MUHAMMAD BASHIR JEHANGIRI, J.~ This appeal with the leave of the Court is directed against the dismissal of Writ petition No. 1663 of 1997 on 6.11,1997 by a learned Division; Bench of the Peshawar High Court, Peshawar, filed by the appellants against the respondents to challenge the decision of the forums under Provincially Administered Tribal Areas Civil Procedure (Special Provisions)
Regulation (NWFP Regulation II of 1975) (hereinafter called as the Regulation).'
2. The brief facts forming the background of this litigation is that Abbas Khan and other respondents instituted a suit against Jannat-ul-Haq and other appellants for declaration of their title to the disputed land. The EAC, Dir, empowered as deputy Commissioner, under the PATA '
Regulation, took cognizance of the suit and referred it to "Jirga" but as. The question of limitation was not decided, the Trial Court did not agree with the findings. After recording evidence on the question of. Limitation and holding that the suit was within time, the matter was again referred to 'Jirga'. This time to members of the 'Jirga' returned a split verdict but the Chairman agreeing with 'one of the Members decreed the suit of the respondents on 14.3.1991, The appeal filed thereagainst by the appellants before the Additional Commissioner, Malakand, and the revision before the Additional Secretary (Judicial), in the Home and Tribal Affairs Department, Government of NWFP by the appellants were dismissed.
3. Feeling dissatisfied the appellants' challenged the aforementioned decisions under the Regulation in Writ Petition No. 1662 of 1997. The learned Division Bench of the Peshawar High Court, which was seized of the matter, held that the matter had been rightly referred to the 'Jirga' under the Regulation which was then in force and had been decided by the trial Court in accordance with the majority verdict of the 'Jirga'; that the EAC, Dir, empowered as Deputy Commissioner, had acted in accordance with the majority verdict of the 'Jirga' and had .Thus not acted either without jurisdiction or in excess thereof. It appears that the learned counsel for the appellants "seemed to be aggrieved o/ the fact that the Trial Court, while agreeing with the majority verdict of the 'Jirga' had not furnished any reason for his disagreement". The learned Division Bench held the opinion that "in fact and also in law, the matter having once been referred to the 'Jirga', it is the 'Jirga' who becomes vested with final authority to decide it one way or the other". It was also pointed out in the impugned judgment that once the majority verdict was returned and the Trial Court had expressed its agreement therewith -but if it had not furnished reasons therefor it would not vitiate the judgment itself because the reasons were already furnished in the verdict itself. According to the learned Judges of the Division Bench, the reasons, if St all necessary, would have been required to be given only if the Trial Court had disagreed with such verdict and that the latter situation had neither ensued nor had cropped up in the present case. With these observations, the learned Division Bench of the High Court reached the conclusion that, all the forums constituted under the Regulation had acted within their jurisdiction and rightly so, because the majority award was in favour of the respondents and thus dismissed the writ petition in limine.
4. Leave to appeal was granted by this Court to consider the following contentions raised by the learned counsel tor the appellants.
"(a) That according to the law declared by the majority of the learned Judges of the Supreme Court in the ease of Government of NWFP (PLD 1995 SC 2817), only these cases under PATA Regulation No. II of 1975-were saved which had already finally concluded as against the view expressed by one of the learned Judges that the cases decided by Jirga would not be affected by the said judgment, as such, in a case decided by Jirga during the interim order passed by the Supreme Court where appeal was pending before the Additional Commissioner, the same was not saved as in such a case, it was not a case which had already finally concluded as contemplated by the. Law declared by the majority of the Judges which according to law is the judgment on the point as such on 24.2.1994 when the judgment by the Supreme Court was pronounced, in the said case, the award of Jirga and the order of EAC Dir, confirming the same alongwith the appeal, stood abated as on the filing of appeal, the entire case stood reopened and was to be deemed to be pending;
(b) That declaration by the High Court or the Supreme Court that a particular law was void on account of being repugnant to any of the fundamental rights does not have the legal consequences of repeal of the same as such the principles as contained in section 6 of the General Clauses Act would not be attracted;
(c) That once a law had been declared void being repugnant to any of the fundamental rights, the repeal of the same with provisions of saving pending proceedings and continuation of the same to decide thereunder would amount to revival of such law and continuation of the same which is not permissible.
(d) That the majority judgment of the Supreme Court used expression "cases already finally concluded" which had different meanings as against the term "case decided by Jirga" as used by the learned one Judge. In this view of the matter, according to the majority-judgment of the Supreme Court, only those cases were saved in-which no proceedings under the said Regulation was pending before any authority created thereunder against the decision of Jirga as in such a case, it would not be a case in which could be said that the same had already stood finally concluded. The fact that the Federal Shariat Court while declaring that a law was repugnant to Injunctions of Islam and Sunnah under the Constitutional Mar date is also required to fix the date in future from which the said declaration was to take effect and such law would tease to he the law from that date'* which clearly shows that the intention,"of the Constitution was that the said declaration was to operate prospectively, therefore, the interpretation in Rozi Khan's case (supra) of the relevant law in the light of the such provisions would not be attracted in this case."
5. Mr. Saeed Baig, learned ASC representing the appellants, contended that on 24.2.1990, a learned Division Bench of the Peshawar High Court on a number of writ petitions filed by the appellants therein had annulled, inter alia, the impugned provisions of the Regulation, as amended, providing procedure for settlement of disputes as violative of Article 25 of the Constitution and as such, the 'Jirga' under the said Regulation had ceased to exercise jurisdiction over the disputes involved in one of the writ petitions therein and directed that the same be transferred to a Civil Court of competent jurisdiction.
6. It appears that the validity of the impugned decision in the six matters was challenged before this Court in separate six appeals which were dismissed on 24.2.1993 by .a Full Bench of this Court comprising of five learned Judges and was reported as Government of NWFP through Chief Secretary and another v. Muhammad Irshad and 3 others (PLD 1995 SC 281). The Bench in effect "declined to interfere with the unanimous opinion of the High Court that the Regulations are not pieces of valid law though on different grounds". All the appeals were thus dismissed with costs. It was, however, added that the judgment shall not "affect cases, both criminal and civil, which have since been- disposed of by the Jirgas( constituted under the Regulations". It was thus concluded that "this decision in the cases shall not affect cases already concluded finally".
7. Mr. Saeed Baig, learned ASC, contended on the authority of Gulzar. Hassan, Advocate and 8 others, v. Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, States of Frontier, Government of Pakistan, Islamabad and 3 others (PLD 1975 Lahore 1219) that the effect of the annulment of the Regulations was that the proceedings of the suit initiated before PATA Court and culminating in the impugned order passed in the writ petition were, of no legal consequence and therefore, the appellants could file a civil suit afresh in a competent Court of law and jurisdiction. Reference was made in this context to Article'264 of the Constitution of Islamic Republic of Pakistan, 1973 and Section 6 of the General Clauses Act (X. Of 1897). The learned counsel then submitted that the appeal before the relevant forum under the Regulations shall be taken as continuation of-the proceedings thereunder.
8. Qazi Muhammad Anwar, learned Sr. ASC appearing on behalf of the respondents contended that the rights of the parties to a suit are to be adjudicated on the basis of law prevailing at the time of its institution. Reliance in this context was placed on Pakistan through General Manager, P.W.R., Lahore v. Mrs. A.V. Issacs (PLD 1970 SC 415) and Kundal Khan v, Agha Jan (PLD 1990 Peshawar 21).
The ratio of the case of Kundal Khan (supra) is that the judgment would be considered final only if it determines the rights of the parties and disposes of all the issues by the Court in order to settle and determine the entire controversy. It was observed that in Kundal Khan's case (supra) the cases of appeal in which rights of pre-emption Were claimed on the grounds enumerated in Section 6 of the NWFP Pre-emption Act, 1987 (Act X of 1987) were to continue and were saved from the abatement and that the said Act was operative prospectively and not retrospectively. What the learned counsel for the respondents had urged is that notwithstanding the annulment of Regulations up to this Court, the decisions of the Courts constituted, under the Regulations upto their ultimate revisional forum remained unaffected by both the judgments of the learned Peshawar High Court and also of this Court.
9. Before proceeding further, it would be appropriate to reproduce Article 264 of the Constitution of Islamic Republic of Pakistan,' 1973, Section 6 of the General Clauses Act (X of 1897) and section 35 of the NWFP Pre-emption Act (X of 1987):- " Article 264 of the Constitution: Effect of repeal of Laws: - Where a law is repealed, or is deemed to have been repealed, by, under, or by' virtue of the Constitution, the * repeal shall not, except as otherwise provided in the Constitution:--
(a) revive anything not in force of existing at the time at which the repeal takes effect;
(b) affect the previous operation of the law or anything duly done or suffered under the law;
(c) Affect any right, privilege, obligation or liability acquired, accrued or incurred under the law;
(d) affect any penalty, forfeiture or punishment incurred in respect of any, offence committed against the law; or
(e) affect any investigation, legal proceeding so remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; - and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and' such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed.
Suction 6 of the General Clauses Act: Effect of repeal- Where this Act, or any (central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be. made, then, unless a different intention appears, the. Repeal shall not:--
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) Affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment or repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against by enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability,, penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such" penalty, forfeiture or punishment may be imposed as if the repealing Act of Regulation had not been passed. "
10. The case in had, prima facie does not, therefore, appear to be covered by the provisions of Article 264 of the Constitution of Islamic Republic of Pakistan, 1973, inasmuch as it covers the- implication of only -the repeal of a law, but it does not include the phrase "deemed to have been repealed". But precisely the case in had is of. The implication of the annulment of a law by the competent Court like the High Court and this Court. The recent precedent of Rozi Khan and others v.
Syed Karim Shah and others (1992 SCMR 445) has provided some guidance to resolve this controversy. Although it also involves interpretation of the NWFP Prec' emption Act, 1950 (NWFP Act XIV of 1950 but the expression employed in the judgment of this Court in Muhammad Irshad's case (supra) and that in Section 35 of the NWFP Pre-emption Act,(X of 1987) are in para materia. In this context, it would. Be advantageous to reproduce hereunder Section 35 of the NWFP Pre-emption Act (X of 1987)-- / "35. Repeal. (1) The North-West Frontier Province Pre-emption Act, 1950 (N.W.F.P. Act XIV of 1950) is hereby repealed.
(2) In the cases and appeals filed under the law referred to in sub-section (1) in which judgments and decrees passed by the Courts have become final, further proceedings if any relating to such cases, and appeals, shall notwithstanding the repeal of such law be governed and continued in accordance with the provisions thereof.
(3) All other cases and appeals not covered under sub-section (2) instituted under the law, referred to in sub-section (1) and which immediately before the commencement of this Act were pending before a Court shall stand dismissed.' except those in which right of pre-emption is claimed under the provisions of this Act."
11. It may be clarified at the outset that the expression "cease to, have effect" occurring in Article 264 ibid is only concerned with and relatable to the effect of repeal of laws and deals with the Situation of a law being expressly "repealed" or "deemed to have been repealed" by, under, or by virtue of the Constitution. In point of law, the words "cease to have effect" are not synonymous with "repeal".
12. Another significant aspect in this context is that right of repeal being inherent in legislature alone, any change of law including its annulment otherwise than by legislation would not constitute "repeal" as to protect' any right, obligation acquired, accrued or incurred under an annulled law. Similarly operation of a law declared to be repugnant to the Injunctions of Qur'an and Sunnah or 'anything done or suffered thereunder -before a specified date or continuation of suits pending on the specified date also does not amount to the repeal of law. There is a fine distinction between both the aforesaid eventualities insofar as their respective implications are concerned.
The implication of the expression "ceases to have effect" occurring in Article 203-D regarding Islamisation of laws would be that special methodology in its post declaration juncture to be repugnant to Injunctions of Qur'an and Sunnah is provided therein. It is, therefore, concluded that Article 264 of the Constitution which governs the implications of repeal of law would not be attracted to the laws which are declared to be void on ground of their being violative Of fundamental rights enshrined in the Constitution as is the case in had. The Court seized of such matters is to provide the solutions to the implications. This Court has accordingly provided the solutions to the various stages of the litigation under Regulation II ibid, and rightly so, and that is that if the case has been decided by the Court of a plenary jurisdiction and even in the Appellate Court it would be final and would not generally warrant its re-opening. In the instant case, even revisional Court under the Regulation II and the learned High Court in its Constitutional jurisdiction have reached the conclusion that the annulment of Regulation II by this Court would not legally imply that the impugned judgments in the case in had had been nullified.
13. The expression "this section envisages pendency of appeals and cases against the judgments and decrees which have become final" occurring in the case of Ghulam Sarwar v. Abdul Jalil (PLD 1991 SC 500) came up for finding out the true meaning of word 'final'. In this context this Court in the case of Rozi Khan (supra) had reproduced the relevant ratio of the case of Ghulam Sarwar (supra) which is to/the following effect:-- "An order may be final, if it determines the rights of the parties concludes the controversy so far as a particular authority or forum is concerned notwithstanding that such an order may be open to challenge in appeal etc." (underlining is ours)
14. The learned Judges of this Court in Rozi Khan's case were inclined to hold that the words "judgments and decrees passed by the Courts have become final" occurring in sub-section (2) of Section 35 of the NWFP Act (X of 1987) mean "those judgments and decrees wherein the' suit of the pre-emptor has been decreed by the Courts rendering it". In this sense; it was pointed out that this Court has always understood and consistently expounded the concept of finality in Pre-emption Statutes on this premise and referred to the case of Sardar Ali v. Muhammad Ali (PLD 1988 SC 287 at page 354). It was, therefore, concluded that the effect of the expression would be that a decree in favour of the, plaintiff/pre-emptor decreeing the suit for pre-emption "which had already been passed and appeal against it was pending, "which is a further proceeding relating to the case in which the decree was passed" the said further proceedings shall be governed and decided under the provisions of the old Act (NWFP Preemption Act, 1950). Similarly if a final judgment ."decreeing the suit of the plaintiff/pe-emptor" had been passed before the aforesaid date and the said judgment was being challenged before the Appellate Court, revisional, Court or the High Court in- its writ jurisdiction, such proceedings to shall be governed by and decided under the provisions of old law.
15. The perusal of the grounds of the writ petition filed by the appellants before the High Court would reveal that the contention whether the annulment of the Regulation by the High Court and affirmed by this Court would nullify the subsequent entire proceedings of the Court constituted under the Regulation or the Writ jurisdiction of the High Court was. Not raised at all before the High Court. It is for the first time in this Court that this contention has been raised. In the High Court, the grounds raised substantially challenged the impugned judgment of the Courts constituted under the Regulation II purely on factual plane not a semblance of what has been challenged in this Court is made discernible in the writ petition. It is for the first time in this Court that on the strength of the precedent of Muhammad Irshad (supra) it was submitted that when the Regulation II had been held to be a void law, the. Additional Commissioner and the Home Secretary had no jurisdiction to hear and dispose-of the appeal and the revision. The learned counsel was, therefore, questioned in that behalf to show if he could possibly urge the main ground before us that the Regulation having been annulled by the learned Peshawar High Court duly affirmed by this Court in those proceedings implied the re-opening of the case but he could not furnish any satisfactory answer. In any event the last mentioned contention had not been urged in the High Court and so the same cannot be considered in these proceedings as the jurisdiction of-this Court in that behalf would be concurrent with the jurisdiction of the High Court. This ratio lends support from an earlier precedent of this Court in the case of Baz Din and another v. President, Special Military Court No. 7 and others (1979 SGMR 541).
16. We, therefore, feel satisfied that the judgment of the High Court is unexceptionable and consequently the appeal in had having no substance stands dismissed. But in the circumstances of the case, the parties are left to bear their on costs.