any matter or issue referred to the Jirga or any substantial part thereof or if he is of the opinion that there has been material irregularity or that the proceedings of the Jirga have been so conducted as to occasion a miscarriage of justice, either remand the matter or issue to the Jirga or refer the matter or issue to a second Jirga constituted in accordance with section 5 of the Regulation. The reading of subsection (2) of section 10 ibid would, therefore, lead to the conclusion that the Deputy Commissioner under the conditions specified in subsection (2) of section 10 of the Regulation has not been authorised to dismiss the suit on any ground whatsoever. What he has been empowered with is either to remand the matter or issue to the Jirga or refer the matter or issue to a second Jirga constituted in accordance with section 5 of the Regulation. In the instant case the learned S.T.M. Has obviously fallen into an error to dismiss the suit himself on a ground which was not referred to the Jirga for decision. He could only disagree with the finding of the Jirga- and either remand the case or refer the matter or issue to a second Jirga constituted in accordance with section 5 of the Regulation.
8. For the reasons stated above, we are of the view that the order of respondent No,4 dismissing the suit of the petitioners being in clear violation of section 10 of the Regulation was without lawful authority; that the order dated 8-1-1986 passed in appeal by respondent No,3 to remand the case to respondent No,2 with the direction that it should be referred to fresh Jirga for trial on merits was unexceptionable and; that the order dated 4-10-1986 passed by respondent No,2 whereby the order of the appellate Court was set aside was also without lawful authority and the impugned orders are declared to be without lawful authority and of no legal effect. In consequence of the above the learned Deputy Commissioner is to proceed with the case in accordance with law and to refer the dispute afresh on all the pleas, including the plea of res judicata if raised by respondent No,1. There shall be no order as to costs.