SHAFIUR RAHMAN, J.---Leave to appeal was granted to examine whether the High Court of Balochistan had correctly by its judgment dated 14-5-1980, declined to interfere in the constitutional jurisdiction with the order of the Commissioner, Quetta, dated 29-6-1978 refusing to interfere with the unanimous award given by the Council of Elders under the Frontier Crimes Regulation, 1901 (Regulation No,III of 1901) (hereinafter referred to as the F.C.R.) in a civil dispute.
2. The facts of the case are simple. The respondents Nos.1 and 2 (hereinafter referred to as the respondents) claimed redemption of land and of water rights from the appellant on payment of Rs,520. The matter was referred to the Council of Elders for trial under the F.C.R., the dispute being of a civil nature. The first award was given in favour of the plaintiffs/respondents by three Members of the Council of Elders out of five. In Revision the Commissioner set aside this award on 29-5-1976 on the ground that it did not satisfy the requirements of clause (d) of sub-paragraph (3) of paragraph 8 of the F.C.R. Which required a majority of three-fourths of the Members of the Council of Elders for its acceptance. He remanded the case for retrial in accordance with law after constituting a fresh Council of Elders. A Council of Elders was constituted which replaced the earlier. After perusal of the proceedings that had already taken place, the Council of Elders rendered a unanimous award in favour of the respondents. It was accepted by the Deputy Commissioner and not interfered with by the Commissioner in Revision. The High Court also, for various reasons, did not interfere with it.
Hence, this appeal.
3. The respondents have not appeared and the appeal has been heard ex parte.
4. Mr. M. Bilal, Advocate, the learned counsel for the appellant took up a jurisdictional question namely, that after the enforcement of the Balochistan Civil Disputes (Shariat Application)
Regulation, 1976 (hereinafter referred to as the Regulation) which was extended to the area in dispute on 18th of February, 1977, the Commissioner had no jurisdiction to dispose of the Revision Petition which had necessarily, under paragraph 7 of the Regulation, to be transferred to the Majalis-e-Shura or Qazi for its disposal. Further, it is contended that the retrial did not, in fact, take place as the Council of Elders appointed in substitution of the earlier one, did not record any further evidence, make any enquiry, or hear the parties, but proceeded to decide the matter on the same evidence. While doing so, it did not take into consideration the Fatwa of a subsequent date filed by the appellant in support of his claim. Additionally, the grievance is that Commissioner did not pass a speaking order. His order does not satisfy the requirements of a judgment.
5. In order to appreciate the contention of the learned counsel it is necessary to reproduce hereunder certain provisions of the Regulation. Under. This Regulation Qazi Courts were conferred jurisdiction in civil disputes wherein the subject-matter in amount or value did not exceed Rs,50,000 and for amounts/value exceeding that, the Majalis-e-Shura had the original jurisdiction and also the appellate jurisdiction. Paragraph 7 of the Regulation provided as hereunder:-- "7. Transfer of pending cases to Courts of Qazi and Majalis-e-Shura.--- Upon the coming into force of this Regulation in any area, all suits and appeals pending in any District Court or a Civil Court subordinate thereto, or in any tribunal, involving a dispute which under this Regulation is to be adjudicated upon by a Court of Qazi or Majalis-eShura, shall stand transferred to the Court of Qazi or Majalis-e-Shura, as the case may be, having jurisdiction in the matter under this Regulation; and, upon such transfer, shall be deemed to have been instituted therein, and shall be heard and determined accordingly."
' As against this, the relevant provisions of the F.C.R. (Paragraphs 48, 49, 52 and 53), provided as hereunder:-- "48. Appeals barred.---No appeal shall lie from any decision given, decree or sentence passed, order made or act done, under any of the provisions of this Regulation.
49. Revision.---The Commissioner may call for the record of any proceeding under this Regulation and revise any decision, decree, sentence or order given, passed or made therein.
52. Powers in exercise of civil revisional jurisdiction.---Nothing in this Chapter shall be deemed to authorize the Commissioner to vary or set aside any decision, decree or order given, passed or made in any civil proceeding under this Regulation, unless he is of the opinion that there has been a material irregularity or defect in the proceedings or that the proceedings have been so conducted as to occasion a miscarriage of justice, or that the decision, decree or order is contrary to good conscience or public policy.
53. Record of reasons.---Where, in the exercise of his revisional jurisdiction in any proceeding under this Regulation, the Commissioner varies or sets aside any decision, decree, sentence or order, he shall record his reasons for so doing."
' Equally important for the purposes of this appeal is the definition of "Commissioner" in the same law (F.C.R.), in Paragraph 2(c) as hereunder:- "'Commissioner' or 'Court of Commissioner' means the Provincial Government or such officer or officers as the Provincial Government may appoint in this behalf."
6. Paragraph 7 of the Regulation on the strength of which transfer of proceedings is sought, expressly mentions all suits and appeals. There is no mention of the Revision. The forum where such suits and appeals should be pending in order to attract this provision are mentioned as District Courts, or Courts subordinate to it or a Tribunal. The Council of Elders consisting of the Members selected by the Deputy Commissioner for trial of a case, civil or criminal, would certainly qualify as a Tribunal. So will the Commissioner, because in the definition clause, 'Commissioner' has been treated as synonymous with the 'Court of Commissioner'. The word "Tribunal" has been defined in Black's Law Dictionary (Fifth Edition) as hereunder:-- "The seat of a judge; the place where he administers justice. The whole body of judges who compose a jurisdiction; a judicial Court; the jurisdiction which the judges exercise.
' In Roman Law, an elevated seat occupied by the praetor, when he judged, or heard causes in form. Originally a kind of stage made of wood in the form of a square, and movable, but afterwards built of stone in the form of a semi-circle."
' The 'Commissioner', on the definition quoted would, therefore, qualify as a Tribunal if not as a 'Court', though the word 'Court' has been affixed to his designation.
7. It is true that the word 'Revision' has not been expressly mentioned in Paragraph 7 of the Regulation, but then in interpreting beneficial and remedial statutes, quite often the word 'appeal' has been given an extended meaning to include revision. In the case of Tahir All and others v. Chief Judge, Karachi Small Causes Court and another PLD 1963 SC 147 where under special Law, a right of revision was conferred, a question arose, whether the word 'appeal' provided in section 15(1) of the Karachi Rent Restriction Act read with section 12(2) of the Limitation Act includes a revision and the time spent in obtaining copies of orders, to be excluded for appeal, would also be excluded in case of Revision. The case-law was exhaustively considered as hereunder:-- "Upon construction of the word 'appeal' used in section 12(2) there has been divergence of judicial opinion. Some of the Courts in India adopted a restricted construction of the word 'appeal' and laid down emphatically that it does not include revision. On the other hand some of the Courts construed the expression in a broader sense. There is, however, plainly no such preponderance in either direction so as to render it clear that there is any settled course of decisions on this question.
' The word 'appeal' has not been defined in the Code of Civil Procedure. In Wharton's Law Lexicon 'appeal' has been defined as "The judicial examination of the decision by a higher Court of the decision of an inferior Court". In The Attorney-General v. H.J. Sillem and others (11 E.R. X H.L.C. 703)
Lord Westbury described an appeal in these terms:-- "An appeal is the right of entering a superior Court and invoking its aid and interposition to redress the error of the Court below."
Story in his work on the Constitution, (Vol.II) has pointed out that the characteristic of an appeal is a revision of a judicial proceeding of an inferior Court so that the mode in which the power is exercised is wholly immaterial. In the case of Nagendar Nath De v. Suresh Chandra De 59 I.A. 283 the question as to what amounted to 'an appeal' under Article 182(2) of the Limitation Act arose.
The following observations of their Lordships of the Judicial Committee in that case are both suggestive and significant:- "There is no definition of 'appeal' in the Civil Procedure Code, but their Lordships have no doubt that any application by a party to an appellate Court asking it to set aside or revise a decision of a subordinate Court, is an 'appeal' within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent."
' The view also finds support from the observation of the Judicial Committee in Raja of Ramnad v.
Kamid Rowthen and others 53 IA.
74. Their Lordships while referring to Civil Revision Petition observed:-- "From the judgment an appeal in the form appropriate to such a case from the Munsif's Court i,e, a Civil Revision Petition was referred to the High Court of Madras."
' From the above it is clear that the remedy which has been given to the aggrieved party by way of revision does not differ in essence from a right of appeal.
' It is true that under the Code of Civil Procedure a distinction has been made between a 'revision petition' and 'an appeal'. Under section 115 of the Code of Civil Procedure a revision petition only lies where an appeal does not lie. But here we are dealing with a revision petition which had been filed under a special Act, namely Rent Restriction Act, 1953. It cannot be said that the special Act deals with revision petitions in the same sense as it is used in the Code of Civil Procedure. In this Act, before the amendment of 1962, there was no provision for appeal. The only remedy available to an aggrieved party against the order of Rent Controller was to file a petition before the Chief Judge of the Small Causes Court, Karachi to whom the power of revision had been delegated by the Central Government."
8. One distinguishing feature of that case is that there, a right to prefer an application to the Central Government within thirty days was provided in the statute which was taken to be akin to a right of appeal. More relevant is the decision of the Indian Supreme Court on the point in Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat AIR 1970 SC 1 where the suo motu revisional jurisdiction of the High Court under section 115 of the Code of Civil Procedure was considered in the following words:- "Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. We do not, therefore, consider that the principle of merger of orders of inferior Courts in those of superior Courts would be affected or would become inapplicable by making a distinction between a petition for revision and an appeal."
9. There are two other reasons why an extended and a beneficial interpretation should be given.
The first of these is that as held in Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187, where procedure and forums are altered and the alteration relates substantially to procedure, the pending matters also get affected. The Court had observed in this case as hereunder:-- "It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties, pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively Looking at the provisions as a whole we are of the view that all that the Family Courts Act has done is that it has changed the forum, altered the method of the trial and empowered the Court to grant better remedies. It has, thus, in every sense of the term, brought about only procedural changes and not affected any substantive right.
According to the general rule of interpretation, therefore, a procedural statute is to be given retroactive effect unless the law contains a contrary indication."
10. We find that the procedure of the trial has been made more formal, regular and orderly and in forums which are better equipped with their knowledge and training. In addition, the other reason for giving an extended meaning is the intention of the legislature itself. Prior to the promulgation of the Regulation, substantive law governing the decision of Council of Elders was, custom and usage which was not contrary to good conscience or public policy. (Paragraph 9 of the F.C.R.). In the Regulation, the substantive law has been changed to Shariat in the following words:-- "2. Adjudication of civil disputes according to Shariat.---(1) Notwithstanding anything to the contrary contained in any law for the time being in force or any custom or usage, all disputes of a civil nature, where the parties are Muslims, shall be decided in accordance with Muslim (Shariat)
Law; ' Provided that nothing in this subsection shall apply to cases by or against the Federal Government or a Provincial Government or a Local Authority or a public Corporation or a public servant acting in the discharge of his duty.
(2) If all the parties to a dispute of a civil nature any of whom is a non-Muslim agree to the dispute being adjudicated upon under this Regulation, such dispute shall, as far as practicable, be adjudicated upon accordingly."
11. Paragraph 7 of the Regulation definitely gives the impression that the Regulation was to have effect on the pending suits and appeals and to that extent it was retroactive. The only test laid down for transfer was as to whether the dispute is triable under the Regulation and if it was then it had to go to the Court competent to try it irrespective of the fact in which Court it was pending.
Therefore, even appeals have to go back to the Court of Qazi for trial in accordance with Shariah and not to be transferred in the appellate jurisdiction of Majalis-e-Shura for disposal according to the law in force at the time the proceedings were instituted. To that extent, the express language of paragraph 7 of the Regulation makes the provisions of the Regulation applicable in the areas to which and when it is extended retroactive over all proceedings pending before any Tribunal, Court or District Court.
12. In view of the reasons given for holding that appeal for the purposes of paragraph 7 includes the Revision preferred by a party invoking the power of the Commissioner under paragraph 48 of the F.C.R. And pending suits and appeals before any District Court or a Civil Court subordinate thereto, or any tribunal, in the nature of an appeal, would be liable to be transferred to the Court of Qazi for trial in accordance with the injunctions of Shariat. The fact that the appellant had instituted the Revision in the Court of Commissioner cannot stand in the way of such a transfer because at the time when he instituted the proceedings, that was the only remedy which could possibly be invoked by him.
13. In the circumstances, this appeal is allowed. The judgment of the High Court is set aside. The Constitution Petition filed by the appellant is allowed in terms that the judgment of the Deputy Commissioner given on the recommendations of the Council of Elders and the decision of the Commissioner in Revision are declared to be without lawful authority. In view of paragraph 7 of the Regulation, the proceedings shall stand transferred to the Court of Qazi having territorial jurisdiction in the matter who shall summon the parties and proceed in accordance with law. No order is made a's to costs as the respondents have been proceeded ex parte in the proceedings.