Iftikhar Hussain Vs Malik Fakhar Zaman and others

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

W.P. No. 2440-P/2024

Iftikhar Hussain

V.

Malik Fakhar Zaman & Others

Petitioner(s) by: Mr. Muhammad Jehangir Khan Mohmand, Advocate.

Respondent(s) by: Mr. Abdul Hafeez, Advocate.

Research by: Mr. Mazhar Ali Khan, Research & Reference Officer Date of hearing: 12.09.2025.

JUDGMENT

Dr. Khurshid Iqbal, J.

1.The petitioner state that Moza Alizai, formerly a Tehsil of Lower Kurram in the erstwhile Federally Administered Tribal Areas (“FATA”) post-merger1 era comprises two Tals/Kandis, namely Ahmadkhel and Sharmakhel, who are the original ancestral owners of the land. In the year 1990, all lands including the Shamilat were duly partitioned between the said two Kandis in equal shares.

2.Disputes, however, arose with regard to certain built-up portions of the land. Upon the applications of both Kandis, the competent authority – the Assistant Political Agent (“APA”), Lower Kurram – acting under the erstwhile Frontier Crimes Regulation, 1901 (“FCR”) through order dated 08.01.2003 appointed a commission to devise a mechanism for distribution of the disputed portions. The commission, after extensive inquiry, rendered a unanimous report on 24.03.2003 delineating the shares of the two Kandis. Owing to various reasons, the matter could not be settled at that stage. Subsequently, on mutual consent, both Kandis moved an application on 26.07.2016 to the competent authority seeking approval and implementation of the commission’s report of 2003.

3.After conducting proceedings and recording statements of the parties, the APA, Lower Kurram, vide order dated 14.07.2017 approved and maintained the commission’s report of 2003 and directed its implementation, thereby binding down both factions. This order remained operative and disputes between the parties came to rest.

The Constitution (Twenty-Fifth) Amendment Act, 2018. Page 1 of 8

4.Thereafter, the inhabitants of Qoum Watizai, who are mere settlers in an area known as Baggan and claim no ownership in Moza Alizai, challenged the order dated 14.07.2017 before the learned Civil Judge, Sadda (“trial court”), by filing an application under section 12(2) of the Code of Civil Procedure (“CPC”) alleging fraud and misrepresentation. The petitioners submitted a written reply contesting the said application and raising numerous factual and legal objections, particularly as to the jurisdiction of the civil court to adjudicate matters decided by the revenue authorities acting within their competent jurisdiction.

5.After hearing the parties on the issue of maintainability, the learned trial court dismissed the application under section 12(2) CPC vide order dated 16.06.2023 on the sole ground of lack of jurisdiction. Aggrieved by the said order, the respondents preferred an appeal before the learned Additional District & Sessions Judge, Kurram (“appellate court”) who, through the impugned order dated 28.02.2024, accepted the appeal and remanded the matter to the trial court for decision on merits after recording evidence.

6.The petitioners, having no alternate and efficacious remedy, have invoked the constitutional jurisdiction of this Court, seeking the setting aside of the impugned appellate order dated 28.02.2024 and restoration of the order dated 16.06.2023 passed by the learned trial court.

7.Learned counsel for the petitioners contended that any order passed by a tribunal, authority or revenue officer can be questioned under section 12(2) CPC only before the same authority or forum which passed it, and not before a Civil Court. According to him, the learned Trial Court therefore committed no illegality while dismissing their application under section 12(2) CPC for want of jurisdiction. While adding to his arguments, he maintained that since the erstwhile FATA ceased to exist after the 25th Constitutional Amendment, therefore, civil court is not a successor forum for the order passed by the then APA, who acted in the capacity of revenue officer. He submitted that the impugned order was passed after appointment of a commission consisting of revenue officials who, on the basis of the record-of-rights and the compromise reached between the parties, submitted their report culminating in the order dated 14.07.2017. That order, he argued, rests on proper appreciation of the record and recommendations of the commission. He categorically denied the allegations of fraud or misrepresentation levelled by the opposite side, maintaining that the proceedings were Page 2 of 8

transparent and lawful. He, therefore, prayed for dismissal of the present petition and affirmation of the order of the learned Trial Court as it suffers from no illegality.

8.Conversely, learned counsel for the respondents argued that the learned Trial Court erred in holding that the order dated 14.07.2017 was passed under the West Pakistan Land Revenue Act, 1967 (“Act of 1967”) for partition of the Shamilat of Moza Alizai. He contended that prior to the merger, the said Act had not been adopted in the area, which renders the order of the then Political Administration an executive order rather than a judicial one. Such an executive order, he submitted, can validly be challenged before a Civil Court which has replaced the erstwhile Political Administration and is now the court of ultimate jurisdiction in the area. He further submitted that even assuming the order is treated as having been passed under the Land Revenue Act, the mandatory procedure of referring the matter to a Council of Elders, as required under the relevant law, was never followed. This, he argued, vitiates the proceedings and entitles the respondents to seek redress before the Civil Court. He added that there is no other efficacious forum available to the respondents for challenging the impugned order, therefore, the Civil Court was competent to entertain the application. Finally, learned counsel urged that even if the Trial Court considered itself lacking in jurisdiction, the proper course in law was to return the petition for presentation before the competent forum rather than dismissing it outright. This Court perused the record made available with the instant petition.

9.Before examining the merits of the case, the foremost legal question which falls for determination in the present case is: Whether, in the aftermath of the Twenty-Fifth Constitutional Amendment and the extension of the ordinary laws to the erstwhile FATA, the Civil Court has assumed the status of a successor forum to the office of the APA for all intents and purposes, and consequently possesses jurisdiction to entertain challenges to orders previously passed by such administrative or quasi-judicial authorities?

10.In the pre-Twenty Fifth Amendment legal dispensation, the erstwhile FATA continued to be administered under the FCR, albeit substantially amended in 2011. Under the amended regime the Assistant Political Agent/District Coordination Officer exercised a dual jurisdiction: civil as well as criminal. In the civil sphere, Section 8 of the Regulation authorized the APA, on being satisfied that a dispute existed likely to cause breach of peace, to record reasons in Page 3 of 8

writing and to refer the matter within fifteen days to a nominated Council of Elders for findings under rewaj. The Council, after inquiry and hearing of parties and witnesses, was required to submit its findings within ninety days on the issues framed in the order of reference. On receipt of those findings, the APA could either pass a decree in accordance with the majority view or remit the case back for further inquiry, and such a decree, by virtue of Section 9, operated as a final settlement having the effect of a decree of a Civil Court of ultimate jurisdiction. The APA also retained powers to nominate and decide objections to the composition of the Council, to frame issues, and to compel attendance of parties and witnesses (Section 20). In the criminal sphere, Section 11 and allied provisions permitted the APA to take cognizance of offences, refer questions of guilt to the Council of Elders, and, on its findings, to impose sentences up to fourteen years’ imprisonment (Section 12), grant or withhold bail (Section 11A), and enforce sentences (Section 13). Thus, even before the Twenty Fifth Amendment, the APA performed hybrid functions, acting as an administrative officer but, in matters such as civil references to the Council of Elders and passing of decrees on their findings, discharging powers akin to those of a Civil Court of ultimate jurisdiction.

11.After the Twenty-Fifth Constitutional Amendment and the consequent extension of the ordinary laws to the erstwhile FATA, the civil and criminal jurisdiction previously exercised by the APA under the FCR devolved upon the ordinary courts of law. In civil matters, the functions earlier performed under Section 8 of the FCR are now vested in the Civil Courts, while the functions in criminal matters previously exercised under Section 11 and allied provisions stand vested in the Criminal Courts. It is a settled principle that a change of forum by operation of law is procedural in nature and does not extinguish or impair the substantive rights of the parties. Consequently, all cases which were pending before the then APAs are to be construed and continued before the successor forums, mutatis mutandis. A bare reading of the provisions of the FCR makes it evident that the powers to adjudicate civil and criminal disputes have, by virtue of the Twenty-Fifth Constitutional Amendment, been devolved respectively upon the Civil and Criminal Courts.

12.Apart from these two capacities—civil under Section 8 and criminal under Section 11—no third capacity can be discerned from the provisions of the FCR under which the APA could act. In particular, the APA had no authority analogous to the powers exercised by revenue officers under the Act of 1967, which was never Page 4 of 8

extended to the erstwhile FATA prior to the merger. In simple terms, therefore, all matters involving determination of civil rights or liabilities, including partition or demarcation of land, are to be treated as falling within the purview of Section 8 of the FCR. For all such purposes, the Civil Courts have, post-merger, assumed the status of successor forums to the office of the APA when acting under Section 8 of the FCR.

13.Turning now to the present matter, which hinges upon the maintainability of the petition under section 12(2) CPC, it is first necessary to determine whether the order dated 14-07-2017 passed by the then APA under the erstwhile FCR partakes of the character of an “order,” “decree” or “judgment” within the contemplation of section 12(2) CPC. Resolution of this question inevitably requires an examination of the true nature of the order dated 14-07-2017, particularly whether it squarely falls within the ambit of section 8 of the FCR. For facility of reference and proper appreciation, the relevant provisions of section 8 of the FCR are reproduced below:

8.Civil reference to the Council of Elders.– (1) Where the Political Agent or the District Coordination Officer, as the case may be, is satisfied from any information that a civil dispute exists between the parties which is likely to cause breach of peace, he may, for the settlement thereof make an order in writing stating the grounds for his being so satisfied, refer the dispute within fifteen days to the Council of Elders, for findings in accordance with Rewaj who shall give its findings within ninety days on the issues in dispute after making necessary inquiry and hearing the parties and their witnesses.

(2)Where a reference to the Council of Elders is made under sub-section (1), the Political Agent or the District Coordination Officer, as the case may be, shall nominate the Council of Elders. The names of the members so nominated be communicated to the parties, and any objection taken thereto by any of the parties, shall be recorded. The Political Agent or the District Coordination Officer, as the case may be, shall dispose of the objections after hearing the parties and recording the reasons thereof, appoint the members of the Council accordingly.

(3)The order of reference made under sub-section (1) shall state the issues in dispute on which the findings of Council of Elders is required.

(4)On receipt of the findings of Council of Elders, the Political Agent or the District Coordination Officer, as the case may be, by recording his reasons may, -

(a)pass a decree in accordance with the findings of the majority of the Council of Elders; or

(b)remand the case to the Council of Elders for further inquiry and findings.

14.The next important provision of the FCR for the purpose of the present matter is section 9, which read as follow:

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9.Effect of decree on finding of Council. – A decree passed under clause (a of sub-section (4) of section 8 shall,

(a)be a final settlement of the case so far as the decree relates to the matter stated in the reference; and

(b)have, to that extent and subject to the provisions of this Regulation with respect to the finding of appeal or revision as the case may be, the same effect as a decree of a Civil Court of ultimate jurisdiction, and be enforced by the Political Agent or the District Coordination Officer, as the case may be, as a decree of such Court.

15.A bare reading of section 8 of the FCR showed that it had prescribed a structured and mandatory procedure for settlement of civil disputes likely to cause breach of peace. Political Agent or District Coordination Officer was first required to satisfy himself, on the basis of information, that such a dispute existed and to record reasons for that satisfaction. Only thereafter could he make a written reference to a duly nominated Council of Elders, clearly framing the issues on which findings were required. The Council, after hearing the parties, examining witnesses and making the requisite inquiry, was bound to return its findings within ninety days. The parties were also afforded an opportunity to object to the composition of the Council and to have those objections adjudicated by the Political Agent with reasons recorded. This scheme embodied a quasi-judicial process in which the Political Agent functioned more as a Civil Court than as an administrative authority.

16.Section 9 then conferred a definite legal status upon the outcome of such proceedings. Where the Political Agent, acting on the findings of the Council of Elders, passed a decree under section 8(4)(a), that decree operated as a “final settlement” of the dispute to the extent of the matters stated in the reference. More importantly, clause (b) expressly declared that, subject to the provisions relating to appeal or revision, such a decree had the same effect as a decree of a Civil Court of ultimate jurisdiction and was to be enforced as such. In other words, once the Political Agent had completed the process envisaged by section 8 and embodied the Council’s findings in a decree, the character of that order was no longer merely administrative or executive; it assumed the attributes of a judicial decree with all its attendant consequences.

17.The combined effect of sections 8 and 9, therefore, is that an order passed by the Political Agent in strict conformity with the findings of the Council of Elders constitutes a decree in the eye of law, enforceable as that of a Civil Court. Being clothed with the status of a judicial decree, it is also amenable to challenge on the limited Page 6 of 8

grounds of fraud or misrepresentation envisaged under section 12(2) CPC, but—consistently with the general principle underlying section 12(2)—only before the same forum or its lawful successor. Conversely, if the order impugned does not arise out of a reference under section 8 or has not culminated in a decree under section 9, its character remains that of an executive order and it can be assailed in the ordinary civil jurisdiction. This distinction between the procedure and effect of orders under section 8 read with section 9 is pivotal to determining the maintainability of the present petition.

18.Applying the foregoing principles to the present case, it is apparent that the proceedings culminating in the order dated 14.07.2017 were not conducted in accordance with the mandatory procedure prescribed under section 8 of the FCR. In the absence of adherence to the procedure contemplated therein, the order dated 14.07.2017 could not, in law, assume the character of a judicial decree of a Civil Court of ultimate jurisdiction and, therefore, remained an executive or administrative order.

19.It is equally well-settled by the higher courts in Abdul Rauf (SC: 1965)2; Muhammad Jamil (SC: 1965)3; Muhammad Khan (SC: 2007)4; Nausher (SC: 2022)5; and Broadway Bakers (LHC: 2000)6, that where administrative or revenue authorities act strictly in accordance with law, the civil courts have no jurisdiction; however, where they fail to do so or their orders are vitiated by mala fide or non-compliance with mandatory provisions, the civil courts are competent to interfere and strike down such orders. Viewed thus, the order dated 14.07.2017 being administrative in nature does not attract the provisions implicit in section 12(2) CPC but can validly be questioned before the Civil Court as the ordinary court of competent jurisdiction in the post-merger legal landscape. At the same time, this conclusion does not extinguish or dilute the respondents’ right to challenge that order; rather, their right to seek redress is preserved under the fundamental principle of ubi jus ibi remedium, albeit before the appropriate forum as determined by law.

Abdul Rauf and others v. Abdul Hamid Khan and others (PLD 1965 Supreme Court Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (PLD 1965 Supreme Court 698).

Muhammad Khan and others Province of Punjab and others (2007 SCMR 1169).

Nausher v. Province of Punjab through District Collector, Khanewal and another (PLD 2022 Supreme Court 699).

The Commissioner, Punjab Employees Social Security Institution and another v. Broadway Bakers and Sweets, Wahdat Road Lahore and 3 others (2000 PLC 10 Lahore).

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20.Lastly, with regard to the orders of the courts below, it suffices to observe that the learned trial court, while misconceiving the nature of the dispute, treated the petition as non-maintainable on the assumption that the APA had acted in three distinct capacities— civil, criminal and revenue—and that, by virtue of section 172 of the Act of 1967, the revenue officers were the successor forums to the then Political Administration of the ex-FATA, even though the Act of 1967 was never extended in its entirety to the erstwhile FATA. Thus, holding that a petition under section 12(2) CPC would also lie before the revenue authorities. This approach stands contrary to this Court’s judgment in Abdullah and others v. Ghulam Badshah and others (2025 PHC 2675), wherein it was categorically held that an instrument of partition drawn in consequence of partition proceedings under section 135 of the Land Revenue Act cannot be termed a decree, order or judgment for the purpose of section 12(2) CPC, and the only remedy available is to challenge such an order through a separate suit. Similarly, the learned appellate court also misconceived the true nature of the order dated 14.07.2017 and treated it as a decree, order or judgment within the meaning of section 12(2) CPC.

21.In view of the foregoing discussion, both the orders dated 16.06.2023 and 28.02.2024 are unsustainable and are accordingly set aside. As the petition under section 12(2) CPC is not maintainable, yet in order to obviate multiplicity of proceedings and further wastage of time, it is directed that the said petition shall be treated as a plaint in a civil suit. The respondents shall be at liberty to amend, vary or supplement the pleadings in accordance with law and within the period of limitation, and the learned trial court shall proceed with the matter in accordance with law. The petitioner shall retain the right to contest the claim on all available grounds. This petition stands disposed of in the above terms.

22.For abundant caution, it is clarified that nothing contained in the foregoing observations shall be construed as an expression on the merits of the controversy, and the learned trial court shall decide the case independently, strictly in accordance with law, without being influenced in any manner by the findings or observations recorded herein.

Announced.

Dt:20.10.2025.

JUDGE

(S.B)

Justice Dr. Khurshid Iqbal

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