' NASIRUL MULK, J.---The subject-matter of this writ petition is the exercise of judicial powers by the Deputy Commissioner, Sawat, under the Shari Nizam-e-Adl Regulation, 1999 (N.-W.F.P. Regulation No,1 of 1999) hereinafter called the Regulation.
2. The background in which the petition has been filed is that the petitioners, Sultanat Khan and Farooq Khan, who are tenants of a shop owned by Muhammad Ibrahim and Arshad Hussain respondents Nos.5 and 6 herein, were summoned by the Deputy Commissioner, Swat, respondent No,1, by a verbal message through his Naib-Court on 5-6-1999. The petitioners alleged that on their appearance before the Deputy Commissioner, it was disclosed to them that respondent No,6, one of the landlord had submitted an application for ejectment of the petitioners from the shop. The application, which has been filed with the writ petition and the submission of which has been admitted by respondent No,1 in his written statement, is for ejectment of the petitioners from the shop and recovery of arrears of rent for the preceding 20 months at the rate of Rs,1,700 per month.
The petitioners claim that they requested respondent No,1 for time to submit reply but no such opportunity was provided and that they were kept in custody till 5.15 p.m. In the premises of the office of respondent No,1 and that on account of this pressure the petitioners were compelled to sign an agreement with the landlord (Annexure 'B', dated 5-6-1999) under which the petitioner undertook to vacate the shop by 5-10-1999 and to pay rent at an enhanced rate. These allegations, however, were denied by respondent No,1 in his written statement, who pleaded that the agreement was arrived at between the parties without coersion and that he had exercised his authority as Deputy Commissioner of the District "to ensure amicable resolution of dispute with the consent of the parties and ensure maintenance of peace between them." Respondent No,1 recorded the proceedings in order sheets which is Annexure 'C'. There are only two order sheets one, dated 5-6-1999 and the other, dated 7-6-1999. According to the first, the plaintiff and the defendant had appeared and that they had entered into compromise, placed on file. The case was adjourned to 7-6-1999 for implementation of the terms of the agreement. On the adjourned date the defendants (tenants) are stated to have appeared and had duly produced the receipt for the payment of rent at the rate of Rs,1,800 per month, the rate as enhanced by respondent No,1, for the past 15 months and thereafter, the case was adjourned to 5-10-1999 for delivery of possession of the shop to the landlord. Thus, respondent No,1 had not only passed an order of ejectment but had started its execution. However, before the date, fixed for handing over possession of the shop the petitioner filed the present writ petition challenging the entire proceedings conducted by respondent No,
1. The writ petition was admitted to full hearing and further proceedings before respondent No,1 were suspended.
3. In his written 'statement, respondent No,1 sought to defend the impugned proceedings on the basis of the duty, responsibility and authority imposed and conferred upon the District Magistrate to establish Amn and to work for sadd-e-zarai a-e-Janayah under section 9(3) of the Regulation, read with the memorandum, dated 28-4-1999 addressed by the Commissioner Malakand Division to the Deputy Commissioner/P.As. In Malakand Division.
4. Mr. Sher Muhammad Khan, Advocate appearing for the petitioners pointed out that the dispute between the landlord and tenant was within the exclusive jurisdiction of the Rent Controller and that the shop in question is situated within the bounds of Municipal Committee, Mingora, District Swat which is a notified Urban Area for the purpose of West Pakistan Urban Rent Restriction- Ordinance, 1959. In this context reference was made to the case of Rahmani Gul v. Rent Controller (1987 SCM R 866). The learned counsel then referred to the preamble section 2(1)(a), section 5(1) read with Schedule II and section 9 of the Regulation and argued that under the Regulation judicial powers can be exercised by Courts established under the Regulation which did not include the Deputy Commissioner. He, therefore, submitted that the exercise of judicial powers by the Deputy Commissioner was totally without authority.
5. The learned Additional Advocate-General Mr. Imtiaz Ali representing respondent No,1 candidly conceded that respondent No,1 had acted withuot authority as he had exercised judicial power not conferred upon him by the Regulation.
6. The learned counsel for the respondents Nos.5 and 6 Mian Iqbal Hussain, Advocate, however, argued that the Deputy Commissioner had the authority under section 9 of the Regulation to take steps for bringing about amicable settlement to ensure maintenance of peace. It was maintained that the petitioners have voluntarily entered into an agreement which was duly registered and, therefore, are estopped from questioning the agreement.
7. The Regulation, which replaces the Provincially Administered Tribal Area Nifaz-Nizam-e-Sharia Regulation, 1994, was made by the Governor of N.-W.F.P. With the prior approval of the President, in exercise of the powers conferred upon the Governor under clause (4) of Article 247 of the Constitution of the Islamic Republic of Pakistan to provide for Nifaz Nizam-e-Sharia through Court in the Provincially Administered Tribal Area of Malakand Division and the Tribal Area of Kohistan District of N.-W.F.P. (The underlining is ours). Section 2(1)(a) defines Courts to mean "A Cout of competent jurisdiction designated as such under the Regulation." Section 2(1)(d) defines judicial officer as an officer specified in column 2 of Schedule II of the Regulation. Section 5 prescribes the powers and functions of the Courts and Judicial Officers which reads as under:-- "(5) Courts, Judicial Officer, and their powers and functions.--(1) In relation to proceedings with and conducting the criminal civil cases, all powers, function and duties conferred, assigned or imposed on Judicial Officers in the North-West Frontier Province under any law for the time being in force, shall, subject to application of such law in the said area and established principles of Shariah, be exercised, performed or discharged by them as designated in column 3 of Schedule II."
8. Schedule II of the Regulation provides the list of Judicial Officer, alongwith their new designations, who alone can exercise powers in criminal as well as civil cases in the Area. These are District and Sessions Judges, Additional District and Sessions Judges, Senior Civil Judges or Magistrate under section 30 of the Criminal Procedure Code 1998 and Civil Judges or Magistrate, who are respectively redesignated as Zilla Qazi, Izafi Zilla Qazi, Aala Illaqa Qazi and Illaqa Qazi.
9. The preamble of the Regulation declares that the Nifaz-Nizam-eShariah is to be enforced through Courts. The Courts and the Judicial Officers presiding the Courts who can exercise judicial, civil and criminal powers, under the Regulation are those mentioned in Schedule II of the Regulation. The Deputy Commissioner of a District is not included in Schedule II and, therefore, has no authority to try any civil or criminal case. Respondents Nos.5 and 6, the landlord had applied to respondent No,1 for eviction of the petitioner as well as for recovery of enhanced rent. There is no doubt that the matter fell within the exclusive jurisdiction of the Rent Controller under the West Pakistan Urban Rent Restriction Ordinance. There is some controversy as to whether the Rent Controller is to follow the procedure under the West Pakistan Rent Restriction Ordinance or that prescribed by the Regulation. That controversy has no bearing on the present case because undoubtedly the Deputy Commissioner has no powers under the West Pakistan Urban Rent Restriction Ordinance.
10. In his written statement, respondent No,1 has pressed into service section 9(3) of the Regulation which reads:-- "(3) It shall be the duty, responsibility and authority of the District Magistrate to establish Amn and to work for Sadd-e-Zaria'a-eJanayah, and, for this purpose, may take action against a person, a section of persons or community of a locality in accordance with the concept of collective responsibility subject to the established principles of Shariah."
Explanation (i) to the section provides that the expression "Sadd-eZarai'a-e-Janayah' shall include all steps and measures taken in accordance with Sahriah and any law for the time being in force for prevention of crimes. The steps taken therefore must be in accordance with Shariah and the law, with the further proviso that such steps must be for the prevention of crimes. By incorporating the word "and" between "Shariah" and "law", the legislature intended that two words shall be used conjunctively to that only such steps can be taken for Sadd-e-Zarai'a-e-Janayah as are in accord with Shariah and the law. As stated above, the exercise of judicial powers by respondent No,1 was in violation of the Regulation as well as the West Pakistan Urban Rent Restriction Ordinance. Even if "Shariah" and the "Law" is used disjunctively the steps taken by respondent No,1 were not in accord with the Regulation because the impugned proceedings were not administrative but purely judicial and according to the preamble of the Regulation the Nizam-e-Shariah is to be enforced through the Courts and the Deputy Commissioner, as held above, is not a Court under the Regulation.
Furthermore, judicial powers are always conferred expressly by legislature and not by inference.
Such inference cannot be drawn particularly in the present case when the Regulation has made express provisions for the exercise of judicial powers. Looking at it from any angle respondent No,1 had no legal authority to exercise judicial powers in the garb of the provisions of section 9(3) of the Regulation.
10. For taking cognizance of the application submitted by respondents Nos.5 and 6, respondent No,1 additionally relied upon the memorandum issued by the Commissioner, Malakand Division No,9948-54, dated 28-4-1999. Copy of the memorandum was not annexed with the written statement of respondent No,1 but was produced in Court by the Additional Advocate-General. It seem that respondent No,1 started exercising judicial powers after receipt of the memorandum. We were informed that more than hundred cases have been entertained by respondent No,1 and pending adjudication before him or assigned by him to officer subordinate to him for disposal. The contents of the memorandum are relevant and are reproduced here, "The main purpose of the Shar'i Nizam-e-Adl Regultion is to provide fair, quick and inexpensive justice to the public. To minimise the work load/pendency in different Courts, it is essential that the public grievance are redressed outside the Court also. For the purpose, the following measures need be adopted at your end:--
(1) All the complaints received by the administrative officers should be marked to the concerned Police Station where the parties to the dispute should be summoned on a fixed/particular date and they be asked by the Assistant Commissioner/Magistrate concerned for settlement of the dispute in question through elders of the area.
(i) All the Assistant Commissioners/Executive Magistrate should visit the Police Stations falling within their jurisdiction on the dates fixed by them for the purpose for settlement of the dispute as mentioned at para.(1) above.
(iii) Weekly as well as monthly meetings are held to monitor the progress of the disputes/issues settled/resolved outside the Courts. The progress of criminal/civil cases pending in different Courts in your District/Agency be mentioned and intimated to this office on regularly basis so that the pendency in various Courts could be minimized to the possible extent."
11. A perusal of the memorandum shows that through it a parallel judicial system for adjudication of disputes was being created. The directions given in this memorandum have no backing of the law.
To start with, the Regulation does not authorise the Commissioner to give directions in the nature mentioned in the memorandum. Even the contents of the memorandum contravene the express provisions of the Regulation. The opening sentence of the memorandum reveals that this alternative mode of adjudication was considered necessary in order to minimise the work load and pendency in different Courts already functioning as the purpose of the Shari Nizam-e-Adl Regulation was to provide fair, quick and in expensive justice to the public. Thus, the Commissioner through an administrative order purported to create new forum for adjudication of cases, which under the Regulation could only be tried by Courts established under section 5 read with Schedule II of the Regulation. Even if the directions in the memorandum were not inconsistent with the Regulation, the Commissioner had no lawful authority to create forums and prescribed procedure for resolution of dispute. Additionally, though providing quick and inexpensive justice is a laudable object, but contrary to the view of the Commissioner, the express declared purpose of the Regulation is enforcement of Shariah in Malakand Division.
12. Another aspect of the memorandum in question is that it allows executive officer to exercise judicial powers. This negates the very spirit of the Regulation which in its preamable has, while stating that certain laws which are in accordance with the Injunction of Islam are essential for its application in Malakand Division for the proper enforcement of Nizam-eShariah, applied 29 statutes listed in Schedule I, one of which is the law Reform Ordinance, 1972 (Ordinance XXII of 1972), which provides for separation of Judiciary from the Executive. One may also refer to the landmark judgment of the august Supreme Court of Pakistan in the case of Government of N.-W.F.P. v.
Muhammad Irshad (PLD 1995 SC 281) where the Court struck down as unconstitutional the Provincially Administered Tribal Area Criminal Law (Special Provision) Regulation No,1 of 1975 and Provincial Administered Tribal Area Civil Procedure (Special Provision) Regulation II of 1975 on the ground, inter alia, that the Regulations violated Article 175(3) of the Constitution, which provides for separation of Judiciary from the Executive, as the two Regulations had conferred judicial powers on the executive. The two Regulations that were struck down were in force in Malakand Division and, thus, the august, Supreme Court invoked Article 175(3) notwithstanding the Malakand Division was a Provincially Administered Tribal Area for which the Legislature is the Governor who exercises his powers with the prior approval of the President under Article 247 of the Constitution. Thus, the Commissioner had acted without authority in issuing the memorandum, dated 28-4-1999, which is, therefore, declared a nullity in law and the directions given therein shall not to be followed.
13. For the reasons aforementioned, we have no hesitation in holding that the Deputy Commissioner had no lawful authority to exercise judicial powers. Consequently, the writ petition is allowed and the impugned proceedings are set aside as having been passed without lawful authority. For the redressal of their grievance, however, respondents Nos.5 and 6 are at liberty to approach the competent Court of law. There shall be no order as to costs.