GHULAM AHMAD SAEED Versus REHMAN DAYAR KHAN

1. NASIM HASAN SHAH, J .-- This appeal, by leave of this Court, is directed against the judgment of the Peshawar High Court dated 25-5-1977 in Writ Petition No. 485 of 1975 and the question is whether the Governor of N.-W.F.P. had any jurisdiction to interfere with an order passed by the Joint Secretary, Home Department, Government of N.-W.F.P. in revision in a dispute relating to the property situate in the former State of Chitral.

2. This question arises as follows:--

3. Mehtar Jau Aman of Chitral died sometime before the creation of Pakistan leaving behind two widows and a son named Ghulam Ahmad Saeed (the appellant herein). Mst. Khorkasha Khunza, one of his widows, was issueless and a dispute arose between the childless widow and Ghulam Ahmad Saeed (the son of the other widow), with respect to the property of Mehtar Jau Aman. The Mehtar of Chitral decided this dispute by his order passed on 15-6-1947, whereby he fixed 24 maunds of grains per annum as maintenance for the issueless widow. This order was slightly modified on 29-4-1948 in that the maintenance was reduced to 6 maunds of grains per annum but the widow was also allowed to have one cow and six maunds of maize for feeding her. Later on, by a mutual agreement entered into sometime in 1968, the maintenance was fixed at the liquidated amount of Rs.452 per annum.

4. In the meanwhile, on 14th October, 1955, the territories, inter alia, of Chitral State, which formed a part of the "special area", stood incorporated into the Province of West Pakistan and the Governor of the Province was administering it, under regulations made by him; hence Mst. Khorkasha Khunza being desirous of a modification in the order fixing her maintenance at Rs.452 per annum submitted an application before the Commissioner, Peshawar Division asserting that she was entitled to the share of her inheritance out of her husband's estate in accordance with Shariat. The Commissioner, Peshawar Division accordingly, directed the Mizan-i-Shariat to determine her share in accordance with the Shariat vide his order dated 30-11-1968 and the Mizan-i-Shariat, pursuant to this direction awarded 41 Chakorams of land to Mst. Khorkasha, which award was confirmed by the Political Agent acting as Wazir-e-Azam of the State on 17-3-1969. The Political Agent (Wazir-e-Azam), accordingly, amended his previous order as follows: --

5. "Accordingly, it is hereby ordered that 41 Chaks of land in cultivable and fertile plot may be separated and possession transferred to her. She will enjoy the produce of her 41 Chakorams of land till her life time through her own arrangements but she will not be entitled to grant this land as 'HIBBA' to somebody or to sell it. After her death the land of Mst. Khorkasha Khunza will go back to Ghulam Ahmad Sayed, her son."

6. By Regulation I of 1969 issued on 15-8-1969 certain further changes were made for the administration of the Tribal Areas comprising the former States of Dir, Chitral and Swat. Article 3 of this Regulation is relevant for our purposes and the pertinent part of it is reproduced below : --

7. "3. Rulers shall cease to exercise administrative functions etc. --

8. Notwithstanding any law, regulation, custom, usage, orders or instructions in force immediately before the commencement of this Regulation, as from commencement--

(a) ??????? ...............................................

(b) the powers and functions referred to in clause (a) which immediately before the commencement of this Regulation were being exercised and performed by any of the Rulers of the specified territories shall, subject to the general supervision and direction of the Provincial Government, be exercised and performed by such officer, person or authority as the Provincial Government may appoint or empower in this behalf."

9. Under a notification dated 5th December, 1970, the Additional Commissioner, Malakand Division, was empowered to deal with the cases on the revision and appellate side decided under Rewaj, subject to the general supervision and directions of the Government.

10. Mst. Khorkasha Khunza, who was dissatisfied with the order dated 17-3-1969 passed by the Political Agent, applied for its review, as she was allowed only a life-estate in the property. This petition was forwarded by the Political Agent to the Commissioner, with his recommendations. In the meanwhile, Ghulam Ahmad Said (appellant herein) also applied to the Additional Commissioner, to whom this case stood entrusted, for restraining Mst. Khorkasha Khunza from transferring the land to any one. The Additional Commissioner took cognizance of the matter and after hearing both the parties held that Mst. Khorkasha Khunza was entitled to hold the property as a full and absolute owner thereof. The relevant portion of his order is reproduced below:--

11. "The Commissioner, Peshawar Division, finally decided this case in his capacity as Regent for Chitral per his order dated 30-11-1968 whereby it was directed that the Mizan-i-Shariat determined the shares of Mst. Khorkasha Khunza in the property left by her husband Mehtarjoo Aman. There is nothing the least in the said order to indicate that whatever she got was to be for her life only. Such an order would have run contrary to the very purpose for which the case was referred to Mizan-i?Shariat. This obviously meant that whatever she got was to be by way of her being full and absolute owner thereof. In the circumstances, Ghulam Ahmad Saeed Khan's plea that the respondent should be prevented from disposing of her share of 41 Chakorams is untenable."

12. Dissatisfied with the above order, Ghulam Ahmad Saeed (appellant herein) filed a revision petition to the Officer-on-Special Duty (Joint Secretary to the Government of N.-W.F.P., Home Department) but this revision was dismissed by the learned O.S.D. / Joint Secretary vide his detailed order dated 18-11-1971. Feeling aggrieved, the appellant submitted an application to the Governor of N.-W.F.P. for redress. The Governor was pleased to accept the prayer and grant relief to him observing that the case having been decided by the Mehtar in 1947 that order could not be interfered with. Accordingly, the lady was entitled to the maintenance given to her in the aforesaid order. The above order of the Governor was communicated to the parties on 29-9-1973.

13. Respondent No. 1 herein, Subedar Rehman Dayat Khan, who in the meanwhile had been transferred the land in dispute by Mst. Khorkasha Khunza, filed a writ petition in the High Court at Peshawar to challenge the above order. A Division Bench of the Peshawar High Court accepted this writ petition observing that the matter stood finally decided by the order of the Additional Commissioner on 13-4-1971 and that the Governor of the Province had no jurisdiction to adjudicate upon the present dispute.

14. Feeling dissatisfied with the order of the High Court, the appellant moved this Court for the grant of leave to appeal. The main contention then raised was that as the appellant herein was not represented by any counsel in the High Court and that he knew no other language other than Chitrali he had not been heard in the High Court and leave was granted to consider as to whether the principles of natural justice had not been violated in the circumstances of the case.

15. We did not think it necessary to examine this aspect of the matter as we allowed the parties to address us on the merits. Mr. S.M.Zafar, on behalf of the appellant and Qazi Muhammad Jamil on behalf of respondent No. 1, were accordingly heard on the merits of the case at some length.

16. On perusal of section 3 of Dir, Chitral and Swat (Administration) Regulation 1969 (Regulation I of 1969), reproduced above, we find that the powers and functions, which immediately before the commencement of this Regulation were being exercised and performed by any of the Rulers of the specified territories, were, subject to the general supervision and direction of the Provincial Government, to be exercised and performed by such officer, person or authority as the Provincial Government might appoint or empower in this behalf. In pursuance of the provisions of this Regulation, the Government of N.-W.F.P. first issued a Notification No. 29/47-Home(GAI)TA/69, dated 5th December, 1970, which reads as follows:--

17. "In pursuance of the provisions contained in sub-clause (b) of clause 3 of the Dir, Chitral and Swat (Administration) Regulation 1969, the Governor of N.-W.F.P. is pleased to empower the officers mentioned in column 2 of the Schedule appended to this notification, to exercise and perform within their respective jurisdiction, subject to the general supervision and directions of Government, the powers and functions specified against each in column 3 of the said Schedule.

BY ORDER OF THE GOVERNOR

18. Sd/-

19. ? ??????????????????????????????????????????????????????????????????????????????????? Secretary to Govt. of NWFP,

20. Home, Tribal Affairs & L.G.Deptt.

21. S1. Designation of ??????????????????????????????????????????????????????? Powers and functions to be

22. No. Officers. ??????????????????????????????????????????????????????????????? exercised and performed

(1) Commissioner, ??????????????????????????????????????????????????????? All cases on revision side decided

23. Malakand Divn. ??????????????????????????????????????????????????????????? under the F.C.R. in the Division.

(2) Additional

24. Commissioner, ????????????????????????????????????????????????? All cases on revision/appellate side

25. Malakand Divn. ??????????????????????????????????????????????????????????? decided under ?? Rewaj by D.C./

26. ??????????????????????? Additional D.C., Swat, Deputy

27. ??????????????????????? Commissioner, Dir and D.C.

28. ??????????????????????? Chitral.

(3) Deputy

29. Commissioner, ????????????????????????????????????????????????? All cases of murder and cases in

30. Swat/Additional ??????????????????????????????????????????????????????????? which women are involved on the

31. Deputy ???????????????????????????????????????????????????????????????????????? original side and all other cases

32. Commissioner, ????????????????????????????????????????????????? in which orders have been passed

33. Swat. ?????????????????????????????????????????????????????????????????????????? by the Mashirs/Sub-Divisional

34. ??????????????????????? Officers, on the appellate side.

(4) Extra-Assistant ??????????????????????????????????????????????????????? (a) To hear cases both criminal

35. Commissioner. ????????????????????????????????????????????????? and civil on the original side as

36. ??????????????????????? per practice in vogue.

37. ??????????????????????? (b) To hear appeals against the

38. ??????????????????????? orders of Hakims and Tehsildars."

39. From the above notification, it is clear that the Additional Commissioners were empowered to hear all the cases on revision/ appellate side decided under Rewaj by the Deputy Commissioner, Chitral. The instance case was decided by the Additional Commissioner, Malakand on 13-4-1971. No doubt, the said officer was performing his functions under the general supervision and direction of the Government. But the Provincial Government by a notification issued by the Governor of N.-W.F.P. authorised and empowered Nawabzada Muhammad Ayub Khan, P.C.S., O.S.D./Joint Secretary, Home Department, to hear and dispose of all appeals and revision petitions filed before the Provincial Government against the decision made or order passed under Rewaj by the Additional Commissioner, Malakand Division. This notification is in the following terms:--

"GOVERNMENT OF NORTH-WEST FRONTIER PROVINCE

40. HOME, TRIBAL AFFAIRS AND LOCAL GOVERNMENT

DEPARTMENT

NOTIFICATION

41. Dated Peshawar the (?) May, 1971.

42. No. RHS-Misc: 12/71.--In pursuance of the Martial Law Proclamation of 25th March, 1969, read with the Provisional Constitution Order, and in exercise of all powers enabling him in that behalf, the Governor of the North-West Frontier Province is pleased to authorise and empower Nawabzada Muhammad Ayub Khan, P.C.S., Officer on Special Duty (Joint Secretary), Home Department, to hear and dispose of all appeals and revision petitions filed before the Provincial Government against the decision made or order passed under Riwaj by the Additional Commissioner, Malakand Division.

43. By order of the Governor

44. Sd/-

45. ??????????? Secretary to Govt. of North?

46. West Frontier Province, Home, Tribal

47. Affairs and Local Government Deptt."

48. A perusal of the above notification shows that the Provincial Government had entrusted Nawabzada Muhammad Ayub Khan to dispose of all appeals and revisions against the decisions of the Additional Commissioner, Malakand Division.

49. In this case, the Additional Commissioner, Malakand, by his order dated 13-4-1971, had decided the matter and the appellant's revision petition filed against the said order was decided by Nawabzada Muhammad Ayub Khan as the assignee of the powers vesting in the Provincial Government in this behalf. After his order, neither the Provincial Government nor the Governor of the Province had any jurisdiction left to interfere in the matter. The view taken by the High Court that the order of the Governor NWFP dated 29-9-1973 was passed without any legal authority, is, therefore, correct and requires no interference.

50. There is, accordingly, no force in this appeal which fails and is dismissed with no costs.

51. S.Q./G-52/S ??????????????????????????????????????????????????????????????????????????? Appeal dismissed.