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Writ Petitions Nos. 21, 39, 44 and 60 of 1965, decided on 5th October 1970.

Ss. 8 & 49 read with Government of West Pakistan Notification [under S. 1(3) of West Pakistan Criminal Law (Amendment) Act, 1963] dated 17.12‑64--- Disputes regarding lands referred to jirga and decreed under S., 8, F. C. R.‑--Pending revision petitions under S. 49, F. C. R. Notification dated 17‑12‑64 issued withdrawing F. C. R. from Province of Baluchistan---‑Effect: decree passed under F. C. R. void and of no legal effect‑Plaintiff, held, entitled to seek remedy in ordinary civil Court.

A number of suits relating to lands were filed and referred to jirga under the Frontier Crimes Regulation, 1901. Against the decrees passed in the suit the defendants filed revisions before the Commissioner under section 49, F. C. R. During pendency of the revision petitions the Government of West Pakistan issued Notification dated 17‑12‑64 withdrawing the F. C. R. from the Province of Baluchistan. Consequently the Commis sioner held the revision petitions to have become infructuous and disposed of accordingly. In writ petition before the High Court it was urged by the petitioners that since the Commissioner had lost the power to entertain revision, all the proceedings before the jirga be declared illegal, void and without jurisdiction. On behalf of the plaintiff/respondents it was urged that although the Notification did not repeal the F. C. R. yet its withdrawal amounted to a repeal and, therefore, all proceedings whether before the Commissioner or the jirga at the date of the Notifica tion were saved on the principle contained in section 6 of the General Clauses Act, 1897, and, therefore, the Commissioner was not justified in holding the revisions to have become infructuous. It was further pressed that even if the power of revision was lost then the order of the jirga had become final.

Held, that the proceedings which had undoubtedly started under the Frontier Crimes Regulation could not be finalised under the scheme envisaged therein because before the matter could be dealt with in revision by the Commissioner his juris diction had vanished. The Commissioner's order, therefore, also could not be allowed to stand because it was not the final order, a revision having already been filed against it. The dispute consequently remained in an inchoate state, and since the Council of Elders named in the Frontier Crimes Regulations were no longer capable of dealing with it, the parties must be relegated to the ordinary remedy in the civil suit. Section 6 of the General Clauses Act is now applicable to the Constitution, but in order that section 6 should have effect, the case must be expressly one of repeal, and it is not enough that it should be analogous to repeal. When the Legislature repeals an enact ment, it does so consciously, but when it says in a particular statute that any existing law which is inconsistent with that statute shall be void to the extent of inconsistency, it is contem plating a possible conflict, and is not necessarily contemplating a repeal, and, therefore, the contemplation of any saving clause is out of the question. The framers of Constitution must, of all persons, know what the effects of repeal are, and if they intend to save anything in a situation of a different kind, they must make their minds clear. When the F. C. R. became void, all proceedings under it, which had not been finally disposed of by the Commissioner under section 49 of the F. C. R., also became void. The revision applications of the petitioners had not been decided on merits when the F. C. R. became void, therefore, it followed that the proceedings instituted against the petitioners had also become void, and the respondents who filed the respective suits in the four petitions were entitled to re‑present them in the proper Court.

Wali Muhammad v. Government of West Pakistan P L D 1970 Pesh. 119 distinguished.

Petition No. 16 of 1965 (unreported) and Malik Mohd. Usman v. The State P L D 1965 Lah. 225 rel.

Ghulam Muhammad v. Mirza Khan P L D 1966 Quetta 1 and Muhammad Bashir v. The Province of West Pakistan and another f L D 1958 Lah. 853 ref.

Petition No. 21 of 1965

Muhammad Ahmad for Petitioners.

I. H. B. Hanafi for Respondents.

Petition No. 39 of 1965

Yahya Bakhtiar and I. H. B. Hanafi for Petitioners.

Yahya Bakhtiar for Respondents.

Petition No. 44 of 1965

Muhammad Ahmad for Petitioners.

Basharatullah for Respondents.

Qazi Isa (in Petition No. 60 of 1965) for Respondents.

Dates of hearing: 25th and 26th August 1970.

By a Notification dated 17th December 1964 the Governor of West Pakistan withdrew the Frontier Crimes Regulations, 1901, (hereafter called the F. C. R.) from the Province of Baluchistan and as the common question in all these petitions is the effect of this Notification, to which I shall refer as the said Notification, at the request of all the learned counsel I have heard these petitions together and I shall dispose them of by this judgment.

All the petitions arise out of disputes about the ownership of land and briefly the essential facts relevant to these petitions are as follows: In Petition No, 21 of 1965 the respondents 2 to 4 had filed a suit against the petitioner in the Court of the first respondent who had referred it under section 8 of the F. C. R. to a jirga, and as the claim of respondents 2 to 4 was decreed against the petitioner on 28‑9‑1964, he had filed a revision under section 49 of the F. C. R. before the Com missioner Quetta Division. In Petition No. 39 of 1965 the respondent No. 1 had filed a suit against the petitioners for a declaration about land in the Court of the second respondent. As in Petition No. 21 of 1965, this suit was referred under section 8 of the F. C. R. to a Jirga; it is not necessary to refer to the details of the findings of the Jirga, and it is sufficient to state here that the first respondent's claim was decreed against the petitioners, therefore they had filed a Revision Application under section 49 of the F. C. R. before the Additional Commissioner, Quetta who is the third respondent in the petition on 13‑4‑1963. The broad facts in the other two petitions are also similar. Thus in Petition No. 44 of 1965 the second respondent had filed a suit about land against the petitioner, which was transferred to the Court of the first respondent for trial on the F. C. R. side, and as the second respondent's claim was decreed on 28‑9‑64 the petitioner had filed a Revision before the Commissioner, Quetta Division. Finally, in Petition No. 60 of 1965 the first two respondents had filed a suit in the Court of the third respondent against the petitioners which was likewise referred to the Jirga under section 8 of the F. C. R. and as the claim was decreed against the petitioners, on 23‑7‑1964 they had filed a Revision before the Commissioner, Quetta Division. Meanwhile fundamental rights had come into force in January 1964 and the validity of the F. C. R., on the ground that this statute was inconsistent with Fundamental rights, had been challenged before the West Pakistan High Court in Malik Muhammad Usman v. The State (P L D 1965 Lah. 225). By its judgment dated the 17th December 1964, the Full Bench of the West Pakistan High Court upheld this contention and declared the relevant provisions of the F. C. R. to be illegal and void, therefore on the same day the West Pakistan Government issued the said Notification, but this was during the pendency of the four Revision Applications, therefore the Commissioner held in all these four applications that, as the F. C. R. had been declared void he had no power to hear the Revision Applications and he passed an order stating that they had become infructuous. As the petitioners in all the petitions are aggrieved by this order, they have filed these petitions and the question is whether the Commissioner has correctly construed the said Notification.

3. The effect of the said Notification was considered in several cases of the Quetta Circuit of the West Pakistan High Court and I need refer here only to an unreported judgment of a Division Bench of the West Pakistan High Court in Petition No. 16 of 1965. There the facts were that the petitioner in that petition had filed a suit for possession of land against the respondents and, as in the cases before me, that dispute was referred to the Jirga under section 8 of the F. C. R., and the Jirga had given its award against the petitioner. The petitioner was entitled to file a Revision under section 49 but before he could do so, the said Notification was issued, and as the Commissioner thereby lost the power to entertain a Revision Application, the petitioner filed a petition under Article 98 of the Constitution for a declaration that the pro ceedings before the Jirga were illegal, void and without lawful authority, and for a direction that the plaint filed by him be ordered to be returned for presentation to a competent Court. The petition was allowed, and the learned Judges of the Division Bench directed "that the plaint be returned to the petitioner for presenting it before a Court of competent jurisdiction." It is true that in the instant case the petitioners had filed Revision Applications before the said Notification was issued but this difference is immaterial and the judgment cited is on all fours with the material facts in the petitions before me; therefore the learned counsel for the petitioners submitted that it was binding on me. On the other hand, Mr. Basharatullah submitted that the principle laid down in the judgment required further consideration and that the judgment cited should either not be followed or that the petitions before me should be placed before a larger Bench.

4. In order to appreciate the submissions of learned counsel, I may point out here that the said Notification issued by the Governor reads as follows:

"In exercise of the powers conferred by subsection (3) of section 1 of the West Pakistan Criminal Law (Amendment) Act, 1963 (W. P. VII of 1963), the Governor of West Pakistan is pleased to exempt all the areas specified in the third Schedule to the said Regulation from the operation of all the provisions thereof."

Although the said Notification does not state that the F. C. R. was repealed, according to Mr. Basharatullah, a withdrawal amounted to a repeal or was analogous to it, so that the principles of the General Clauses Act were attracted, and as the said Notification does not contain any reference to pending proceedings, according to Mr. Basharatuliah, all proceedings, whether before the Commissioner of Jirga, pending at the date of the said Notification, were saved either on the basis of the equitable principle contained in that section (sic) therefore the Commissioner had erred in disposing of the Revision Applications before him as infructuous. In the alternative learned counsel submitted that even if the Commissioner had lost his revisional jurisdiction, no person had a right to an appeal or a revision, therefore, on a proper construction of the said Notification, Mr. Basharatullah invited me to hold that the order of the jirga had become final, therefore on these and other grounds, according to learned counsel, the petitions were fit to be dismissed. When I pointed out to learned counsel that the Division Bench in the judgment cited had taken a contrary view, learned counsel respectfully submitted that the arguments raise, by him had not been considered or fully considered in the judgment cited.

5. Learned counsel's submission is not correct. The judg ment cited follows an earlier Division Bench judgment of the West Pakistan High Court reported in Ghulam Muhammad v. Mirza Khan (P L D 1966 Quetta 1) where the arguments which learned counsel advanced before me had been considered, therefore it was not necessary for the learned Judges of the Division Bench to consider them in Petition No. 16 of 1965. I may however point out here that the judgment in Ghulam Muhammad's case turned on the effect of fundamental rights on the F. C. R. under the 1956‑Constitution. The facts in that earlier Quetta case were that the petitioners had filed suits for possession of land, which had been dismissed by the Commissioner under section 49 of the F. C. R. However fundamental rights bad come into force before the Commissioner had passed his orders, therefore the petitioners had prayed that the orders passed against them under the F. C. R. were illegal and void and that the plaints filed by them should be returned for presentation to the proper Court. In allowing the petitions before them, the learned judges observed at page 3: "It follows that the proceedings which had undoubtedly stated under the Frontier Crimes Regulation cannot by finalised under the scheme envisaged therein because before the matter could be dealt with in revision by the Commissioner his jurisdiction had vanished a The Deputy Commissioner's order therefore also cannot be allowed to stand because it was not the final order, a Revision having already been filed against it. The dispute consequently remains in an inchoate state, and since the Council of Elders . . . . . named in the Frontier Crimes Regulations are no longer capable of dealing with it, the parties must be relegated to the ordinary remedy in the civil suit." It was this judgment which was followed, and rightly followed, I say so with respect; in Petition No. 16 of 1965.

6. Additionally, Mr. Bakhtiar and Mr. Mirza referred ire to another full Bench judgment of the West Pakistan High Court in .Muharnmad Bashir v. The Province of West Pakistan and another (P L D 1958 Lah. 853). There the petitioner had been convicted by a Jirga for murder, but before his sentence could be confirmed by the Commissioner or before he could file a Revision under section 49 of the F. C. R. fundamental rights had come into force, therefore he had challenged his conviction on the ground that the F. C. R. was illegal. The respondent Government sought to resist the petition on the ground that the effect of fundamental rights was similar to that of repeal, so that the provisions of the General Clauses Act were attracted to the facts of the case. This is the very argument advanced by Mr. Basharatullah, and in repelling it Kayani, C. J. observed at page 858:

"Section 6 of the General Clauses Act is now applicable to the Constitution, but in order that section 6 should have effect, the case must be expressly one of repeal, and it is not enough that it should be analogous to repeal. When the Legislature repeals an enactment, it does so consciously, but when it says in a particular statute that any existing law which is inconsistent with that statute shall be void to the extent of inconsistency, it is contemplating a possible conflict and is not necessarily contemplating a repeal, and therefore the contemplation of any saving clause is out of the question. The framers of Constitution must, of all persons, know what the effects of repeal are, and if they intend to save anything in a situation of a different kind, they must make their minds clear."

I am in respectful agreement with these observations which fully support the case of the petitioners.

7. However Mr. Qazi Isa argued that a contrary view was taken by another Division Bench of the West Pakistan High Court in Wali Muhammad v. Government of West Pakistan (P L D 1970 Pesh. 119), and on the basis of this judgment learned counsel submitted that the Commissioner had not last his jurisdiction for pending pro ceedings. However the judgment in the case cited turned on the provisions of the Criminal Law Amendment Act, 1963, according to which the provisions of the General Clauses Act were expressly applicable to the statute, therefore the judgment cited is distinguishable on the facts and does not help Mr. Qazi Isa's argument.

8. Mr. Basharatullah then sought to distinguish the judg ments in Ghulam Muhammad and Muhammad Bashir's case on the ground that fundamental rights had been suspended in September 1965, but the view taken in these judgments was that all proceedings under the F. C. R. during the pendency of fundamental rights were void and illegal. Now the result of the suspension of fundamental rights was that the F. C. R. automatically came into force agar, but the question is whether on the F. C. R. becoming good law again all proceedings taken under it, which had become void, could, be deemed to have become valid again with retrospective effect. Mr. Basharatullah made no attempt to meet this point and, as a contrary view has been taken by a Division Bench of the West Pakistan High Court in Petition No. 16 of 1965 I follow with respect that view. I therefore hold that all the proceedings taken under the F. C. R. against the petitioners in the four petitions before me were null and void, and the only point which remains for determination is that of the relief to be given in these petitions.

9. Unlike the judgments cited, all the petitioners in the petitions before nee were defendants in the suits filed against diem under the F. C. R. However, this is immaterial because the principle laid down in these judgments is that when the F. C. R. became void, all proceedings under it, which had not been finally disposed of by the Commissioner under section 49 of the F. C. R., also became void. In all the petitions before me, the revision applications of the petitioners had not been decided on merits when the F. C. R. became void, therefore it follows, from the judgment cited, that the proceedings instituted against them have also become void, and the respondents who filed the respective suits in the four petitions would be entitled to represent them in the proper Court.

10. This was conceded by the learned counsel in Petitions Nos. 21 and 44 of 1965. However, in Petition No. 39 of 1955 Mr. Bakhtiar, who appeared for the first respondent, submitted that this respondent should not be directed to represent his plaint because he had already obtained a mutation of his property in his favour and because his claim was supported by earlier judgments of the F. C. R. Courts. As Mr. Hanafi conceded that the mutation should not be disturbed, and as I am of the view that the respondents who filed the claims under the F. C. R. are free to represent them but are not compelled so to do, it is not necessary to consider Mr. Bakhtiar's arguments.

11. Finally, in Petition No. 60 of 1965, after the respondents had obtained their decree under the F. C. R. they had the petitioners arrested and in execution proceedings they had obtained possession from the petitioners of a part of the land in dispute. Mr. Bakhtiar criticised the arrest of the petitioners as high handed and arbitrary, but as they have be‑.n released, it is not necessary to consider the question of their arrest. However it is admitted before me that the first two respondents in this petition and/or persons claiming through them are in possession of a part of the land in dispute in pursuance of the decree in their favour from the Jirga. As this decree was obtained after fundamental rights came into force, it is void, and all proceedings taken under it ate also void, therefore the peti tioners are entitled to be placed in the same position in which they would have been but for the execution of the decree which has become void.

12. In the result I direct that in all the petitions before me the plaints shall be returned to the respondents who had filed claims In the F. C. R. Courts and these respondents shall be free to represent them in the proper Court.

K. B. A. Petition accepted.

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