' ABDUL KARIM KHAN KUNDI, J.--Provincially Administered Tribal Areas (Application of Laws)
(second) Regulation, 1974 (Regulation II of 1974) applied certain laws specified in the schedule as in force in N.-W.F.P. Immediately before the commencement of the Regulation to Chitral, Dir, Kalam, Swat and Malakand Protected areas, the Provincially Administered Tribal Area of the Province, commonly called PATA. At serial Nos.15 and 24. The Limitation Act 1908 and The N.-W.F.P. Pre- emption Act, 1950 are the relevant Laws for our purpose as specified in the schedule. By virtue of section 7 of the Regulation laws, instruments, customs or usages having the force of law corresponding to the provisions of laws specified in the schedule as applied to PATA ceased to have effect in those areas upon the commencement of the Regulation i.e, on 20th May, 1974. Thus on the commencement of the Regulation on and after 20th May, 1974 the corresponding provisions of rewaj, custom or usage having the force of law in PATA on the point of limitation of suits for pre- emption had ceased to have effect and the said suits were to b. Governed by Article 10 of the Limitation Act 1908 and section 31 of the N.-W.F.P. Pre-emption Act, 1950 and last the residuary Article 120 of the Limitation Act.
2. Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation (II of 1975) enacted on 26-7-1975 laid down in subsection (2) of section 4 ibid that a case shall not be referred to a Tribunal/Jirga if a civil suit in respect thereof would be barred by the Limitation Act, 1908. This provision of law given its straight and simple meaning would require the Deputy Commissioner to decide the question of limitation governed by the Limitation Act, 1908 by itself and to refer all other disputes for adjudication to Jirga including the question of limitation, not covered by the Limitation Act, 1908. In pre-emption case section 31 of the N.-W.F.P. Pre-emption Act, 1950 provides a period of one year from the date of attestation of mutation or delivery of physical possession in case of a sale of agricultural land or immovable property effected by attestation of mutation or vendee having taken physical possession of any part of the land or property under the sale whichever date is earlier. An anomaly is hereby pointed out in subsection (2) of section 4 of the Regulation that question of limitation governed by laws other than the Limitation Act was not to be adjudicated upon by the trial Court itself and was to refer the question alongwith other questions to Jirga for finding. The provision of law should have in fact read "A case shall not be referred to a Tribunal (Jirga) if a civil suit in respect otherof would be barred by the provisions of Limitation Act, 1908 or any other law in force in the said area."
3. The Legislature has later on amended subsection (2) of section 4 and the present subsection (2) runs as follows: "(2) Notwithstanding anything contained in the Limitation Act, 1908 (IX of 1908) a case shall not be referred to a Jirga if a civil; suit in respect thereof would be time-barred under any rewaj, custom or usage having the force of law".
4. The express intention of the Legislature herein again appears to be that the application of the Limitation Act, 1908 has been excluded only and henceafter question of limitation with regard to civil suit governed by the Limitation Act, 1908 was to be determined by rewaj, custom or usage having the force of law. That being the position the trial Court shall only decide the question of Limitation by itself to the extent if a civil suit in respect of the cause is barred under any rewaj, custom or usage having the force of law in supersession of the provisions of the Limitation Act, 1908. But as already stated in case of pre-emption suits the corresponding provisions of section 31 of the N.-W.F.P. Pre-emption Act, 1950 applied to PATA vide Regulation II of 1974 shall continue to be operative and effective to the exclusion of rewaj, custom or usage having the force of law in respect of its application to sales covered by it; for example cases of sales effected by attestation of mutation or delivery of partial physical possession under the sale. Thus subsection (2) of section 4 ibid as substituted by Regulation IV of 1976 once against appears to be an incomplete law. In fact in normal course it should run:- "Notwithstanding anything contained in the Limitation Act, 1908 or any other law in force in this respect, a case shall not be referred to a Jirga if a civil suit in respect thereof would be time-barred under any rewaj, custom or usage having the force of law."
5. Now after resume of the Legislative background as above this Court has first to answer the question if upon commencement of Regulation II of 1974 the corresponding provision of laws,,customs or usages having the force of. Law having ceased to have effect in PAT A on the application of the laws specified in the schedule to the Regulation shall be deemed as repealed and divested of all legal force and that Regulation IV of 1976 having effected amendment in subsection (2) of section 4 of Regulation II of 1975 can accord revival to rewaj, custom or usage having the force of law on-the point of limitation in respect of civil suits. There can be definitely no subscription to the view that section 7 of Regulation II of 1974 had wholesomely repealed the laws, instruments, customs or usages having the force of-law in all respects in the Provincially Administered Tribal Areas of the-Province. In fact the corresponding provisions of the said laws, customs or usages vis-a-vis the provisions of the laws mentioned in, the schedule as applied- to PATA upon the commencement of the Regulation have been simply rendered' without effect. All other laws, instruments, customs or usages having the force of law extraneous in operation to the laws specified in the schedule to Regulation II of 1974 have been continued and allowed intact and also to be duly effective. Even rewaj, customs or usages having the force of law having been superseded to the extent of corresponding provision by the laws specified in the schedule to the Regulation have been only made ineffective and not expressly repealed by virtue of section 7 of Regulation II of 1974 and as and when by Regulation IV of 1976 an amendment was made in subsection (2) of section 4 of Regulation II of 1975 rewaj, customs or usages relating to the point of limitation regarding civil suits have been revived to the extent and in supersession of Limitation Act, 1908. It was canvassed that the Courts have to give, way to, the intendment of tie Legislature and that by amendment made in section 4(2) of Regulation II of 1975 by Regulation. IV of 1976 the legislature in fact intended that in the matter of limitation as a whole rewaj, customs or usages having the force of law should henceforth be the rule of law in supersession to the Limitation Act and other laws on the subject. But subsection (2) of section 4 of Regulation II of 1975 is an exception clause excluding only the application of _Limitation Act, 1908 and instead applied the provisions of rewaj, customs or usages having the force of law. The rule of, interpretation is that an exception clause shall be interpreted confined to its express words and no implied intendment of the legislature should be read and found out in it by the Court and consequently only the provisions of the Limitation Act, 1908 shall stand superseded by rewaj, customs or usages having the force of law while the provisions of section 31 of N.-W.-F.P. Pre-emption Act, 1950 prescribing for a period of limitation for pre-emption suits in' certain cases shall not ipso facto stand superseded by rewaj, customs or usages having the force of law.
6. To sum up our answer is that laws, instruments, customs or usages having the force of law already in force in the Provincially Administered Tribal Areas of the Province shall upon the commencement of Regulation II of 1974 cease to have effect in those areas vis-a-vis the corresponding provisions of the laws applied to those areas by Regulation II of 1974. To be precise, in the pre-emption cases -the question of limitation earlier governed by rewaj, customs or usage having the force of law in the said areas shall upon the commencement of Regulation II of 1974 be governed by the law of limitation provided in the Limitation Act, 1908 and the N.-W.F.P. Pre-emption Act, 1950 in supersession of rewaj, customs or usages. However by enactment of Regulation II of 1975 as amended by Regulation IV of 1976 the question of limitation to the extent earlier governed by the Limitation Act, 1908 in respect of civil suits shall henceforth be governed by rewaj, custom or usage having the force of law and the trial Court shall decide such question of limitation itself and only after holding the suit within time he shall constitute a Jirga and refer the case to it for findings on other issues. In case the question of limitation in respect .Of civil suit would be governed by some law other than the Limitation Act, 1908 as applied to PATA like in the pre-emption cases section 31 of the N.-W.F.P. Pre-emption, 1950 the trial Court shall frame an issue on the point of limitation and refer the same alongwith other issues to Jirga for findings. To be more specific if the sale is effected by registered deed or a sale is followed by possession of the whole property it will be a case of application of Article 10 of the Limitation Act and under subsection (2) of section 4 of.P AT A Regulation II of 1975 the trial Court shall be required to decide the question of limitation under any rewaj, custom or usage having the force of law in supersession to the relevant provision of the Limitation Act, 1908. In case the sale has been effected by attestation of mutation or the sale has been followed by delivery of partial possession, the case shall be governed by section 31 of the N.- W.F.P. Pre-emption Act, 1950 in the matter of limitation and the trial Court shall refer the issue of limitation alongwith other 'issues for findings by the Jirga.
7. After enunciation of the point of law we proceed to dispose of the writ petitions as follows:- ' In W.P.No,57 of 1986 titled "Talizar Khan v. Khalilur Rehman etc." sale was effected by mutation No,155 attested on 19-4-1982 and a pre-emption suit was filed on 1-8-1982. Trial Court decreed the suit, which was confirmed by the appellate Court but the revisional Court in Additional Secretary, Home, on acceptance of the revision set aside the judgments and decrees of the lower forums and dismissed the suit after holding it as time-barred having not been brought within one month of the sale, a period prescribed in section 255 (1) of "Rewajnama" of Swat and his said order is impugned in the writ petition. As already held subsection (2) of seotion 4 of Regulation II of 1975 does not supersede the provisions of section 31 of the N.-W.F.P. Pre-emption Act, 1950 on the question of limitation in pre-emption cases by any rewaj, custom or usage having the force of law. Under section 31 a period of one year is prescribed for institution of a pre-emption suit from the date of the attestation of mutation in case of sale effected by mutation and accordingly the impugned order of Additional Secretary, Home dated 6-1-1986 is hereby declared as without lawful authority and to be of no legal effect and consequently the order of Assistant Commissioner dated 28-5- 1983 and order of Additional Commissioner dated 9-8-1984 are hereby restored and maintained and writ petition is accepted in the above terms with no order as to costs.
8. In writ petition No,570 of 1986 titled Fazal Muhammad v. Hamd Ali and others" sale was effected by mutation No,168 attested on 26-5-1982 which was pre-empted vide suit after two months and three days from the date of the attestation of mutation, which was dismissed by the Assistant Commissioner Bunir vide his order dated 13-4-1983 after application of "Riwajnama" of Swat, whereunder a period of limitation for pre-emption suit is prescribed as one month. His decision was set aside by the Appellate Court in Additional Commissioner vide his judgment dated 2-3- 1986. He remanded the case to the trial Court for decision on merits in accordance with law after holding the suit within time. Respondent went in revision before Additional Secretary, Home who vide his judgment dated 4-9-1986 accepted the revision petition, set aside the judgment and order of Additional Commissioner and restored the judgment and order of Assistant Commissioner after holding the pre-emption suit .As time-barred. Writ petitioner has impugned the judgments and orders of Assistant Commissioner and Additional Secretary, Home. As already held sales effected by mutations shall be governed in the matter of limitation by the provisions of section 31 of the N.- W.F.P. Pre-emption Act, 1950 in supersession of rewaj, custom or usage having the force of law and the question of limitation shall also be referred along to Jirga for finding. As such we hold the decisions of the said PATA forums on the point of limitation as without lawful authority and declare the same to be of no legal effect. We accordingly maintain the order of Additional Commissioner remanding the case to Assistant Commissioner Bunir (respondent 3) with direction to onward proceed in the case by referring the dispute along the question of limitation for adjudication to Jirga to be constituted under the Regulation. In the circumstances of the case, we, however, make no order as to costs.
' In W.P.No,571 of 1986 tit ed "Fazal Muhammad v. Sardar Ali and others" sale was effected on 26-5- 1982 vide mutation No,167. And the pre-emption suit was instituted after two months and three days of the attestation of mutation, which was dismissed by the Assistant Commissioner, Bunir holding it to be barred by time under 'Riwajnama' Swat, wherein the period of limitation for institution of a pre-emption suit against a sale is prescribed as one month. His decision was set aside by the Appellate Court in Additional Commissioner vide judgment dated 2-3-1986 who remanded the case to the trial Court with direction to refer it to Jirga for trial on merits where again and the revision petition of the petitioner was accepted the judgment and order of the appellate Court were set aside and those of the trial Court dated 13-4-1983 were restored, holding the suit to be barred by limitation under 'Riwajnama' Swat. The order in revision dated 4-9-1986 has now been impugned in this writ petition. As held that sales effected by mutation shall be governed in the matter of limitation by the provisions of section 31 of the N.-W.F.P. Pre-emption Act, 1950 whereunder a period of one year is prescribed for the institution of pre-emption suit from the date of the attestation of mutation, as such we hold the contrary decisions of the PATA forums on the point of limitation without lawful authority and declare the same to be of no legal effect. We accordingly remit the case to Assistant Commissioner Bunir (respondent No,3) with direction to onward proceed in the case by referring the dispute along question of limitation for adjudication to Jirga to be constituted under the Regulation. In the circumstances of the case, we, however, make no order as to costs.
' In W.P. No,341 of 1987 titled "Ghos Akbar v. Additional Secretary Home etc". The sale was effected by an unregistered deed dated 5-2-1977 which was pre-empted by the petitioner vide his suit dated 18-7-1978. His suit was dismissed in limine on 18-9-1987 and he also failed in his appeal. He went in revision before Additional Secretary, Home, who accepted the revision petition and remanded the case to the Court of Additional Commissioner for re-hearing. The learned Additional Commissioner, however, instead entrusted the case to Assistant Commissioner Timergara for disposal, who asked the parties to produce their evidence on the question of limitation and thereafter referred the case to E.A.C. Timergara for further proceedings, who had dismissed the petitioner's suit on 30-5-1984 on the ground of limitation after holding that the sale was effected by un-registered deed and possession was also delivered to the vendee and that the petitioner has filed a suit after the expiry of one year and 5-1/2 months and that his suit was time-barred both under 'Dastoorul Amal' Dir and section 31 of the N.-W.F.P. Pre-emption Act, 1950. The petitioner has failed in his further appeal before Additional Commissioner as well in revision before Additional Secretary, Home and the orders of all the forums were hereby impugned in the writ petition. Since in the case there has been led evidence about the delivery of possession of the whole of the property sold more than a year prior to the institution of pre-emption suit and as such the case was apparently governable under Article 10' of the Limitation Act, 1908, application of which has been excepted under subsection (2) of section 4 of PA TA Regulation II of 1975 and rewaj i.e, 'Dastoorul Amer has been applied which prescribes a period of six months from the date of sale, as such the petitioner's suit has been rightly dismissed as time-barred. Even if the petitioner's suit was covered by section F 31 of the N.-W.F.P.
Pre-emption Act, 1950 as if it was a case of delivery of partial possession, still his suit was time- barred as having been filed after more than one year of the date of delivery of partial possession.
There have not been pointed out any misreading or non-reading of evidence on the part of the forums under PATA Regulation and this Court would be loath to upset the concurrent findings of the hierarchy of PATA forums. Resultantly writ petition No,341 of 1987 is hereby dismissed with no order as to costs..
' Before parting, we also venture to point out certain anomalies, rather contradictions in the PATA Regulation in the conduct of trial of cases thereunder obliging us to recommend for re- examination and preferably repeal of PATA Regulation in order that all citizens are treated equal before the law and they are meted out equal protection of law and there is no discrimination on any basis like age an nature of cases etc:-
(i) Under subsection (2) of section 4 of PATA Regulation II of 1975 a trial Court has been vested with power to decide the question of limitation by itself under any rewaj, custom or usage having the force of law only in supersession to the Limitation Act, 1908 and as and when it will be a question of limitation governed by some other laws of the schedule of Regulation II of 1974, then even the question of limitation will not be decided by the trial Court itself but would refer the question of limitation along other questions for adjudication to Jirga.
(ii) Under section 3(2)(a) of Regulation II of 1975, cases, in which the interest of a minor or of a person of unsound mind is involved, shall not be adjudicated upon under the Regulation. Now the provisions of the Limitation Act have been only superseded in operation and effect by the provisions of rewaj, customs or usages having the force of law in cases triable under the PATA Regulation and as such in a pee-emption suit there is pre-emptor or vendee is minor or of unsound mind, the case shall be tried in a civil Court where the Limitation Act, 1908 along section 31 of the N.-W.F.P. Pre-emption Act, 1950 shall be duly applicable and consequently with respect to the same sale there will be a discrimination in the trial of the case in forums as well application- of law to the extent of limitation at least. In the context the development of a situation is also visualized when a civil suit is pending adjudication under the PATA Regulation between major parties and either of them dies pending suit and he is substituted by his legal representatives., out of one or more happen to be minor, the case will not be further adjudicated upon under the PATA Regulation as envisaged under section 3(2)(a). Now there is no provision in the Regulation for the transfer of the case to the civil Court or the return of plaint for presentation before a civil Court. Further in case- cf pre-emption suit the proceedings under the PATA Regulation vis-a-vis the question of limitation to the extent of Limitation- Act, 1908 are to be governed by rewaj, custom or usage having the force of law but as and when a minor or a person of unsound mind is made a party through substitution of a deceased party by his legal representatives or otherwise the proceedings under the PATA Regulation shall be terminated and if and when the case will be taken before the civil Court all intricate questions of law would be cropped up in the pre-emption suit before the civil Court on the point of limitation particularly whether it would be considered a case of continuation of proceedings or that in the civil Court the question of limitation will be determined under the Limitation Act, 1908 and section 31 of, the N.-W.F.P. Pre-emption Act, 1950.
(iii) Under section 3(2)(b) cases with provision for arbitration in a contract between the parties have been also excluded from the purview and jurisdiction of the forums and trial under PATA Regulation and so cases by or against the Federal or Provincial Government or public servants or a Corporation acting in the discharge of duties have also been placed outside the jurisdiction of the forums and trial under PATA Regulation which are all clear cases of discrimination likely to hit at the fundamental right enshrined in Article 25 of the Constitution of Islamic Republic of Pakistan, 1973.
(iv) Under section 3(4) of Regulation II of 1975 except as otherwise provided in this Regulation, the provisions of the Evidence Act, 1872 and the Code of Civil Procedure, 1908 have not to apply to the proceedings under the Regulation. Under section 9 Jirga has been vested with powers vested in a civil Court only in respect of enforcing attendance of any witness of any document or other thing.
Under the second proviso to section 8 of the Regulation the provisions of sections 121 to 126 of the Evidence Act, have been made applicable to the proceedings before the Jirga but the said sections pertain to non-compulsion of Judges and Magistrates to answer questions about their conduct in Court and of the spouses about gaining knowledge through communication during marriage and evidence as to affairs of States, official communications, information as to commission of offences and professional communications. Under section 8(2) the Jirga has been required to give parties an opportunity to cross-examine the witnesses deposing by each other while under subsection (3) of section 8 the Jirga has been empowered to administer oath to a witness in a form or manner consistent with the religion of the witness. On the contrary the civil Court shall try a civil suit under the Code of Civil Procedure, 1908 with application of evidence law provided in the Qanun-e-Shahadat Order, 1984 and the Oaths Act, 1872. In proceedings under the PATA Regulation before Jirga there will be no question of admissibility or inadmissibility of evidence while in a civil Court the decisions would be based on legal and admissible evidence. Again under the Oaths Act, 1872 as applied in PATA with no application of latest amendment the witnesses are to be examined by the civil Court on solemn affirmation and not Oath. All these anomalies have been highlighted as the same are likely to discriminate the citizens living in PATA in placing them equal before law and in meting then out equal treatment der the law in the adjudication of their disputes.
Order accordingly. THE END SUPREME COURT OF AZAD JAMMU AND KASHMIR 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.