' ABDUL KARIM KHAN KUNDI, J.--Earlier Writ Petition No,203/86 titled "Moamber Khan v Additional Secretary Home and others" was decided on 21-3-1989 by a Division Bench comprised of Mr.Justice Mohammad Ishaq Khan and Mr, Justice Nazir Ahmad Bhatti. Facts of the case were that the Deputy Commissioner had decided the case on acceptance of the majority award of the Jirga and accordingly dismissed the suit. In appeal the appellate Court in Additional Commissioner accepted the appeal, rejected the majority award and accepted the minority award and consequently decreed the suit. The revisional Court in Additional Secretary, Home also confirmed the judgment and order of the appellate Court. The learned Division Bench accepted the writ petition, set aside the judgments and decrees of the appellate Court and the revisional Court and remanded the case to the appellate Court with direction to decide the appeal fresh after determining whether there was committed any irregularity or procedural defect in the proceedings before the Jirga. The learned Division Bench ruled that the powers of the appellate Court to decide an appeal filed under section 11 of the provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation No,II of 1975 were subject to the condition laid down in subsection
(3) of section 10 obliging the Deputy Commissioner to accept a unanimous or majority award of the Jirga and decide the case accordingly in case he does not find any fault with the proceedings of the Jirga under subsection (2) of section 10 of the Regulation in which case also he can only remand or refer matter or issue to the Jirga or refer the matter or issue to a fresh Jirga.
2. Writ Petition No,28/85 titled "Mst. Taja and others v. Shamsur Rehman etc." was decided on 25-4- 1989 by a Division Bench comprised of Mr. Justice Inayat Elahi Khan and Mr. Justice Wali Mohammad Khan. The facts were that wife had brought a suit for recovery of past maintenance and in the alternative for dissolution of marriage as against the husband in which an ex parte decree was passed by the Additional Deputy Commissioner, Swat, which was later on set aside on the application of the husband and the case was referred to Jirga constituted under the Regulation which submitted its award with findings to justify the dismissal of the suit. The Additional Deputy Commissioner exercising powers of the Deputy Commissioner, on acceptance of the award, dismissed the wife's suit. She went in appeal before Additional Commissioner, who accepted the appeal, set aside the judgment and decree of the Court of Additional Deputy Commissioner and passed a decree for dissolution of marriage in favour of the wife. The husband went in revision before Additional Secretary, Home, who, on acceptance of the revision, set aside the order of the appellate Court and restored that of the original Court. The learned Division Bench entered upon the merits of the case and found that the husband had failed to perform marital obligations for three years and had also failed to maintain his wife for a period of two years and as such the wife was entitled to a decree for dissolution of marriage as rightly held so by the appellate Court. The Division Bench opined that the learned revisional Court had wrongly held that the appellate Court was not empowered to pass any order inconsistent with the award of the Jirga. It was held that the powers of the Deputy Commissioner, the original Court, under section 10 and the powers of the Government, the revisional Court under section 12 were confined not to vary or set aside a finding of the Jirga but so was not the case regarding the appellate Court who has been empowered under subsection (2) of section 11 to confirm, modify, alter or set aside any decision, decree or order appealed against except after giving the parties an opportunity of being heard and that under subsection (3) all powers conferred on an appellate Court under the Code of Civil Procedure have been vested in Commissioner, the appellate Court under the Regulation in deciding an appeal. The learned Division Bench had accordingly upheld the orders of the appellate Court dissolving the marriage and declared the orders of the Additional Secretary, Home, the revisional Court as orders without lawful authority and to be of no legal effect.
3. In Writ Petition No,411/86 titled "Abdul Qadus v. Hassan etc." a Division Bench comprised of Mr.Justice Fazal Elahi Khan and M. Justice Mohammad Azam Khan was seized of a case with facts that Hassan respondent had purchased land and the sale was pre-empted by Abdul Qadus petitioner in the Court of Extra Assistant Commissioner, Chitral, exercising the powers of the Deputy Commissioner under the PATA Regulation. The case was referred to Jirga which submitted a unanimous award recommending the dismissal of the suit. The Deputy Commissioner accepted the award and consequently dismissed the suit. On appeal, the Additional Commissioner accepted the appeal, set aside the judgment and decree of the Deputy Commissioner and passed a decree for possession by pre-emption in favour of pre-emptor petitioner. The revisional Court in Additional Secretary, Home, set aside the judgment of the appellate Court and restored the judgment and order of the Deputy Commissioner. The learned Division Bench dismissed the writ petition, maintaining the judgments and orders of Deputy Commissioner and Additional Secretary, Home and disapproved the judgment and orders of Additional Commissioner holding that the appellate Court would only exercise the powers vested in the Deputy Commissioner under the Regulation and that if an appellate Court was even to find anything wrong with the unanimous or majority award of the Jirga it has to remand the case to the Jirga or refer the case to a fresh Jirga constituted under the Regulation and not that it can substitute its own findings for the unanimous or majority findings of the Jirga.
4. In Writ Petition No,320/88 titled "Ghulam Jafar v. Mst. Mir Zebun Nisa etc." facts are that one Mir Ghazi Khan had allegedly gifted his estate with possession to Ghulam Jafar the petitioner and his brother Ghulam Murtaza herein respondent No,3. On the death of Mir Ghazi Khan his daughter Mst.
Mir Zebun Nisa herein respondent No,1 filed a suit as against the donees, which was referred to Jirga wherefrom a unanimous award was received upholding the gift in favour of Ghulam Jafar to the extent of half and that other half to go to Mst. Mir Zebun Nisa daughter and Mst.Balama widow of the deceased herein respondent No,2. The learned EAC exercising the powers of the Deputy Commissioner accepted the award and passed a decree accordingly which was appealed against by both the parties before Additional Commissioner who accepted the appeal and remanded the case to the Deputy Commissioner for writing a speaking and comprehensive order which was complied with, maintaining his earlier judgment. One Said Ghaffar and others had also filed application for impleadment claiming to be the heirs of Mir Ghazi Khan but their application was rejected. There were filed three appeals as against the order of EAC to Additional Commissioner, who accepted the appeal of Mst. Zebun Nisa respondent No,1 and dismissed the appeal of the petitioner holding that the gift was as a whole void and that the property of the deceased was to go to his legal heirs. Petitioner filed a revision before Additional Secretary, Home but with no better fate and at last the constitutional jurisdiction of this Court was invoked.
Mr.Justice Inayat Elahi Khan had formed a view and recorded a judgment with reference to Order 41 read with section 107 C.P.C. Vesting vast powers in the appellate Court to determine and dispose of a case finally irrespective of the findings given by the trial Court. It was held that the powers of the appellate Court u/s 11 of the Regulation were not limited to the powers enjoyed by the trial Court. Further on merit on basis of the evidence brought on record, he has also formed a view approving the findings of the appellate Court and has accordingly dismissed the writ petition.
Since Mr.Justice Mohammad Azam Khan was earlier a party to a contrary judgment in Writ Petition No,411/86 decided on 30-5-1989 as earlier referred, he therefore, proposed to the learned senior Judge that the Hon'ble Chief Justice may be requested to constitute a larger Bench and accordingly a Full Bench was constituted for the purpose if the appellate Court, in Commissioner/Additional Commissioner under the Regulation, in deciding an appeal as against the decision, decree or order of the Deputy Commissioner, has the power to modify, alter or set aside the decision, decree or order appealed against and in deciding an appeal he has also the power to determine a case finally and in the context he has wider powers than the Deputy Commissioner, so much so, that after finding no fault with the proceedings before a Jirga he can substitute his own findings for the unanimous/majority award of the Jirga and pass a decree contrary thereto.
5. We heard the learned counsel for the parties at some length. The Regulation was also read before us from A to Z. It was contended that the Statute i.e, Regulation has conferred full appellate powers on the Commissioner to confirm, modify or set aside any decree or order appealed against and that in deciding an appeal it has been authorised to exercise any of the powers conferred on an appellate Court by the Code of Civil Procedure. Reference was also made to subsection (1) of section 107, C.P.C. Which empowers the appellate Court to determine a case finally, to remand a case, to frame issues and refer them for trial and to take additional evidence. Subsection (2) ibid was further referred which vests all powers of the original Court under the Code in the appellate Court. Consequently it was argued that under the Regulation the powers of the Deputy Commissioner were, no doubt, limited and he cannot substitute his findings for the unanimous/majority award of the Jirga but that the appellate Court has the full powers, sitting in judgment both on the proceedings of the Jirga as well the Deputy Commissioner and that it can appreciate the evidence recorded by the Jirga at its own end even to arrive at different conclusion.
6. On the other hand it was contended that PATA Regulation is a special law meant for special people and enforced in special area with a primary object to administer justice through local members of the Jirga at the local level in accordance with the rewaj, custom or usage having the force of law and that the Deputy Commissioner, the Commissioner, and Additional Secretary, Home have only been appointed under the Regulation to supervise and control the proceedings of the Jirga, the trial forum and that in order to avoid the intricate provisions of procedure and evidence to the proceedings under the Regulation the application of the provisions of the Evidence Act and the Code of Civil Procedure have been excluded from application and that only to facilitate the work of the appellate Court there have been vested powers of an appellate Court provided under the Code of Civil Procedure on the Commissioner/Additional Commissioner in deciding appeals and that in all cases the Commissioner, the appellate Court, would also conform to the provisions of the Regulation in deciding appeals. In the context it was also canvassed that the trial forum was the Jirga, over it was the Deputy Commissioner, the appellate Court and last the Additional Secretary, Home, the revisional Court and that all these functionaries have only to supervise the trial to be conducted by the Jirga in accordance with law.
7. It is correct that the Court of the Deputy Commissioner is not stricto senso a trial Court, rather, the trial forum is the Jirga to record evidence and give findings on matters or issues referred to it.
The Deputy Commissioner supervises and controls the proceedings of the Jirga and as and when he finds the report of the Jirga deficient in material particulars or that the proceedings have been conducted with material irregularity to have occasioned miscarriage of justice, he may either refer the matter back to the Jirga or constitute a fresh Jirga under the Regulation. In no case he can substitute his own findings for those of the Jirga or to enter upon the trial of the case himself. The trial forum shall in all cases be the Jirga under the Regulation. The Statute places the Deputy Commissioner under obligation that if he does not find any fault with the report of a unanimous or majority award of the Jirga he would give a decision in accordance therewith. He cannot alter or modify the findings of the Jirga on matters or issues referred to it.
8. Now we proceed to discuss the powers of the appellate Court under section 107, C.P.C. With reference to the possible exercise of such powers by the appellate Court in Commissioner/Additional Commissioner under the PATA Regulation. Under section 107(1)(b)(c)(d), C.P.C. The appellate Court has the power to remand a case, to frame issues and then refer them for trial and to take additional evidence or to require such evidence. Suppose the Deputy Commissioner under section 10 (2) of the Regulation has found that the unanimous/majority award of the Jirga has not given findings on any matter or issue or any substantial part thereof or he has found some material irregularity in the conduct of the proceedings by the Jirga, occasioning miscarriage of justice and he has consequently remanded the matter or issue to the Jirga or refer the matter or issue to a second Jirga and in appeal the appellate Court in Commissioner/Additional Commissioner forms a different opinion holding that the unanimous/majority award had recorded correct finding on the issue referred to it and there has been no material irregularity in the conduct of proceedings to occasion any miscarriage of the justice and has accordingly proceeded to accept the appeal then here very pertinent question will arise if after holding such what else the appellate Court can do except to give decision in accordance with the unanimous/majority award of the Jirga. In case the appellate Court proposes to accept the minority award of the Jirga in preference to the majority award it will be a clear case of misconduct of the proceedings by the Jirga having occasioned miscarriage of justice and in that case he has not to accept the appeal and should rather agree with the Deputy Commissioner in remanding the case to Jirga or refer the case to a fresh Jirga as provided under subsection (2) of section 10 of the Regulation. As for remand powers the appellate Court may exercise the same in remanding the case to the Court of Deputy Commissioner against whose decision an appeal has been preferred to him after finding any fault with his order directing him to re-hear the case, or he may frame issues and refer the case to the same Jirga for trial or to constitute a fresh Jirga therefor. However, in the scheme of the Regulation the appellate Court cannot proceed to take additional evidence on a matter or issue falling within the exclusive jurisdiction of Jirga except the issue of limitation if the same requires evidence which falls within the exclusive domain of the Deputy Commissioner where the appellate Court may also exercise his powers under section 107
(1) (d), C.P.C. Again in the scheme of the Regulation the appellate Court has to exercise its powers under section 107 (1) (a) ,C.P.C. To determine a case finally in conformity with the provisions of section 10 (3) but as and when he finds some fault with the unanimous/majority award of the Jirga and wants to draw a different conclusion from the evidence on record he will have to acknowledge and adjudge it a case of misconduct of the proceedings on the part of the Jirga and would accordingly exercise his powers under section 10 (2) of the Regulation to remand the case to the Jirga or refer the case to a fresh Jirga. As already said the Regulation has recognised a Jirga as a trial forum and as and when there is necessitated a trial under the Regulation in shape of evidence on issues other than the issue of limitation the matter would be referred to Jirga for the purpose.
Under section 107 (2), C.P.C. The appellate Court has been vested with the powers and duties conferred and imposed on the Court of original jurisdiction by the Code in respect of the suits.
Under the Regulation the Court of the Deputy Commissioner has been vested with limited powers vis-a-vis the unanimous/majority award of the Jirga and accordingly the appellate Court shall also have the same powers in deciding appeals as against the orders of the Court of Deputy Commissioner. A reference is made to "M.V.Hayagreeva Rao v.Commissioner of Hindu Religious and Charitable Endowments Board, Hyderabad', AIR 1958 Andra Pradesh 156 whereunder Madras Hindu Religious and Charitable Endowments Act, a party aggrieved by the order of Commissioner had the right to institute a suit in the Court against such order which has the power to confirm, modify or cancel the order of the Commissioner but did not have the power to suspend the order of the Commissioner pending the disposal of the suit. The Statute had also coferred the right of appeal on the High Court from the judgment and decree of the Civil Court. The powers of the appellate Court in the High Court were not expressly fettered as those of the trial Court to stay the Commissioners order and in the context the High Court at the hearing of appeal referred to section 107, C.P.C. And held that since the original Court had no powers to stay the Commissioner's order during the pendency of the suit and the appeal was the continuation of the suit, consequently the prohibition contained in the Statute in case of the trial of suit vis-a-vis the stay of the Commissioner's order shall also be duly operative in case of the appellate Court. The ratio of the above authority can also be applied to the appellate powers of the Commissioner/Additional Commissioner under the Regulation to the extent of the prohibition and restraint on the powers of the Deputy Commissioner in not giving a decision contrary to the unanimous/ majority award of the Jirga in deciding appeal against the order and decision of the Deputy Commissioner.
9. We have thus formed a confirmed opinion that under the scheme of the Regulation the appellate Court in Commissioner/Additional Commissioner and the revisional Court in Additional Secretary, Home, are all the supervisory forums like the Court of the Deputy Commissioner and that they all shall be bound while making decisions by the prohibition and direction contained in subsection (2) and subsection (3) of section 10 of the Regulation that as and when they found any fault with the unanimous/majority award of the Jirga they shall remand the case to the Jirga or refer the case to a fresh Jirga and in case they found no fault with the proceedings of the Jirga they will have to give decision in accordance with the unanimous/majority findings of the Jirga.
10. Applying the above ratio of law to the facts of the case we would accept the writ petition, set aside the judgments and orders of all the forums and would further order the impleadment of Said Ghaffar and others in the suit whose earlier such application was dismissed since Mir Ghazi Khan governed by the Hanfi law in inheritance was to have his collaterals as heirs alongwith his daughter and widow. Adjudication of the dispute in the absence of the necessary parties is by itself a material irregularity to warrant reference of dispute to fresh Jirga. The award of the Jirga is also consequently set aside. The Deputy Commissioner is accordingly directed that after the impleadment of the necessary parties he should refer the case for adjudication to a fresh Jirga constituted under the Regulation. In the circumstances of the case the parties are left to bear their own costs.