' This revision petition was admitted to regular hearing on 30-3-2001 so as to consider the contention of the learned counsel for the petitioner that the Appellate Court of District Judge/Zilla Qazi, Malakand, who was seized of the matter respecting interlocutory order, has granted decree in respondent's favour on original side and the guaranteed right of appeal to the aggrieved party has been taken away. Moreover, the question of the correct interpretation and application of sections 6 and 7 of the Shari Nizam-e-Adl Regulation, 1999 (N.-W.F.P. Regulation No,1 of 1999) (hereinafter called as the Regulation) was also involved in the case.
2. Brief facts of the case are that Rozi Muhammad, respondent, filed a pre-emption suit against the petitioner in the Court of Aa'lla Illaqa Qazi, Malakand, which suit of the respondent was contested by the petitioner by filing written statement. The learned Illaqa Qazi (trial Court) before framing of issues asked the parties for referring the case to the Muslih as per section 7 of the Regulation but both the parties refused to go for mediation before the Muslih. However, later on with the consent of both the parties the matter was referred to Muavin-e-Qazi for resolution. The Muavin-e-Qazi had not yet submitted their report to the trial Court when the petitioner submitted an application to the Illaqa Qazi showing therein his no confidence on the Muavin-e-Qazi. The learned trial Court vide order, dated 25-11-1999 accepted the application and ordered that the case is to be decided on merits after framing certain issues. The respondent filed appeal against this order before the Zilla Qazi, Malakand. The learned Zilla Qazi accepted the appeal and on the basis of the Award of the Muavin-e-Qazi, already filed in the trial Court, decreed the suit of the respondent on 23-2-2000 against the petitioner. Feeling aggrieved, the petitioner has filed the instant revision petition against the impughed judgment/decree of the learned Zilla Qazi.
3. It would be proper to reproduce the relevant provision of sections 6 and 7 of the Regulation, which reads as under:-- "6. Muavin-e-Qazi and A'alim Wakeel.--- (1) Government shall, within a period of two months from the date of commencement of this Regulation, constitute a Committee consisting of the following members, namely:-
(i) .
(ii)
(iii) ..........................................................................................................................
(iv) ..........................................................................................................................
(v) .........................................................................................................................
(2) The Committee constituted under sub-paragraph (1), hereinafter referred to as the Committee, shall have the authority to select Muavineen-e-Qazi, and the name of such Muavineen shall be declared, by notification in the official Gazette, for each calendar year, for each district or protected area, in the form of a panel of up to thirty Ulema of known integrity and good character, and being well-versed in Sharia'h: ' Provided that the name of such person shall be retained on the future panel, unless the Committee, for reasons to be recorded in writing, decides to delete the name of any person from the panel.
(3) A Qazi shall, for the purpose of expounding and interpreting the Injunctions of Islam relevant to the proceedings of a pending case, call upon one or more of such Muavineen-e-Qazi for his assistance.
(4) ..
(5) ..
(6) ..
(7) .
(8) .
7. Power to appoint Musleh.--- (1) Where the parties to a dispute before the Court agree, the. Court may refer the dispute to one or more Musleheen, appointed by mutual consent of the parties, for its resolution, in accordance with Sharia'h: Provided ......................................................................
(2) The Musleheen shall be assisted by Muavin-e-Qazi in advisory capacity in each case, with respect to Shariah' during the course of Sulah.
(3) The Msuleheen shall record their opinion with regard to a dispute referred to them with reasons therefor.
(4) Where a Musleh or, as the case may be Musleheen, to whom a dispute has been referred for resolution, either fail or refuse to resolve it, or the Court is of the opinion that unnecessary delay has been caused, without sufficient reason, in resolving it, the Court may, on the application of a party or suo motu for the reasons to be recorded, withdraw the order of such reference, and, after such withdrawal, it shall resolve the dispute in accordance with Shari'h as if it were not referred for Sulah.
(5) The Court, if it is satisfied that the opinion in a case referred to for Sulah under sub-paragraph
(1) is in accordance with Shaira'h make it the rule of the Court, and shall announce it as such, but, if the Court comes to the conclusion that the opinion is not in accordance with Sharia'h it shall declare the opinion, for the reasons to be recorded, as null and void and shall start its proceedings for decision of such dispute in accordance with Sharia'h as if it were not referred for Sulah and the Muavin-e-Qazi appointed for such resolution shall cease to be Muavin-e-Qazi for further hearing of that case."
4. From the above provisions, it is evident that the job of Muavine-Qazi is to assist the Court in matters requiring the expounding, and interpretation of the Injunctions of Islam relevant to the proceedings of a pending case, whereas the job of Musleheen, if appointed by the Court A with the consent of both the parties, is to resolve a dispute between the parties in accordance with Shaira'h by recording their opinion with reasons therefor and the Coutt can make such opinion of the Musleh or Musleheen in a case referred to for Sulah as rule of the Court, if it is in accordance with Sharia'h. In the very caption of section 6, the word "Muavinin-e-Qazi" is used. The word "Muavin" as prescribed in the Urdu-English Dictionary (by Dr. S.W. Fallon) published by Urdu Science Board, Lahore, means "a helper, an assistant, as supporter. Under section 6 of the Regulation, the Muavin- e-Qazi, is to assist the Court for expounding, interpreting the Injunctions of Islam relevant to the proceedings of a pending case.
5. According to section 6 of Regulation, the "Muavin-e-Qazi" can assist the Court in every case, irrespective of the fact whether it referred to Musleheen for Sulah or is being tried by the Court itself, however, such assistance is subject to the discretion of the Qazi keeping in view the necessity arising in pending proceedings with regard to the interpretation of the Injunctions of Islam. When a matter is referred to Musleheen, they shall be assisted by the "Muavineen-e-Qazi" in advisory capacity in each case with respect to Sharia'h during the course of Sulah.
6. In this case, the job of Musleheen was, however, entrusted to Muavineen-e-Qazi, and that too when both the parties had showed their unwilingness to resolve the dispute through Musleh/Musleheen. Under the above provisions of the Regulation, the Muavineen-e-Qazi could not resolve a dispute between the parties by making any proceedings towards its settlement nor could make or submit any opinion in the Court with regard to factual controversy nor the Court can make such an opinion as rule of the Court. In support of this view, Rule 9 of ShariNizam-e-Adl Rules, 1999 can also be relied upon, which provides that a Qazi shall provide facility to a Muavineen-e-Qazi called for assistance of the Court to hear evidence and arguments, and to peruse the record of the case and the Qazi shall, before decision of the case or proceedings, hear him on the legal points involved in the case or proceeding in the light of Sharia'h. Rule 11, sub-rules (6) and (7) also provide that:-- "(6) Government shall provide funds to the concerned Zilla Qazi for payment to Muavineen-e-Qazi who appear, in accordance with the instructions of the concerned Zilla Qazi, in the Courts in the area of his jurisdiction.
(7) A Muavin-e-Qazi, when called by Court, shall assist the Court in arriving at correct conclusion regarding the proper application of Islamic laws in the circumstances of a case and shall quote references from Qur'an Majeed and Ahdith-e-Nabvi (Sallallaho Alaihe Wasallam) and Fatawa and book of Fiqah of the recognized Fuqaha'a of Islam."
' The above rules clearly determine the functions and duties of Muavineene-Qazi while giving assistance to the Court. The learned trial Court had initially erred in law while referring the matter of Muavineen-e-Qazi for resolution, anyhow, the learned trial Court on the application of the petitioner recalled ,the order of Reference and cancelled the alleged award of Muavineen-e-Qazi by making orders to proceed with the matter on merits, but on appeal filed by the respondent, the learned Appellate Court again committed the same error and not only relied on the report/award of the Muavineen-e-Qazi but made it as rule of the Court and granted decree in favour of the respondent in an appeal which was filed against ali interlocutory order of the trial Court. The learned Appellate Court has thus not only acted in violation of the relevant provisions of law, but has also exceeded his jurisdiction by straightaway decreeing the suit without any decision of the Illaqa Qazi thereby taking away the substantive right of appeal from the petitioner. The impugned judgment/decree is, therefore, liable to be set aside.
7. Accordingly, this revision petition is accepted, the impugned judgment/decree of the learned Appellate Court is set aside and the case is remanded to the learned trial Court for further proceedings and decision of the case on merits as per order, dated 25-11-1999. The learned trial Court should decide the case within a period of two months. In the circumstances of the case, the parties are left to bear their own costs.