1. WALI MUHAMMAD KHAN, J.-- In the instant Criminal Appeal, leave to appeal was granted to consider whether in view of the provisions of section 13 of PATH Regulation II of 1975 read with Order XXXK Rule 2 sub-rule (3), C.P.C., the appellant who is alleged to have disobeyed the order of the Assistant Commissioner exercising powers of a Deputy Commissioner, Dir dated 28-6-1989 can be proceeded against under section 188, P.P.C.
2. The brief facts of the case are that respondents 1 to 5 herein filed a suit of civil nature in the Court of Assistant Commissioner, Dir under PATA Regulation. No. II of 1975 against the appellants to the effect that they are owners to the extent of 1/4 share in the suit land and that the defendants appellants be ,restrained from cultivating the suit land till partition thereof along with the plaint an application for the issuance of temporary injunction was also filed whereupon the Assistant Commissioner, Dir issued temporary injunction subject to notice to the appellants. Soon thereafter, the plaintiffs/respondents submitted an application for taking action against the appellants for the violation of the temporary injunction issued by the Court under the penal provision of section 188, P.P.C. The matter was referred to S.H.O. Gandigar for enquiry and report who later on, under the direction of the Court who registered the case vide F.I.R. No.40 dated 5-7-1989 against the appellants. The appellants aggrieved from the registration of the case moved the Peshawar High Court for quashment of the proceedings under section 561-A of Cr.P.C. But the same was dismissse d vide the impugned order dated 25-11-1989. Hence the instant appeal through the leave of the Court.
3. We have heard Syed Rafaqat Ali Shah learned counsel for the appellants. A special procedure for the adjudication of disputes of matters of civil nature within the Provincially Administered Tribal Area of Chitral, Dir, Swat and Malakand Protected Area was provided for through PATH Regulation II of 1975, whereby the Deputy Commissioner or any officer exercising or performing any power or function of the Deputy Commissioner under the said Regulation, on an application made to him in writing has to constitute a Tribunal in accordance with section 5 of the Regulation ibid and refer the case for a finding on such matters or issues as may be specified in the order. On the-receipt of the verdict of the Tribunal, the Deputy Commissioner' passes a decree in accordance with such finding which is appealable to the Commissioner and revisable by the Government. Section 13 of the Regulation provides for the execution of decrees and orders passed by the Deputy Commissioner and it would be worthwhile to reproduce the same for ready reference: "13. Execution and enforcement of decree or order.--(1) Subject to the provisions of this Regulation, a decree or order passed by the Deputy Commissioner shall have the same force and effect as if it were a decree or order passed by a competent Civil Court and shall be enforced by the Deputy Commissioner in the same manner as such decree or order would have been enforced by such Civil Court.
(2) Every order made by the Commissioner in the exercise of his powers under section 11 or by Government in the exercise of its powers under section 12 shall be enforced as if it were an order of the Deputy Commissioner, and the Deputy Commissioner shall do all acts' and things necessary to give effect thereto."
4. Admittedly, the Deputy Commissioner passed the ad interim injunction order before reference of the dispute to the Tribunal, but it is not the case of the appellants before us at the moment that the Deputy Commissioner had no jurisdiction to pass the said order. It is apparent from the reading of section 13 above that it caters for the execution of decrees and orders passed by the Deputy Commissioner and the plaintiffs/respondents could avail of this remedy by invoking the powers of the Deputy Commissioner to proceed against the appellants under Order XXXIX, Rule 2, sub-rule(3) of the Civil Procedure Code which provides a specific remedy in case of disobedience of breach of any term of injunction granted by the Court under Order XXXIX. No doubt the provisions of Civil Procedure Code do not apply to the proceedings under PATA Regulation at the trial stage but while enforcing the decree or order under section 13, the Deputy Commissioner is empowered to execute it in the same manner as such decree or order would have been enforced by Civil Court. Since the manner of execution of decrees and orders of Civil Courts is provided in the Code of Civil Procedure, the Deputy Commissioner in execution of decree or order can apply the provisions of the Civil Procedure Code relating to the execution of decrees and orders.
5. Section 188, P.P.C. Is a penal provision and the application of Criminal Procedure Code has been done away with to the areas falling within the' jurisdiction of PATA Courts vide Provincially Administered Tribal area Criminal Law (Special Provisions) (Regulation I of 1975) and under section 4 thereof, the Deputy Commissioner has been invested with special jurisdiction to take cognizance of offences triable thereunder. In criminal matters too, the Deputy Commissioner shall refer the question of guilt or innocence of the accused to a Tribunal to be constituted under section 6 of the Regulation ibid. In the instant case we have decided not to embark upon the controversy whether in exceptional cases application of 188, P.P.C. Can be resorted to for punishing disobedience of the decrees and orders passed under PATA Regualtion I of 1975 or not because in the present case the disobedience, if proved can sufficiently be punished under the provision of Order XXXIX, Rule 2, sub- rule (3) of the Civil Procedure Code which was the appropriate remedy provided for in section 13 of the Regulation itself. The learned Single Judge of the Peshawar High Court has ignored the relevant law on the subject and in consequence the impugned order is liable to be set aside.
6. Resultantly, by accepting the instant appeal, the order dated 25-11-1989 passed by the Peshawar High Court is set aside and the criminal proceedings initiated against the appellants vide F.I.R.
7. No.40 dated 5-7-1989 are quashed and the trial Court is directed to proceed against the appellants under section 13 of the PATA Regulation II of 1975 read with Order XXXIX, Rule 2, sub-rule (3), C.P.C.
8. M.B.A./M-1595/S