1. ' With a view to assimilate real dispute requiring determination in this Objection Petition under section 12(2) C.P.C. Brief backgrounds would be necessary.
2. ' Respondent No, 1 (Malik Mitha Khan) owns Shop No, 120-G, Masjid Road, Zhob (hereinafter referred as suit premises) which according to him was rented to respondent No, 2 (Ghulam Muhammad) admittedly elder brother of petitioner (Abdul Baqui). Towards 18-3-1988 respondent No, 1 initiated proceedings in the Court of Civil Judge, Loralai under Article 7 of Regulation II of 1945 seeking ejectment of respondent No,
2. The suit was vehemently contested. Ultimately learned Civil Judge Loralai granted decree for ejectment by means of judgment dated 26-10-1988 whereby respondent No, 2 was directed to hand over vacant possession of suit premises to respondent No, 1.
3. This decree was challenged through Revision Petition No, 158 of 1988 which was partly accepted, mainly on account of jurisdictional defect and case remanded for deciding the matter afresh.
4. Subsequently learned Civil Judge Loralai again decreed the suit vide judgment dated 30-3-1988.
5. Thereafter Civil Revision No, 62 of 1989 filed before this Court by respondent Ghulam Muhammad was ultimately dismissed by means of judgment dated 23-5-1989.
2. Subsequently on 10th July, 1989 petitioner filed an objection petition under section 12(2) C.P.C.
6. Asserting that actually he was tenant in the suit-premises for the last 10 years. According to averments of petition respondent No, 1, after two years of the tenancy on 19-3-1981 executed an agreement with petitioner, extending period of tenancy to 15 years at the rate of Rs, 110 per month, and further arrangement to pay enhanced rent after expiry of aforementioned stipulated' period.
7. He alleged that Abdullah Jan brother of respondent/landlord throughout collected the rent, but on his refusal same was remitted through Money Order towards 24th August, 1987. It was further mentioned in the objection Petition, that a week back when petitioner incidentally met brother of respondent No, 1 he came to know about order of ejectment passed by the Court. It was, however, explained that petitioner had strained relations with respondent No, 2 (his elder brother), therefore, he was not aware about eviction proceedings initiated against him.
8. ' Respondent No, 1 filed detailed reply on 29-8-1988, reiterating his stand that respondent No, 2 had obtained shop in dispute from respondent No, 1, therefore, eviction proceedings were also seriously contested by him. It was mentioned that petitioner had full knowledge about pendency of eviction proceedings more so because on certain occasions he had also submitted applications on behalf of respondent No, 2 seeking adjournment of the case.
9. ' Correctness and validity of rent receipts, filed alongwith memo of petition was expressly disputed by respondent No,1, asserting that same had been forged. Similarly execution of lease agreement dated 19-3-1981 was squarely refuted.
10. ' The petition was entertained and admitted for further hearing on the principle discussed in case Muhammad Yakoob v. Nooran 1983 CLC 84. Later considering the pleadings, following 4 issues were framed on 4-9-1989:--
(1) Whether objector (Abdul Baqui) is tenant in the premises No, 120-G Zhob Bazar and has locus standi to file the present Objection Petition?
(2) Whether Objector (Abdul Baqui) was aware of Eviction Proceedings? If so to what effect?
(3) Whether Objection Petition is competent in law?
(4) Relief.
11. ' It may be seen, that petitioner examined 4 witnesses namely (i) Nazar Khan, (ii) Paind Khan, (iii)
12. Gul Shah Khan, (iv) Abdur Rashid S.D.O. Besides himself. These witnesses have tried to show that respondent No,2 was a Government employee in the Treasury Department and was posted at various places outside Zhob, and business in the shop was conducted by the petitioner. It was also proved that electricity was installed in the name of petitioner during year 1977. Respondent No,1 adduced PW(1) Malik Abdullah Khan, (ii) Akbar Khan (iii) Sardar Khan and (iv) Javed Hussain apart from himself to rebut the assertions. They have stated that shop in dispute was leased out to respondent No,2 and that he also used to work there. Applications for adjournment filed by petitioner in the Court of Qazi on behalf of respondent No,2, were also brought on record as Ex.R/1 to R/3. The execution of these applications by petitioner has not been challenged. It may be mentioned here that AW Gul Shah Khan has not supported execution of lease agreement dated 19- 3-1981. Apparently plea of unawareness about pendency of eviction proceedings against respondent No,2 concerning suit-premises on the available record is rather doubtful. However learned counsel for respondent, on the commencement of arguments raised objection, relating to maintainability of present petition contending that Code of Civil Procedure (Amendment)
13. Ordinance-X of 1980 PLD 1980 Central Statute P79 whereby section 12(2) was introduced; has not been extended to the tribal area. Mr. Ehsanul Haq, learned counsel for petitioner, supporting the applicability of Ordinance-X of 1980 in Zhob a 'Tribal area; made following submissions:--
(i) Ordinance-X of 1980, was promulgated on 26-3-1980 by the President of Pakistan in the exercise of powers available under C.M.LA.'s Order No,I of 1977 and all other enabling provisions therefore bar of Article 247 would not be attracted.
(ii) Article 247 of the Constitution, applied only to 'Act of Parliament' therefore Ordinance issued by the President would not be hit by said provisions.
(iii) Since Civil Procedure Code was already applicable in Zhob, therefore, subsequent amendments do not require any prior sanction as contemplated under Article 247 of the Constitution.
14. 'Arguments on that behalf were effectively met by Mr. Tariq Mehmood learned counsel for respondent No,1.
15. ' For proper appreciation of the controversy it would be necessary to reproduce Article 247 of the Constitution.
16. "247. (1) Subject to the Constitution, the executive authority of the Federation shall extend to the Federally Administered Tribal Areas, and to executive authority of a Province shall extend to the Provincially Administered Tribal Areas therein.
(2) The President may, from time to time, give such directions to the Governor of a Province relating to the whole or any part of a Tribal Area within the Province as he may deem necessary and the Governor shall in the exercise of his function under this Article comply with such directions.
(3) No act of Majlis-i-Shoora (Parliament) shall apply to any Federally Administered Tribal Area or to any part thereof, unless the President so directs, and no Act of Majlis-e-Shoora, (Parliament) or a Provincial Assembly shall apply to a Provincially Administered Tribal Area, or to any part thereof, unless the Governor of the province in which the Tribal Area is situated, with the approval of the President. So directs; and in giving such a direction with respect to any law, the President or, as the case may be the Governor, may direct that the law shall, in its application to a Tribal Area or to a specified part thereof, have effect subject to such exceptions and modifications as may be specified in the direction.
(4) Notwithstanding anything contained in the Constitution, the President may, with respect to any matter with the legislative competence of Majlis-e-Shoora (Parliament), and the Governor of a province, with the prior approval of the President may with respect to any matter, within the legislative competence of the Provincial Assembly make regulations for the peace and good government of a Provincially Administered Tribal Area or any part thereof, situated in the province. ,
(5) ..
(6) .
17. (7)...........................
18. Bare perusal of Clause (3) of Article 247 shows that no enactment could be extended to Tribal Areas without prior approval of the President. It therefore pre-supposes conscious application of mind by the President before promulgation or extension of any law in the Tribal area. Whereas in the instant case, undisputedly, requirements of Article 247 of the Constitution have not been complied with. It may be seen that Article 89 (2) as well as Article 128 (2) explicitly mentions that Ordinance promulgated by the President or Governor respectively shall have same force and effect as Act of the Parliament of Provincial Assembly. Broadly speaking Constitution of 1973 remained operative as far as possible except to the extent expressly deviated from or amended by the Martial Law Order. For elucidation reference can be conveniently made to the observation in case Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan PLD 1977 SC 639.
19. Relevant observation is reproduced below:- "As a result the true legal position which therefore emerges is:--
(i) That the 1973 Constitution still remains the Supreme Law of the land subject to the condition that certain parts thereof have been held in abeyance on account of State necessity,
(ii) That the President of Pakistan and the superior Courts continue to function under the Constitution. The mere fact that the Judges of the superior Courts have taken a new oath after the Proclamation of Martial Law, does not in any manner derogate from this position, as the Courts had been originally established under the 1973 Constitution and have continued in their functions in spite of the proclamation of Martial Law;
(iii) That the Chief Martial Law Administrator having validly assumed power by means of an extra- Constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures which have been consistently recognised by judicial authorities as falling within the scope of the law of necessity, namely:--
(a) All acts of legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the powers to amend it;
(b) All acts which tend to advance or promote the good of the people;
(c) All acts required to be done for the ordinary orderly running of the State; and
(d) All such measures as would establish or lead to the establishment of the declared objectives of the proclamation of Martial Law, namely, restoration of law and order, and normalcy in the country, and the earliest possible holding of free and fair elections for the purpose of restoration of democratic institutions under the 1973 Constitution;
(iv) That these acts, or any of them, may be performed or carried out by means of Presidential Orders, Ordinances, Martial Law Regulations, or Orders, as the occasion may require; and
(v) That the superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Martial Law Authorities, if challenged in the light of the principles underlying the law of necessity as stated above. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Orders Presidential Order or Ordinance."
20. The Ordinance, as discussed above is obviously to be deemed 'Act of Parliament' for all intents and purposes during the period of its enforcement. Thus contentions of learned counsel for the petitioner though attractive yet have no legal sanction. Additionally it may be seen, that during period of Martial Law, whenever any statute or enactment was extended to the Tribal area, constitutional requirements about prior sanction of President having been obtained was specifically incorporated in the statute. Reference can be made to some of such enactments for appreciating legal and factual position;
(i) Emigration Ordinance 1979 promulgated on 11th April, 1981 PLD 1982 Provincial Statute p.
21. 1.
22. Balochistan Local Government Ordinance, 1979, promulgated on 19th September, 1979 PLD 1982 Provincial Statute p.
23. 24.
(iii) Children (Pledging of Labour) Act, 1933 promulgated on 3rd July, 1979 PLD 1982 Provincial Statute 33.
(iv) Balochistan Wildlife Protection Act, 1974 promulgated on 30th April, 1980 PLD 1982 Provincial Statute 35.
(v) Zakat and Ushr Ordinance, 1980 promulgated on 5th July, 1980 PLD 1982 Province Statute 35.
(vi) Electoral Rolls (Amendment) Ordinance, 1978 promulgated on 13th December, 1978 PLD 1979 Provincial Statute 59.
(vii) Land Reforms Regulation (Validation of Orders) Ordinance, 1978, promulgated on 30th December, 1978 (PLD 1979 Provincial Statute 60).
24. (viii)Electoral Rolls (Amendment) Ordinance 1978 promulgated on 15th April, 1979 PLD 1979 Provincial Statute. 21 N.-W.F.P.
(ix) Land Reforms Regulation (Validation of Orders) Ordinance, 1978 promulgated on 6th March, 1979 PLD 1979 Provincial Statute. 24 N.-W.F.P.
(x) Laws (Continuance in Force) Order, 1977, promulgated on 31st May, 1979 PLD 1979 Provincial Statute-37 N.-W.F.P.
25. Quite apparently, while introducing Ordinance-X of 1980 there is nothing to suggest that proposed amendment was intended to be extended to the tribal area. It is relevant to mention that question regarding applicability of amendment of section 497, Cr.P.C. Introduced by means of Ordinance LXXI of 1979 having identieal effect came up for consideration in case Sharbat Khan v. Haji Lal Gul and others 1984 P Cr. L J 411. Relevant observations are reproduced below:-- "As in the present case no approval has been given by the Governor of Balochistan, therefore, this amendment in the Cr.P.C. Is not applicable to the Tribal area. The learned counsel for the petitioner has referred to the Laws (Continuance in Force) Order, 1977. Paragraph 2(1) of this Order provides that notwithstanding the abeyance of the provisions of the Constitution of the Islamic Republic of Pakistan, Pakistan shall, subject to this Order and any order made by the President and any Regulation made by the Chief Martial Law Administrator be governed as nearly as may be in accordance with the Constitution. According to the learned counsel the country is to be governed "as nearly as may be possible" in accordance with the Constitution and not entirely in accordance with the Constitution. He, therefore, says that not the Ordinance LXXI of 1979 by which amendment in section 497, Cr.P.C. Has been made is extended to the whole of Pakistan, therefore, the provisions of Constitution as contemplated in Article 247(3) are not attracted. It is not required that Governor must give such approval. There is no force in this contention. The Provisional Constitution Order C.M.L.A's Order 1 of 1977 and Article 2 of this Order has maintained Article 247 of the Constitution as part of this Order. It is thus clear that a law can only be extended to Tribal area as laid down in Article 247(3) of the Constitution.
26. ' Unless Order is made in terms of Article 247(3) of the Constitution no law shall be applicable to the Tribal Area. The learned counsel for the respondent has referred to delimitation of Constituencies (Amendment) Ordinance, 1978 by which the delimitation of Constituencies was extended to the Federally Administered Tribal Areas. He has also referred to Regulation I of 1978 by which Land Reforms (Amendment) Act, 1973 as in force in N.-W.F.P. And the Province of Balochistan was made applicable to the Provincially Administered Tribal Areas. The learned counsel has stated that if a law is to be extended to the Tribal area then regulation has to be made by the President. It is stated that number of other laws which are applicable to Pakistan have been extended to Tribal Areas through special Order. All laws enforced in Pakistan are not applicable to Tribal areas. As Ordinance LXXI of 1979 by which proviso has been added has not been extended to the Tribal area, the petitioners cannot claim the ' benefit of the proviso for their release."
27. For the foregoing discussion I have no hesitation to conclude that Ordinance X of 1980 does not apply in the Tribal Areas. Consequently present petition under section 12(2) C.P.C. Is not maintainable. In view of said conclusions merits need not be discussed. Petition is thus, dismissed, however, with no order as regards costs.