1. ' SAEEDUZZAMAN SIDDIQUI, J---The petitioners are seeking leave to appeal against the order of Peshawar High Court dated 22-3-1992. By the impugned order the learned Judges of Peshawar High Court dismissed Writ Petition No,463 of 1992 filed by the petitioners to challenge the orders of respondent No,1 dated 19-1-1992 and that of respondent No,3 dated 31-1-1990.
2. ' The proceedings in the case were initiated on the application of respondent No,4 for drawing up boundary line between Villages Banda Payeen and Namseer which fell within the Mahals of petitioners and respondents 4 to 9. The case was initially entrusted to Tehsildar Khall for resolving dispute and on his failure a Jirga was constituted in the case in accordance with provisions of Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation No,II of 1975 (hereinafter to be referred as Regulations) to adjudicate upon the dispute. The Jirga constituted in the case, accordingly, proceeded to record evidence in the case. However, when the proceedings were drawing to a close, the petitioners objected the presence of one Qadar Khan as member of Jirga constituted in the case. The trial Court repelled the objection raised by the petitioners with regard to the presence of Qadar Khan in the Jirga and the decision of the trial Court was upheld in appeal. However, on a revision application filed by the petitioners, the case was remanded by respondent No,1 by his order dated 9-1-1989 to respondent No,3 with the direction to constitute a fresh Jirga in the case and after framing proper issues and ascertaining whether all the necessary parties were arrayed in the case or not, for decision according to law. In pursuance of the remand order, a fresh Jirga was constituted and on the basis of evidence recorded in the case the suit filed by the petitioners was dismissed by the Assistant Commissioner, Wari, by his order dated 31-1-1990.
3. On appeal the Additional Commissioner II, Malakand Division, set aside the above order of A.C., Wari, and remanded the case to the trial Court with direction to refer the suit to a fresh Jirga which should decide the case strictly in accordance with the directions contained in the order of respondent No,1 dated 9-1-1989. The order' of Additional Commissioner, dated 30-4-1991, remanding the case to trial Court was challenged by respondents 4 to 9 in a revision before respondent No,1 which was accepted by order dated 19-1-1992 and the order of the appellate Court was set aside and that of the trial Court was restored. The above order of respondent No,1 dated 19- 1-1992 was challenged before the High Court in a writ petition which was dismissed by the impugned order giving rise to the present petition.
4. ' The learned counsel for the petitioners contended before us that the learned Judges of High Court failed to take into consideration that in the order of remand dated 9-1-1989 passed by respondent No,1, the trial Court was directed to frame fresh issues and decide the case in accordance with law.
5. According to learned counsel this specific direction of respondent No,1 was not followed by the trial Court which vitiated the entire proceedings taken in the case after the order of remand dated 9-1- 1989. Reliance was placed in this regard before the High Court on paragraph 4 (1) of the Regulations but the learned Judges of High Court repelled the contention on the ground that the direction contained in the order dated 9--1-1989 regarding framing of issues was not mandatory but only directory. It is conceded before us by the learned counsel for the petitioners that the order of remand dated 9-1-1989 passed by respondent No,1 in the case was based on a written agreement arrived at between the parties before respondent No,1. Respondent No,1 in his order dated 19-1-1992 made following observations with regard to remand order dated 9-1-1989:-- "From the written agreement arrived at between the counsels for the parties, it is revealed that they had consented that a fresh Jirga be appointed to decide the case on the evidence already recorded in the case and that no fresh evidence whatsoever would be produced by either party.
6. The issue therefore stands very clear. The counsels for the parties consented that the case should be entrusted to a fresh Jirga to decide the case on the evidence already recorded and that no fresh evidence whatsoever would be produced by either party. In the presence of this agreement, the learned Addl. Secretary, Home remanded the case back to the trial Court on 9-1-1989. Other directions contained in the order of learned Addl. Secretary, Home dated 9-1-1989 seems to be directory in nature. The trial Court in compliance with the order of the Addl. Secretary constituted a fresh Jirga which decided the case on the evidence already recorded in the case."
7. The learned counsel for the petitioners does not dispute the correctness of the above observation made in the order of respondent No,1, dated 19-1-1992. In view of the fact that the trial Court was to decide the case on the basis of evidence on record, the omission to frame fresh issues in the case neither resulted into miscarriage of justice nor caused any prejudice to the case of the petitioners.
8. The learned counsel for the petitioners is unable to point out any misreading of evidence by the trial Court or any illegality committed in the conduct of proceedings in the case by the trial Court.
9. No case for interference is made out. Petition is, accordingly, dismissed. Leave is refused.