Gul Hassan etc Vs Federation of Pakistan

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

W.P.No.1774-P/2019 Gul Hassan & another Vs Federation of Pakistan

Date of hearing: 23.09.2025 Mr. Muhammad Jahangir Mohmand, Advocate, for the petitioners.

M/s. Muhammad Atif Nazir, DAG, for Federation, Yasir Khalid, AAG, for Provincial Government.

Mr. Ayaz Khan, Advocate, for respondents.

JUDGMENT

WIQAR AHMAD, J.- Through the instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have made the following prayer:-

“It is, therefore, most respectfully prayed that on acceptance of this petition, a proper writ may be issued declaring the property in question not to be an evacuee property and all the orders in this respect showing the property in question to be an evacuee property or transferring it to the Town Committee on such basis or holding it to be property of the Town committee as illegal, void ab initio, perverse, arbitrary and of no legal effects upon the rights of the petitioner and under the original scheme and Rewaj the property in question be resumed/ returned to the petitioner along with any other relief deemed appropriate in the circumstances of the case..”

2.The petitioners, Muhammad Musa and Gul Hussain, initiated this matter by filing an application on February 3, 2003. Their application pertained to a transaction from April 28, 1908, wherein Taj Muhammad (since deceased) had sold 10 marlas of land, identified as Khasra No. 341 of Moza Sadda, to the then-respondent, Sardar Athar Singh (now deceased and represented by his legal heirs). The transaction, formalized under Mutation No. 235, was for a consideration of 400 Kabli, and notably excluded any share of Shamilat. Sardar Athar Singh subsequently

constructed an Inn and several shops on said land. He also leased a portion of this Inn to one Ghilji of Sadda for the purpose of operating a hotel.

3.Following Taj Muhammad’s death, the property was claimed to have devolved to his son, Muhammad Gul, via an inheritance mutation.

As Muhammad Gul passed away without having any issue, his estate was transferred to his cousins—Momin Ali, Nani Khan, and Muhammad Yahya Bangash—in equal shares through two inheritance mutations, No.

1482 and No. 2638, attested on March 12, 1963, and December 30, 1989, respectively. During the settlement of 1943-44, Khasra No. 341 was recorded as 10 marlas of land characterized as "Ghair Mumkin Abadi Deh" (unusable residential land). According to a directive from the Ministry of States and Frontier Regions dated October 3, 1960, all agricultural evacuee property was to be reverted to its original proprietors upon payment of the price paid by the evacuee. This was conducted under the Evacuee Property and Displaced Persons Rehabilitation Act of 1958, which was subsequently repealed by the Evacuee Property and Displace Person Law (Repeal) Act of 1975.

4.In fact, the subject land was merged into Khasra No. 1954 ("Abadi Deh") during the 1943-44 settlement. The Inn constructed by Sardar Athar Singh, which included shops and a house, was leased to Gul Khan Ghilji of Sadda, the grandfather of the impleaded respondent No. 7, Sardar Khan. In 1966, the Government designated the Inn as Urban Property and transferred it to the Town Committee Parachinar in W.P.No.1774-P/2019

consideration of a payment of Rs. 1.2 million, formalized through a letter dated February 11, 1966. The claims of Muhammad Musa had been previously rejected by the Political Agents and Commissioner FCR.

However, on March 27, 2003, the PA/DM Kurram ruled in favor of said Muhammad Musa (predecessor in interest of petitioners), and this decision was affirmed by the Commissioner FCR, Kohat Division, on September 27, 2003.

5.Aggrieved by the aforementioned order, Sardar Khan, the respondent, filed a revision petition before the FCR Tribunal. On September 4, 2001, the FCR Tribunal remanded the case to the PA Kurram for resolution by a Jirga. The operative portion of this order is quoted as under.

“This is a civil dispute between the parties and needs inquiry within the provisions of FCR. The matter had not been referred to the Council of Elders and as such there is no verdict on the file. This Revision is, therefore, allowed and the case is remanded back to the Political Agent Kurram Agency to refer the matter to the council of elders under section & of the ECE and thereafter decide the care on merit.”

6.Subsequently, the Commissioner FCR, in compliance with the FCR Tribunal’s judgment, referred the matter to the Council of Elders under Section 8 of the Frontier Crimes Regulation (amended 2011). The Council of Elders submitted its majority findings, which formed the basis of the lower court’s order/judgment dated January 21, 2014, rendered in favor of the present respondent. The operative portion of this order is reproduced as under:

“Case file put up in presence of the parties and jirga members. Both the awards discussed in length with the jirga, The award of the majority jirga based on facts, therefore accepted and orders are passed as under:

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1.Property under the possession of Sardar Khan as a tenant had been declared as Urban area and had since been transferred to Town Committee parachinar which can not be reverted, Therefore claim of the plaintiffs is rejected and possession of Sardar Khan as tenant is maintained with the conditions as under:

2.The area measuring 39 marlas with khasra No.341 merged in khasra No. 1954 Abadi deh is the sole property of Town Committee Parachinar 3. The Sardar Khan is only allowed to construct the market at his own expenditure over this land which owned by Town Committee Parachinar only on the following conditions, i. He will never claim the ownership of land and developed market on it. ii. That he would pay Rs.20,000/- ax rent per month to Town Committee Parachinar regularly on monthly basis. iii. That as and when required by Town Committee Parachinar, he would vacate the entire market on one month notice. iv. He is further required to immediately sign the agreement with Town Committee Parachinar/Sadda otherwise his tenancy occupation would be treated as cancelled and the property would be put to open auction for lease and would be given to successful bidders. Case file to PT Alizai for execution of the court order.”

7.Dissatisfied with the lower court's decision, the petitioners filed an appeal with the Commissioner FCR, Kohat. The Commissioner dismissed the appeal on January 19, 2006, but granted a limited remand solely on the issue of rent. The operative portion of this order is as follows:

“Keeping in view the foregoing discussion, the appeal of the appellant No.2 is accepted to the extent of reconsideration of rent and therefore only the point of rent is remanded back to the Political Agent Kurram Agency to determine the date from which the rent is to be paid whether it is with immediate effect or after making construction on the premises and for reconsideration of the highly excessive rent. The prevalent market rate may also be taken into consideration. The rest of the order shall remain intact.”

8.Subsequently, the petitioners moved a Civil Revision Petition (No.

CL.21/6) before the FATA Tribunal, Peshawar, which was dismissed on May 10, 2016. The Tribunal concluded that the revision was misconceived, finding the impugned order/judgment of January 19, 2006, to be sound and in consonance with relevant law and custom. The Tribunal also pointed out that the ownership of the property was vesting in the Town Committee, yet the Committee was not arrayed as a party to the proceedings. The petitioners’ subsequent Civil Review Petition (No.

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CL.22/08/2016) was also dismissed by the FATA Tribunal on January 4, 2016, as the counsel failed to identify any material legal or factual error in the prior judgment. Kurram Agency/FATA has since been integrated into the Province of Khyber Pakhtunkhwa through the 25th Amendment, thereby abolishing the Frontier Crimes Regulation. The jurisdiction of this Court was claimed to have extended to matters previously under the defunct FATA. Consequently, the petitioners, feeling aggrieved by the aforementioned judgments and having exhausted all other efficacious remedies, have filed the instant constitutional petition.

9.Arguments heard. Record perused.

10.For knowing the history and background of the earlier litigation, para No.6 to 12 of the comments of the respondents No.2 to 6 are reproduced herein:

6 Incorrect against facts and law, hence, denied. The matter has been decided by the proper forum and denied the claim of the Petitioners as per law prevailing at that time vide Letter No 5(4)53 SEI Rawalpindi the 11th February, 1966, the Competent Authority exercising power conferred under section 10 (2) of Displaced Person (Compensation and Rehabilitation) Act, 1958, the entire property situated in Kurram Agency transferred to Town Committee Parachinar in lieu of Rs 12,00000/- (Rupees Twelve Lacs Only).

7 Incorrect against facts and law, hence, denied. As explained above the suit property has been transferred to the Town Committee Parachinar by Competent Authority and as per law/rule. the public property cannot be transferred to any private personal 8 Pertains to record 9 Incorrect against facts and law, hence, denied. The matter has been decided by the proper forum and denied the claim of the Petitioners as per law prevailing at that time vide Letter No.5(4)63-SEI Rawalpindi the 11th February, 1966, the Competent Authority exercising power conferred under section 10 (2) of Displaced W.P.No.1774-P/2019

Person (Compensation and Rehabilitation) Act, 1958, the entire property situated in Kurram Agency transferred to Town Committee Parachinar in lieu of Rs 12,00000/- (Rupees Twelve Lacs Only).

10 Denied for want of proof.

11 Incorrect against facts and law, hence, denied. Unlawful demands of the Petitioners cannot be fulfilled. Mere filing of application does not entitled the Petitioners to be the owners of the suit property. Furthermore, all the applications/petitions had been decided as per law prevailed and by the proper forums vide Order dated 14/09/2005 in the Court of Political Agent and District Magistrate Kurram Agency Parachinar, titled "Muhammad Mussa and others Versus Sardar Khan and vide Order dated 19/01/2006 in the Court of Commissioner FCR Peshawar and Kohat titled "Muhammad Mussa and others Versus Sardar Khan".

12 Incorrect against facts and law, hence, denied. The Jirga constituted under the Rewaj-e-Kurram denied the claim of the Petitioners vide Jirga award dated 10/07/2005. They were required under the law ibid to have agitated their grievance if any at the relevant time before proper forum, however, they came to this Hon'ble Court which lacks jurisdiction in the matter. Furthermore, presumption of truth is attached to official documents and long standing entries in the revenue record. Entries regarding the suit property being ownership of the Government are continuous and undisputed since long. Entries in the Revenue Record had never been challenged either by the predecessor of Petitioners or by themselves which fact itself establishes that suit property is public property and the Petitioners wants to grab the public property.

11.Predecessor in interest of the petitioner namely Muhammad Mosa had earlier taken up the issue in the then prevalent hierarchy established under the repealed Frontier Crimes Regulation, 1901 (hereinafter referred to as FCR). That matter has got finalized in said forum well before the merger of Federally Administered Tribal Areas (FATA) in Khyber Pakhtunkhwa by way of 25th Amendment. Same been past and closed W.P.No.1774-P/2019

transactions cannot be reopened. In the case of Abdul Khaliq vs The State, 2025 SCMR 527, Hon’ble Supreme Court held that;

‘‘9. Coming to the other important plea of the petitioner that this Court as well as the High Court now has the jurisdiction to examine the vires or legality of the order passed by the authorities under the FCR on the grounds that Article 247, which bars their jurisdiction, had been omitted through the Constitution (Twenty-fifth Amendment) Act, 2018 (the Constitution Amendment). This stance of the petitioner is not legally tenable. This is because the order against the petitioner was passed by the FATA Tribunal on 05.04.2017, whereas the Amendment Act received the assent of the President on 31.05.2018 and was published in the Gazette of Pakistan on 05.06.2018, approximately more than a year after the order dated 24.08.2017 of the Additional District Magistrate/Assistant Political Agent, Central Kurram, Sadda. A retrospective effect cannot be given to this Constitutional Amendment, nor was there any such intention by the legislature. Otherwise, matters decided prior to this Constitutional Amendment would also need to be reviewed by the Constitutional Courts, which would open floodgate to any case, at the time when the order against the petitioner was made. The Article 247 was very much in the field and the jurisdiction of the High Court was barred in matters exclusively dealt with by the FATA hierarchy, which had attained finality and were correctly upheld by the High Court in the impugned judgment.’’

In the Case of Usman Ghani vs The State, 2025 SCMR 595, the Hon’ble Supreme Court has also held that;

‘‘8. After going through the record of the case, we find that the alleged occurrence took place and the petitioner was arrested on 17.01.2015 in central Kurram Agency, which was classified as a Federal Administered Tribal Area provided under Article 246(c) of the Constitution. The petitioner after his conviction exhausted all the available remedies provided under the FCR from the APA to the Highest Forum i.e. FATA Tribunal. At the relevant time there was no further remedy provided under the law, as such the petition under Article 199 of the Constitution filed by the petitioner before the High Court was not maintainable in terms of Article 247(7) of the Constitution being expressly barred.’’

12.Learned counsel for the petitioner wanted to re-enter the controversy on the question of title, as raised in the instant writ petition but same issue of title has already been decided by competent forums and this Court would not embark upon re-determining said controversy. For W.P.No.1774-P/2019

these reasons, facts of the case and other pleas raised by the petitioners is purposely not being discussed here, because same would amount to entering upon and deciding a controversy in respect of which this Court was not having jurisdiction at the time i.e. when same had been decided and finalized under the regime of FCR. Jurisdiction of this Court was barred under repealed Article 247 of the Constitution in respect of deciding upon the controversy which has already been decided in the regime of FCR. Subsequent merger of FATA by way of 25th Amendment cannot be given the effect of piercing the veil of bar of jurisdiction that existed in past. Such an exercise has never been expressly allowed by legislature while enacting 25th Constitutional Amendment. Same have not been given retrospective effect and such effect cannot be produced by way of implication or any other legal doctrine. The matters already finalized authoritatively under FCR before the date of promulgation of 25th Constitutional Amendment shall remain past and closed transactions, and therefore immune from scrutiny of this Court or any other Court established under the law.

13.Under section 8, 9 & 10 of the FCR, authorities established thereunder were exercising the powers of Civil Courts and its orders were having same effect as decrees of Civil Court in respect of the subject matter of the controversy decided therein. The petitioner or their predecessor could have raised all the pleas (that he has raised in the instant writ petition) in the proceedings before the FCR. If he has raised certain pleas and omitted others then he would be precluded under the W.P.No.1774-P/2019

principle of constructive res-judicata to raise such plea in subsequent proceedings, including the instant constitutional petition. Once a dispute related to property is brought before a Civil Court then all the pleas available to the petitioners are supposed to be raised in those proceedings. If he omits to raise certain pleas in said proceedings he cannot be allowed to commence new proceedings at any time at his convenience by raising the leftover pleas. The instant petition is therefore not at all maintainable for raising a controversy which has already been finalized under a valid legal regime.

14.In light of what has been discussed above, the instant writ petition is found not maintainable and same is accordingly dismissed.

Announced

*Hafeez Burki, SSS*

-Sd-

SENIOR PUISNE JUDGE

-Sd-

JUDGE

(DB)Hon’ble Mr. Justice Ijaz Anwar, Senior Puisne Judge & Hon’ble Mr. Justice Wiqar Ahmad, J.

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