1. ' MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court has arisen out of a land settlement case. The facts narrated by the learned counsel are that Muhammad a displaced person from India and claim-holder died on 7-1-1951. According to appellants, he left behind Mst.
2. Resham Bibi appellant a daughter, Mst. Umrawan a widow and three brothers. The inheritance mutation was sanctioned in favour of the said heirs. However, Mst. Elahi Sain and Mst. Arshan, later on claimed to be the widow and daughter respectively of Muhammad deceased. They filed an appeal which was allowed.
3. ' In the proceedings which took place at the later stages the, Settlement Authorities asked the appellants who had not admitted the relationship of Mst. Elahi Sain and Mst. Arshan with Muhammad, to seek remedy before Civil Court. The appellants field a suit which was decreed. It was held that they were not the widow and daughter of Muhammad. The appeal failed but in second appeal the High Court held that the Civil Court had no jurisdiction to go into the question.
4. The present appellants' side challenged the High Court judgment in the Supreme Court. In so far as the question of jurisdiction is concerned the view of the High Court was affirmed; but the operative part of the Supreme Court judgment contains the following observation as well: "If the Settlement Authority feels that the decision of the Civil Court, to which they had themselves referred to the parties, is of any assistance to them, then it is for them to take that into consideration. The parties can urge this before the Settlement or Rehabilitation Authorities when this question of inheritance is being considered by the said authorities".
5. ' When the matter again came up for consideration before a Settlement Commissioner within a year after the judgment of the Supreme Court, it was held by the said officer that the Revision of the appellants filed against the order of the R.O. (A.S.C.) dated 21-9-1963 was not competent and the same was accordingly dismissed. The operative part of the order of the Settlement Commissioner reads as follows:- ' Counsel for the appellant contends that this is not a fresh institution and was pending before the Settlement Authorities prior to 30th June, 1974. This contention is based on the argument that the order of D.S.C. Dated 9-9-63 was a contingent order and the respondents in that appeal had been advised to seek remedy in a Civil Court. The argument further runs that on the basis of this order the parties had gone to the Civil Courts and the Superior Courts and the honourable Supreme Court on 6-6-74 had decided that the question of inheritance can be decided by the Settlement authorities and hence the present revision petition.
6. "Counsel for the Respondent contends that this is a fresh revision and not maintainable. I perused the orders of the D.S.C. Dated 9-9-1963. This is not a contingent but a final order. The D.S.C. Had held that "the divorce is not proved" and had accepted the appeal. The D.S.0 further held that it is the duty of the Respondent to go to Civil Court. It is apparent from this order that the present Revision Petition is a fresh institution and being filed after 30th June, 1973 is not maintainable."
7. ' The High Court in this second round upheld the order of the Settlement Commissioner.
8. On dismissal the appellants' Constitutional (Writ) Petition they sought leave to appeal which was granted to examine the following question: "Whether the Settlement authorities are helpless in giving effect to the decision of a Civil Court when they themselves have referred the parties to the said forum for determination of their rights".
9. ' One of the points which prevailed with the High Court was that the matter having been decided by the Settlement Authorities in an order passed long before the judgment dated 5-5-1975 impugned before it, the case could not be taken as "pending proceedings" with the Settlement Authorities therefore on account of the provision contained in subsection (2) of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, it was considered, that the revision before the Settlement Commissioner was not compete& and was rightly dismissed. Reliance was placed on the case reported as Muslim High School No,1 v. Mst. Asghari Khanam 1984 SCM R 332. The observation that "pending proceeding means a proceeding which is being heard, tried or considered by any authority but if any proceeding is yet to be taken to "higher authority" it cannot be called the pending 'proceedings," was quoted. The High Court relying on the same judgment further observed "that the intention of the repealing Act of 1975 clearly was that after 1-7-1974 no fresh revision could be brought before the Settlement Commissioner."
10. ' It is most unfortunate case in which the appellants, without any fault on their part having been pushed by the Settlement Authorities to seek remedy before the Civil Court, obeyed direction and took the matter upto the Supreme Court. But unfortunately as argued while the findings of fact (that Mst. Elahi Sain and Mst. Arshan were not the widow and daughter of Muhammad) were in appellants' favour, it was held that the Civil Court had no jurisdiction. When they returned to the Settlement Authority considering that this interregnum having gone waste, alongwith their effort and expense and the links in the settlement hierarchy should be picked up from where they were left, they were told that the Settlement Authorities also had no jurisdiction to deal with it. Thus in this jurisdictional void they were told that even if Mst. Elahi Sain and Mst. Arshan were, as held by the Civil Court, not the widow and the daughter of Muhammad, they shall always be treated so. The High Court judgment impugned before this Court in the second round is to this very effect in reality.
11. Are the Courts in Pakistan, which have the umbrella and cover of Islamic ethos, jurisprudence and principles as also the mandatory commands to support them as contained in the Constitution, helpless to resolve this controversy? And the parties are being told that in this very sensitive case of inheritance which also involves the question of legitimacy or otherwise of a woman, to wait till the next world when the controversy might be resolved. This approach obviously seems negative. The law in Pakistan is not that deficient nor it is so weak that if there is a right there is no remedy, in this particular case.
12. ' Three questions need to be resolved: One, whether the bar regarding pending proceedings contained in subsection (2) of section 2, of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 is also applicable to the constitutional jurisdiction Under Article 199. Secondly, whether the proceedings were in law pending in 1975 or, could be deemed to be pending. And lastly, whether the High Court had jurisdiction to examine the validity of the-Settlement Authoritys' direction to the appellants to seek remedy in the Civil Court and at the same time they proceeding to decide the settlement case against the appellants.
13. ' Sections 2 (2), (3) and (4) of 1975 Act read as follows:-"2. Repeal of certain laws.--(1)
(2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid.
(4) Any proceedings transferred or remanded to an officer in pursuance of subsection (2) shall be disposed of by him in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings relate.
(4) The final orders passed under subsection (3) shall be executed by the Board of Revenue of the Province in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings related."
14. It needs no discussion or analysis that the Act of 1975, section 2 (1) whereof repealed Settlement Laws, in its subsection (2) reproduced above could not have taken away the jurisdiction of the High Court under Article 199 of the Constitution and/or any jurisdiction of the Supreme Court which is conferred on it by the Constitution. Thus no presumption should be raised that section 2 (2) has directly or even indirectly taken away the said jurisdiction. This view is further strengthened by the language used in the two parts of subsection (2) one, relating to High Court and the Supreme Court and the other relating to the designated Settlement Authorities. While in the first part there can be assumed to be a condition that the Settlement Authorities would continue to deal with only those proceedings which immediately before the repeal may be pending before them, in the sense that they would stand transferred for final disposal to the newly designated officers who are commonly known as notified officers. But there is no such pre-condition with regard to the entertaining, hearing and deciding the settlement matters in so far as the High Court and the Supreme Court are concerned. The reference regarding these two Courts starts with "all cases decided by the ----" clearly shows that the Supreme Court and the High Court would continue to entertain settlement cases within their respective jurisdiction and if a given case would have been fit for remand to any such authority in the absence of repeal, these Courts would be competent to remand the same to the notified officer. The said officer would be duty bound under subsection (3) to dispose of the matter in accordance with provisions of the Act, or Regulations which were repealed. Thus it was positively intended that the Supreme Court and the High Court would and should continue to entertain and decide settlement cases as before without any change except that if a case was to be remanded it would, after the repeal, be remanded to the notified officer and not to the earlier designated Settlement Authorities. This interpretation would equally apply to the Writ jurisdiction as well as to the normal appellate jurisdiction of the superior Courts.
15. Accordingly, question No,1 is answered in the negative.
16. ' The second question is: whether, the proceedings could not be treated as pending in this case till 1975 when the laws were repealed and when the Settlement Commissioner declared that they were not pending. In view of decision of first question in this case the second question would not arise. However, it needs to be remarked that in the previous round of litigation the Supreme Court had held that whenever the matter again comes before the Settlement Authority it would be competent for it to take note of and act upon the decision by the Civil Court in so far as the merits of the case are concerned; notwithstanding the fact that the verdict on the question of jurisdiction was C against the present appellants. This observation in the context of the present case amounted to a declaration under Article 189 of the Constitution and thus it was binding on all other Courts. It is not necessary to enter into the controversy as to what was the position of the Settlement Commissioner as it is well known that if the excuse regarding "pending proceedings" had not been pressed before and accepted by the Settlement Commissioner he would have definitely followed the observation of the Supreme Court. It may be clarified here that the said observation did not further compel the Settlement Commissioner in such a manner as to accept the findings of fact by the Civil Court as binding on him. With this clarification the second question in the context of the present case, can be answered in the affirmative.
17. The third and last question is also simple to answer. In the High Court all the actions of the Settlement Authorities had been challenged by the appellants in its Writ jurisdiction. Of course, the orders were also brought under challenge. In so far as the Writ in the nature of certiorari is concerned, may be the order of the Settlement Commissioner holding that the case was not pending prior to the repeal could not be challenged as without lawful authority; but the action prior to repeal, of the Settlement Authority who had directed the appellants to file civil suit and without waiting for the results of the civil suit, it proceeded to decide the same question for which reference was sought to be made, against the appellants could be examined. An ordinary litigant, to say the least, would not be able to say: this is justice being done to him particularly when after he had approached the Civil Court in accordance with the direction of the Settlement Authorities he is told that you are left with no remedy in the meanwhile. Even if it had been so on account of some Constitutional or statutory command another principle would also be attracted that no one shall suffer on account of the act of Court. If this principle applies to the Courts it definitely applies to quasi-judicial forums like the Settlement Authorities. Thus the last question also is answered in the affirmative.
18. 'In the light of the foregoing answers we allow this appeal and remand the case to the High Court to decide the question: as to whether Mst. Elahi Sain and Mst. Arshan have been validly treated as widow and daughter of Muhammad deceased. While doing so the High Court would be at liberty to act upon the decision of the Civil Court in earlier round of litigation as observed by the Supreme Court in the final judgment rendered in that round of litigation. On the other hand if the High Court feels that the case needs to be remanded to the notified officer, it would be open to it to do so. It will not amount to confer a new jurisdiction on the notified officer which of course may not exist under the first part of subsection (2) of section 2. But here the notified officer would be duty bound to act on the directions of the High Court under the second part of subsection (2) of section 2, as also under subsection (3) of section 2.
19. Before closing this judgment it has to be further observed that the answers rendered to the questions arising in this case are based on the normal and usual interpretation of the relevant provisions of the Statute Law as well as Constitutional provision regarding the jurisdiction of the Supreme Court and the High Court. Of course, while interpreting them the provisions contained in Article 2-A read with Objectives Resolution have also been kept in mind in the sense that any doubt, major or minor, has been resolved in such a manner so as to advance the dictates of justice as well as the rule that justice not only should be done but it should seem to have been done. The last mentioned principle is enshrined as much in the Islamic jurisprudence as in any other juridical system. It may also be clarified that if need would have arisen to further rely on Article 2-A of the Constitution so as to give effect to the Objectives Resolution treating the right to obtain justice as a very important substantive part of our entire Constitutional set up as well as the Constitution itself, we would have of course done it.
20. ' There shall be no order as costs.