Syed KHALID BACHA vs DEPUTY COMMISSIONER, MARDAN and 6 others

' NASIRUL MULK, J.--- Writ Petition No,1437 of 1998 filed by Syed Khalid Bacha and Writ Petition No,6 of 2000 instituted by Syed Anwar Bacha are disposed of by this common judgment as they involve similar questions of facts and law.

2. The facts that led to the filing of these writ petitions are that one Abdur Rahim resident of South Waziristan made a complaint to the Assistant Political Agent, exercising powers of Deputy Commissioner under F.C.R., Lada Sub-Division South Waziristan on 18-9-1997 against Syed Anwar Bacha and four others, all residents of Garhi Kapura, District Mardan. The complaint was made under sections 406/419/420, P.P.C. Read with sections 8/11, F.C.R. It was alleged that on account of some business deal between the complainant on the one hand and Syed Anwar Bacha, his brothers and two relatives, regarding sale of visas for employment in the Middle East, the complainant had suffered a loss of Rs, 1,10,00,000. The dispute between the parties took an ugly turn and resulted in kidnapping of persons from both sides. To put an end to this dangerous confrontation, a Jirga was constituted comprising of 14 members, seven by each of the parties.

Both the parties recorded statements agreeing to the constitution of Jirga and giving an undertaking to abide by its decision. On behalf of the complainant the statement was signed by Abdur Rahim and Masoodur Rahman whereas for the other party it was signed by Syed Anwar Bacha and Syed Khalid Bacha. The Jirga gave its decision on 26-2-1998, attested by the Assistant Commissioner, Mardan and Assistant Political Agent Ladha, South Waziristan. According to the decision Syed Anwar Bacha, who was referred to as a second party, was to pay Rs,77,00,000 out of which Rs,10,00,000 was to be paid immediately and the remaining in equal instalments of Rs,17,00,000 every two months. The Jirga also decided that the Deputy Commissioner, Mardan and Political Agent, South Waziristan would be responsible for implementing the decision. On 31-8-1998, the Assistant Political Agent, South Waziristan, on the basis of the decision of the Jirga. Passed a decree for Rupees seveny seven lacs in favour of Abdur Rahim and Masood-ur-Rahman against Syed Anwar Bacha and Khalid Bacha and directed that the decree be executed by the District Magistrate, Mardan by auctioning the movable and immovable property of the two defendants. In pursuance to this judgment and decree, the Deputy Commissioner ordered the implementation of the decree and issued process, including warrant of arrest of the judgment-debtors and sale of their immovable property. In these two writ petitions, the judgments and decrees of 31-8-1998 as well as execution of the decree has been questioned.

3. The learned counsel representing Syed Khalid Bacha, petitioner in Writ Petition No,1437 of 1998, submitted that the decree passed against the petitioner was wholly without jurisdiction in that the petitioner was not recorded as a party in the decision of the Jirga, dated 25-2-1998 and Syed Anwar Bacha alone was recorded as respondent. It was further contended that the decree was passed without any notice to the petitioner and therefore, was a nullity in law. In this context, it was also pointed that the Jirga whose decision was incorporated in the impugned judgment and decree was not constituted in accordance with the provision of section (8)(1) of the F.C.R. As no reference was made to the Council of Elders as envisaged under the said provision of law. That the Jirga so constituted was of an administrative nature and not in accordance with the provision of the F.C.R. In this context, reference was also made to the fact that the Assistant Political Agent before whom the complaint was filed had also signed the decision of the Jirga and participated in its proceedings.

4. The learned counsel assailed the mode of execution of the decree and argued that a decree awarded by the Assistant Political Agent exercising powers of the Deputy Commissioner under the F.C.R. Is to be executed as a decree as provided under section 9(b) of the F.C.R. That the Deputy Commissioner, Mardan or for that matter the Assistant Commissioner, had no authority to execute the decree.

5. The learned counsel representing the petitioner Syed Anwar Bacha in Writ Petition No,6 of 2000, additionally contended that once the Jirga had given a decision to further proceed by way of grant of decree and the execution of that decree was unlawful.

6. The learned counsel who represented Abdur Rahim and Masoodur-Rahman respondents in the two writ petitions argued that the Jirga was constituted with the consent of the petitioners and they cannot now question the decision of the Jirga. As for the involvement of Syed Khalid Bacha, the learned counsel referred to the joint statement of the parties agreeing to the decision by the Jirga, which was signed by Khalid Bacha and Syed Anwar Bacha as the second party. It was argued that the omission of the name of Khalid Bacha in the decision of the Jirga was out of an inadvertence and it should be read alongwith the statement of the parties. The learned counsel, however, was unable to furnish any legal justification for the execution of the decree by the Deputy Commissioner.

' The learned Additional Advocate-General, who is specifically asked by the Court to provide assistance in the question of execution of decrees passed under the F.C.R. In the settled Districts, conceded that such decrees can be executed through ordinary civil Courts in a settled. District and not by the Deputy Commissioner or other executive authorities. The learned Deputy Attorney- General, was also of the same view. He, however, added that the decision of the Jirga had been rightly implemented as the judgment-debtors had paid some cash and a house has also been sold through auction.

8. There seems to be unanimity between the learned counsel for the parties that the decree granted by the Assistant Political Agent, South Waziristan could not be executed by the Deputy Commissioner, Mardan, notwithstanding incorporation of a term in the decision of the Jirga directing that the Deputy Commissioner, Mardan and the Political Agent, South Waziristan would be responsible for implementation of the decision of the Jirga. We also agree with this point of view in the light of section' 9 of the F.C.R. Which reads as under:-- "9. A decree passed under section 8, subsection (3), clause (d), shall not give effect to any finding or part of a finding which, in the opinion of the Deputy Commissioner is contrary to good conscience or public policy, but shall-

(a) be a final settlement of the case so far as the decree relates to any matter stated in the reference, although other matters therein stated may remain undisposed of; and

(b) have, to that extent and subject to the provisions of this Regulation with respect to revision, the same effect as a decree of a Civil Court of ultimate resort, and be enforced by the Deputy Commissioner in the same manner as a decree of such a Court may be enforced."

9. It would be seen that the execution of a decree passed by Deputy Commissioner, in the present case the Assistant Political exercising the powers of Deputy Commissioner, shall have the same effect as the decree of a Civil Court of ultimate resort and can be executed as a decree of a Civil Court. Since the decree passed by the Assistant Political Agent was to be executed in the District of Mardan, where the F.C.R. Is not in force, it can be executed only in accordance with the law .Of execution of decree enforced in Mardan, under the Civil Procedure Code. The Assistant Political Agent passing the decree had, therefore, to follow the C procedure laid down in section 38 read with Order 21, rules 5 and 6 of the C.P.C. The mode adopted by the Assistant Political Agent and the implementation of the decree by the Deputy Commissioner and the Assistant Commissioner, Mardar was contrary to law.

10. As regards the other contentions of the learned counsel for Syed Khalid Bacha, it may be stated that the petitioner has an alternative statutory remedy available under the F.C.R. All questions raised before us regarding the constitution of Jirga and the inapplicability of the decision of the Jirga to him can be properly raised in appeal to the Commissioner under section 48 of the F.C.R. If a decree has been passed by the Assistant Political Agent without notice to the petitioner, he can also move an application. For setting the same aside. We would, therefore, not dilate upon the merits of the contentions pertaining to the legality of the proceedings before the Assistant Political Agent. We are mindful of the fact that the impugned decree was passed on 31-8-1998 whereas the appeal to the Commissioner is to be filed within thirty days. However, in the light of the fact that the impugned decree was in essence an execution order and the execution proceedings were challenged in Writ Petition No,1437 of 1998 soon thereafter on 26-9-1998 and the same was admitted to full hearing, and the execution proceedings suspended, we trust that the Appellate Authority will take the time spent in pursuing the present writ petition into consideration while determining the question of limitation in filing the appeal.

11. In the light of the above discussion, the writ petitions are partially allowed. Whereas the impugned judgment and decree of 31-8-1998 is not interfered with on account of availability of alternative statutory remedy to the petitioners the process of execution of the decree by the Deputy Commissioner and the Assistant Commissioner, Mardan is set aside as illegal and without lawful authority. The parties are left to bear their own costs.