EJAZ AFZAL KHAN, J.---Both the parties having warring claims to the property known as "Espaghalasht", the subject-matter of this litigation, witnessed various ups and downs in different forums, but their urge or anxiety to get it decided from yet another higher forum does not rest satiated despite the passage of more than half a century, partly because of its unique facts and partly because of the manner it has been dealt with.
2. Succinctly stated, the facts of the case are that the property in dispute being the ownership of Sir Shuja-ul-Mulk, Mehtar of State of Chitral was given to Abdur Razzaq Pasha, the predecessor-in- interest of the petitioners herein, which on his demise descended on them and remained in their possession till 1946, when one of them, namely, Syed Chiragh Hussain Shah. Was exiled from the State because of his alleged involvement in a plot of poisoning the then Mehtar, Sir Muzzafa-ul- Mulk and the property so given thereto was confiscated. Thereafter, the said property was allegedly gifted to Begum Muhammad Usman Khan, who since dead has been represented by her legal heirs. On the demise of Sir Muzzafar-ul-Mulk, Syed Chiragh Hussain Shah came back and claimed the property by pleading that he was innocent and that the plot of poisoning was just a ruse and ploy to deprive him of that. The Board of Administration functioning under the Chairmanship of the Additional Political Agent sent the case of the petitioners to the Political Agent, Malakand who in turn ordered it to be decided by the Local Judicial Council. Before any verdict could be given by the Judicial Council, Muhammad Usman Khan alongwith his Begum fled to Afghanistan and in consequence the land was retrieved to the petitioners. On the return of Muhammad Usman Khan alongwith his Begum in 1953, the Governor of N.-W.F.P. Ordered them to be put in the same position in which they were before their flight to Afghanistan and that if they had any dispute with any private citizen of Chitral that should be decided by the concerned Judicial Council on its merits.
Though the reference was made to various Judicial Councils, but all the times it ended in a split verdict, until the claim of the petitioners found acceptance in the order dated 17-8-1954 of the Additional Political Agent, Rana Farzand Ali Khan and pursuant thereto, the property was restored to them. Muhammad Usman Khan preferred an appeal against the aforesaid decision before the Political Agent Dir, Chitral and Malakand who was Ex-Officio Rengent of Chitral, but he declined to interfere therewith. When many other efforts of the respondents, in various forums, for setting aside the orders in favour of the petitioners, bore no fruit, the former filed a Writ Petition No,111 of 1976 in this Court which was accepted and consequently respondents Nos.5 and 6- therein were directed to decide the matter in dispute in accordance with law vide judgment dated. 24-3-1980. The petition for leave to appeal against the judgment of this. Court was dismissed before being converted into appeal by the august Supreme Court vide judgment dated 16-6-1980.
3. The Deputy Commissioner on receipt of the file in the wake of remand instead of deciding the matter in accordance with the directions of this Court highlighted in para.10 of the judgment, proceeded to decide the case according to his own whim and caprice vide his order dated 11-1- 1982. The appeal against the said order filed by the respondents was allowed and the order impugned therein was set aside by the learned Additional Commissioner, Malakand vide order dated 18-11-1984. When the revision petition tiled by the petitioners in the Court of Additional Secretary Home, N.-W.F.P. Was allowed, vide order dated 9-7-1985, the respondents once again invoked the extraordinary Constitutional jurisdiction of this Court by filing Writ Petition No,1281 of 1991,. Which was allowed and the case was remanded to learned Additional Secretary Home, N.- W.F.P. For decision afresh vide order dated 9-12-1996. The petition for leave to appeal in the Honourable Supreme Court did little to bring about a change in the order of this Court as it was dismissed vide judgment dated 25-11-1997.
4. When the learned Additional Secretary Home, N.-W.F.P. Dismissed the revision petition tiled by the petitioners, they as a last ditch effort tiled the instant Constitutional petition.
5. The learned counsel appearing on behalf of the petitioners contended that the property in dispute was not a Meherbani land and, therefore, it could not have been treated as such, because on the demise of Abdur Razzaq Pasha it was inherited by his sons and later on partitioned amongst them under the auspices of K. B. Dilaram Khan, Wazir-e-Azam Chitral who happened to be the father of Muhammad Usman Khan and father-in-law of his Begum. The very devolution of the property, he elaborated his arguments, on the legal heirs of late Abdur Razzaq Pasha, negates its character as being Meherbani. The learned counsel next contended that involvement of one of the petitioners in the poisoning plot of late Muzzafer-ul-Mulk was just a pretext to grab their property, therefore, it could not last long to hold good. While seriously questioning the validity and genuineness of the alleged gift deed made by late Muzzafer-ul-Mulk, the learned counsel submitted that it has all the earmarks of a death-bed gift, as the donor so-called died eleven days after making it The learned counsel went on contending that on the return of Syed Chiragh Hussain Shah and vindication of his position,, the property was rightly restored to the petitioners. He next contended that the very acceptance of compensation by the respondents in the form of Timber worth million and Rs,3,000 per annum in a settlement brought about between the parties by the administrative set-up would inevitably estop the respondents to lay their hands on the property in dispute. The last but not the least contention of the learned counsel was that after remand from this Court, the case was never decided in conformity with the directions highlighted in its judgment dated 24-3-1980.
6. The learned counsel appearing on behalf of the respondents contended that the dispute between the parties remained undecided despite nine attempts. It was, he contended, the Deputy Commissioner, Chitral who took pains to decide it vide his judgment dated 11-1-1982. The learned counsel by controverting the arguments of the learned counsel for the petitioners contended that irrespective of the nature of the property, an absolute power lay with the Mehtar to grant, take back and give it to anyone according to his own wishes, therefore, no person can claim any vested right in such property. The learned counsel by referring to the deed whereby the property was gifted by late Muzzafer-ul-Mulk to his daughter submitted that this document has been admitted in evidence without objection and has never been questioned at any stage of the proceedings. While attending to the controversy raised by the learned counsel for the petitioners that once compensation was accepted by the respondents in the form of timber worth million and Rs,3,000 per annum, the respondents have waived their claim in the property, the learned counsel contended that a look at the relevant correspondence would show that this compensation was given to them in lieu of the usufructs of the property they were deprived of because of its being enjoyed by the petitioners, therefore, its acceptance by the respondents has no adverse bearing on their title. The learned counsel further contended that the case being one of Riwaj was to be decided in accordance therewith, as such, the Deputy Commissioner had the power to decide it himself without referring it to the Judicial Council or Mizan-e-Shariah, firstly because it was agreed upon between the parties and secondly because he was vested with the power under the law as well as Riwaj to override the opinion of either of the forums. Even if, he urged in the alternative, the Deputy Commissioner had no jurisdiction to decide the case without referring it to the relevant forums, it cannot be agitated for the first time in this Court in a Constitutional petition. The learned counsel by concluding his arguments contended that the scope of Constitutional jurisdiction is very limited and even if on re-appraisal of the material on the record, this Court comes to a different conclusion it cannot interfere with the findings of the Courts below notwithstanding the fact that they appear to be erroneous. The learned counsel to support his contentions placed reliance on the case of Abdur Rahman Bajwa v. Sultan and nine others (PLD 1981 SC 522):
7. We have gone through the record and carefully considered the submissions of the learned counsel for the parties.
8. A perusal of the record and material placed thereon would unmistakably indicate that this case never received judicial treatment at any rung of the hierarchy functioning under Riwaj or the law germane thereto. It as far as it can gleaned from the relevant orders and other correspondence, always fell prey to the administrative exigencies. Even the order of, the learned Deputy Commissioner would indicate that he never attended to the instant case judicially. It was certainly in view of this important aspect of the case that this Court while hearing it felt concerned that it be decided in a judicial manner in accordance with the requirements of law and that is why clear directions were given in this behalf in its judgment dated 24-3-1980. It is also not understandable why the Deputy. Commissioner, who was seized of the matter allowed himself to be swamped in expediencies by ignoring the directions of this Court and struck a quid pro quo to decide the matter in his own way and according to his own whim and caprice. No doubt a quid pro quo or a via media is desirable in politics which is a game of the possible but administration of justice in a Court of law cannot succumb to such a phenomenon in any situation whatever regardless of the expediencies whether administrative or otherwise.
9. Whether this case was to be decided under Riwaj or under Regulation I .Of 1969 or II of 1975. The role of the Deputy Commissioner was more or less supervisory as he was just to control and supervise the proceedings of the Judicial Council, Mizan-e-Shariah or Jirga whatever the case may be. It is correct that he had the power to override the decision of either of the forums if and when he found that the proceedings had been conducted with material irregularity occasioning miscarriage of justice but in that case he had to tefer the matter back to the Judicial Council or Mizan-e-Shariah again or re-constitute it under the Riwaj or under the new dispensation. He, under no circumstances could arrogate to himself the power of a sole and ultimate arbitor to decide the matter himself.
10. We have not been able to find anything either in Riwaj or any of the Regulations referred to above which vests an absolute power in the Deputy Commissioner to take a decision of a lis before him independently without referring the same to the forums provided thereunder. In the case of Ghulam iglu v. Mst. Zaibunnisa and 5 others (PLD 1990 Peshawar 1) this aspect of the case was admirably elucidated in the following paragraph which reads as under:-- "It is correct that the Court of the Deputy Commissioner is not stricto senso a trial Court, rather, the trial forum is the Jirga to record evidence and give findings on matters or issues referred to it. The Deputy Commissioner supervises and controls the proceedings of the Jirga and as and when he finds the report of the Jirga deficient in material particulars or that the proceedings have been conducted with material irregularity to have occasioned miscarriage of justice, he may either refer the matter back to the Jirga or constitute a fresh Jirga under the Regulation. In no case he can substitute his own findings for those of the Jirga or to enter upon the trial of the case himself. The trial forums shall in all cases be the Jirga under the Regulation. The Statute places the Deputy Commissioner under obligation that- if he does not find any fault with the report of a unanimous or majority award of the Jirga he would give a decision in accordance therewith. He cannot alter or modify the findings of the Jirga on matters of issues referred to it."
11. The above-quoted paragraph would go a long way to support and strengthen the view that the Deputy Commissioner being a controlling body could not decide any case himself without referring it to the forums provided either under the law or Riwaj because even in the latter case the role of the Deputy Commissioner is by no means different from the one, he had under Regulation, because even the Regulation is nothing but Riwaj codified. This, in our view, is a case of excess of jurisdiction and, as such, cannot be justified by any cannons of law and jurisprudence. Needless to say that where a Statute, a Custom or a Usage having the force of law requires a thing to be done in a particular manner that must be done in that way or not at all.
12. The argument that the Deputy Commissioner has not referred the matter to either of the forums because it was agreed upon between the parties and that he had the power to override their verdict has left us unmoved firstly because there is nothing on the record in black and white to substantiate it and secondly because consent or acquiescence of the parties will not enable or authorize a Court to do what it is not required by law to do as jurisdiction upon a Court or Statutory Tribunal is conferred by law and not by the agreement or acquiescence of the parties. It is now well established that where an inferior Tribunal or Court has acted wholly without jurisdiction or taken any action beyond a sphere allotted thereto by law, such action amounts to a usurpation of power and as such is an act without jurisdiction and lawful authority, therefore, the superior Courts in their discretionary jurisdiction always invariably step in to declare it a nullity that is to say of no legal effect whatsoever particularly when it has occasioned injustice to the parties. In the case of Muhammad Tufail v. Abdul Ghafoor (PLD 1958 SC (Pak.) 201), the Hon'ble Supreme Court went to the extent of holding that where total. Absence of jurisdiction appears on the face of proceedings. In the inferior Court, the Court is bound to issue a prohibition, although the applicant for the writ has consented to or acquiesced in the exercise of jurisdiction by the inferior Court. The reason why, notwithstanding such acquiescence, a prohibition is 3ranted where the wrong of jurisdiction is apparent on the face of the proceedings, is that the case might not become a precedent if allowed to stand without impeachment.
13. In the case of Utility Store Corporation of Pakistan Ltd. v. Punjab Appellate Tribunal and others (PLD 1987 SC 447), the Hon'ble Supreme Court has given a new turn and dimension to the concept of jurisdiction in the following paragraph which deserves verbatim reproduction and thus runs as under:-- "It is not right to say that the Tribunal which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it 'rightly or wrongly' because the condition of the grant of jurisdiction is that it should decide the matter in accordance with law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide' rightly but not the jurisdiction to decide wrongly. Accordingly, when the Tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction."
14. It is abundantly clear from the above-quoted paragraph that where a Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the very condition for the- conferment of jurisdiction on a Court of law or Tribunal is to decide it rightly and not wrongly, for the reason that it is an indefeasible right of every citizen of the country under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, to be dealt with in accordance with law and where law has not been correctly or properly observed, it would be a fit case for interference in the exercise of its Constitutional jurisdiction.
15. Since this case has not been decided in accordance with law and directions of this Court and has never received a judicial treatment at any level of the relevant hierarchy, we have no alternative but to allow this petition and set aside the orders impugned herein and remand the case for decision afresh.
16. As we have decided to remand this case mainly on the point of jurisdiction, we do not feel apt and appropriate to comment and give finding on any of the arguments addressed by the learned counsel, for the parties at the bar.
17. Whether this case be sent to the forums below functioning under Riwaj or Regulation I of 1969 or II of 1975 is a proposition which too was seriously deliberated over by us, but as none of the forums is in existence at the moment and the Regulations have since been struck down as being violative of the Constitutional provisions by the august Supreme Court, we send this case to the learned Alla Illaqa Qazi, Chitral for its decision afresh in accordance with law after giving the parties full opportunities to produce their respective claims. Since the case is fairly old, the learned trial Court is directed to conclude it within one year.