Haji Ameer Nawaz Vs Torkhel through Faith Khan

PESHAWAR HIGH COURT, PESHAWAR

(JUDICIAL DEPARTMENT)

Writ Petition No. 5234-P/2024

Haji Ameer Nawaz .........Petitioner.

Versus Torkhel, all three Sections through Fateh Khan etc. .......Respondents.

For the Petitioner: Mr. Salim Shah Hoti, Advocate

For the Respondents: M/s Mohammad Shahzad Nawaz AAG alongwith Muhammad Yasir AAC Revenue, Khyber and Muhammad Faheem Girdawar Khyber and Mr. Farhad Ullah Afridi Advocate

Date of Hearing: 15.10.2025

JUDGMENT

WIQAR AHMAD, J.- Facts of the case as narrated in the instant writ petition, are that petitioner was owner in possession of 343 Kanals of land situated at Ghariza, Tehsil Jamrud, District Khyber, which was mutated in his name on the basis of inheritance through a court decree. Petitioner filed an application before respondent No. 16 seeking restraint against illegal interference by respondents No.1 to 15. The Assistant Political Agent (“APA”)/respondent No.16 constituted a Council of Elders comprising representatives of all three sections of Tor Khel to resolve the dispute, which submitted a unanimous verdict in favour of petitioner, consequently, respondent No.16 passed an order/decree on

05.10.2007. After a lapse of eight years, respondents No.1 to 15 preferred an appeal on 04.06.2015 before respondent No.17/Ex-Commissioner FCR, Peshawar, which was dismissed on 31.03.2016 on the ground of unexplained delay.

Thereafter, respondents No.1 to 15 filed a Revision Petition before respondent No.18 (Ex-FATA Tribunal) which was allowed on 09.01.2018 by setting aside the orders of both lower forums and remanding the case to the Assistant Commissioner concerned for constitution of a fresh Council of Elders under Section 8 FCR. The petitioner filed a Review Petition against said order, which was dismissed by respondent No.18 vide order dated 25.09.2024. Feeling aggrieved of the impugned order dated 25.09.2024, petitioner has filed the instant writ petition.

2.Arguments heard and record perused.

3.Perusal of record reveal that the proceedings before the hierarchy established under the FCR had not been finalized till promulgation of 25th Constitutional Amendment whereunder former tribal area was merged in the province of Khyber Pakhtunkhwa. The original order had no doubt been passed on 05.10.2007 where-against an appeal had been filed however, the appeal was allowed on merits and delay of 08 years was condoned in order of the Commissioner, made on 31.3.2016.

Against said order a revision petition was filed before FATA tribunal which had set aside both the orders dated 05.10.2007

of APA and order dated 31.3.2016 of Commissioner and remanded the matter to the APA with directions to frame a fresh order of reference and referred the matter back to Jirga for decision afresh vide order of the tribunal dated 9.1.2018.

Then a review petition was filed which was dismissed. This court while seized with the instant writ petition has before it order of the Tribunal dated 9.1.2018 through which the case has been remanded to the forum of APA for de novo proceedings. The lis, is to be started from first proceedings of framing of reference by the Assistant Commissioner concerned. Now that FCR has been repealed by way of 25th of Constitutional Amendment, the forum of Assistant Political Agent has no more been in existence and the Assistant Commissioner cannot be allowed to conduct the entire proceedings right from the start, under a repeal law. This court while giving its judgment in case of Mohammad Hasham vs.

Malik Jehanzeb etc. (Writ Petition No. 2012-P/2025 decided on 08.10.2025) has held that Assistant Commissioner can neither be considered a successor of the Assistant Political Agent nor allowed to conduct judicial proceedings under the repealed FCR. For ready reference relevant part of said judgment is reproduced hereunder;

“Since the order of transfer of learned District Judge, Kohat was running contrary to final judgment of this Court (which had also attained finality) the superstructure built thereon including order dated 27.2.2025 of the Commissioner Kohat (impugned) as well as all the orders passed by APA in implementation and interim orders passed by the FCR Tribunal have

all been without jurisdiction, ultra vires, void and ineffective. All such proceedings were also running contrary to law after merger of FATA in the province of Khyber Pakhtunkhwa by way of 25th Constitutional Amendment and repeal of FCR. The forums of Asstt: Commissioner, Commissioner FCR and FATA Tribunal were having no jurisdiction in the matter to have passed any order in respect of the cases in hand. Jurisdiction of commissioner FCR had only been continuing under repealed FCR as held by this court in its judgment of this court dated 02.12.2022 in Suhbat Khan case (supra) to the extent of matters that had been pending on the day of repeal of FCR and not finalized by judgment of this court or judgment of Hon'ble Supreme Court of Pakistan (separately passed). Jurisdiction of the original forum of APA could not be deemed to have been given any protection, continuity or existence (under the repealed FCR) in any of the categories of cases mentioned in the case of Suhbat Khan (reproduced above). The Assistant Commissioners now posted and working in FATA or merged area had got no jurisdiction either under repealed FCR or any other law to continue with any judicial proceedings under the repealed FCR. Such officers cannot be deemed to be successors of the office of Assistant Political Agent under the repealed FCR. Such succession is not available under any legal instrument. This court while giving its judgment in case of Syeda Humaira Sultana vs. Government of Khyber Pakhtunkhwa through Chief Secretary and 3 others reported as 2021 PLC (C.S.) 1074 [Peshawar High Court (Mingora Bench)], has already clarified the matter of claimed succession of the authorities that stood posted and working in merged District of Khyber Pakhtunkhwa and the authorities that had earlier been established and existing under the repealed FCR in former FATA. In said judgment it was categorically held;”

“13. Besides the office of Political Agent mainly derived its existence and authority from the Frontier Crimes Regulation, 1901. With repeal of Article 247 from the Constitution, the said Regulation shall be deemed to have been repealed thereby. With the unqualified repeal, the office of Political Agent has seized to exist. No other office or officer can claim any legacy of the said office as no such law provides for the same. In other words, the office of Political Agent has been mummified and laid to rest in the cemetery of history along with all his belongings leaving no legacy for anyone else to utilize. The Deputy Commissioner, Bajaur is therefore not found to be the successor of Political Agent and he has never been a Chairman of the BOD nor had been substituted

as member of the BOG or the School Management Board. Beside the Political Agent, other members of the BOD and BOG have also lost its existence with the promulgation of Act No. XXXVII of 2018 i.e. 25th Constitutional amendment (hereinafter referred to as the 'amending Act').”

4.So far as judgment in the case of Suhbat Khan and others vs. Kandi Barami Tappa Karna Khel, Malik Din Khel, is concerned, Hon’ble larger bench of this Court has held that pending proceedings would be continued under the repealed law but at appeal or revisional stage only. While deciding said case this court had finally concluded as;

“29. In view of the above, we have reached at the conclusion that notwithstanding the omission of Article 247 ibid as a result whereof the FCR also stood repealed the legal proceedings or remedy in respect of any such a right would continue under the legal dispensation provided under FCR except the proceedings of jirga/Council of Elders in the same mode and manner as provided under the repealed FCR. Hence, we dispose of the instant petition and the connected matters in the following manner.

i. The case of the first category shall be transferred to the FATA Tribunal which was established under Section 55-A of the FCR and in this regard, the Provincial Government shall constitute and notify FATA Tribunal for adjudication of the said cases as well as other cases which would arise out of the judgment of the Commissioner or other fora as stated in this judgment.

ii. The case of second category i.e. Cr.A. No. 401- P/2019 titled "Khiyal Gul vs. Inzar Gul and another" shall also be transferred to the Commissioner Kohat Division Kohat for adjudication under FCR and in this regard, the Provincial Government will also notify the office of Commissioner under the enabling provision of

FCR.

iii. The third category of cases shall be placed before the respective Benches for determination on its own merits. If deemed essential, the respective Bench may refer the case/proceedings to the District Public Prosecutor of the respective Districts/merged area, who will thoroughly

examine the record, may refer the case for reinvestigation to the concerned Police Station with direction to reinvestigate the matter and thereafter submit a complete challan before the competent court of law under Section 173 of Criminal Procedure Code.

iv. The cases relating to civil disputes which did not culminate into final judgment, were pending before the Political Agents, and were transferred to the regular courts in view of Reference No 01- P/2019 decided on 20.03.2019 shall remain pending with the respective Courts. However, the judgments/decree passed by the District Judges/Additional District Judges in the fourth category of the cases are accordingly set aside and the appeals which were transferred to the said Courts will be sent back to the relevant forum (Commissioner FCR) for adjudication under the FCR.”

5.This court while giving its judgment in the case of Suhbat Khan Supra, had only held that those cases which are pending at the stage of appeal or revision should be dealt with under the repealed law. Review in the case in hand has been decided by Tribunal FCR which has finally been dismissed on merits, but it is equally important to be noted that with maintaining the remand order (the earlier order had been set aside by the Tribunal) no order creating or extinguishing rights remained in field and therefore the principles adopted by larger bench of this court cannot be applied in the case in hand. Those cases which have been pending in the first forum i.e. APA had not been given any continuity under the repealed law, in the case of Suhbat Khan (supra). It has expressly been held in para 26 of the judgment rendered in Suhbat Khan case;

“26. In the present case, we have to yet draw a distinction between the matters which though were initiated prior to the 25th amendment in the Constitution, omitting Article 247 ibid under the FCR but had not culminated into the final judgment i.e. to say when any inquiry or trial in

the trifurcated system had commenced, the jirga was constituted, which had inquired the matter, however, judgment/order was not announced by the Political Agent/Deputy Commissioner.

Essentially, under the erstwhile dispensation any matter whether civil or criminal was to be inquired and investigated by a jirga/Council of Elders, and the Political Agent or Deputy Commissioner had very less jurisdiction to interfere in the findings of the jirga as the said findings could not be substituted by the Deputy Commissioner rather if he was of the opinion that the matter requires further probe he could send back it to the jirga for further probe. It was held by the Apex Court in the case of National Commission on the status of women vs.

Government of Pakistan through Secretary Law and Justice (PLD 2019 SC 218) referred above that the manner in which jirga/panchayat functions in any system is violative of Articles 4, 8, 10-A, 25 and 175(3) of the Constitution. Therefore, any system which provides for resolution of the matter through jirga system after pronouncement of the judgment of the Apex Court ibid (16.01.2019) cannot be allowed to further proceed with the matter more particularly in the circumstances when the law of the land establishing a normal investigation/inquiry/trial stands extended to the erstwhile FATA.”

Here in the case in hand, the earlier order passed by APA have been set aside by the Tribunal. If fresh proceedings are to be re-conducted it cannot be allowed to be re-conducted under the repealed law. The controversy have not been conclusively determined in hierarchy established under the FCR. The matter have squarely fallen back to ground zero. In such circumstances this court deems it appropriate that if any party feels that its rights have been infringed, denied or otherwise threatened in respect of the property in dispute then he would be at liberty to file a fresh suit before the civil court of competent jurisdiction. If filed, such suit shall be decided in accordance with law and the mechanism provided for decision by Code of Civil Procedure,1908, Civil Courts Ordinance and

other applicable laws shall govern the entire litigation. The order of remand to the original forum of APA(nonexistent) or Assistant Commissioner is therefore neither sustainable nor have remained workable anymore. Same order would be deemed to be modified to the effect that any of the parties who feels aggrieved would be at liberty to file a fresh civil suit. No rights or prejudice to rights can be claimed on the basis of any order passed, proceedings conducted or steps taken during the litigation that the parties had conducted under repealed FCR.

6.Instant writ petition is accordingly disposed of.

Announced on;

15th of October, 2025 *Zarshad*

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JUDGE

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JUDGE

(DB)Hon’ble Mr. Justice Syed Arshad Ali & Hon’ble Mr. Justice Wiqar Ahmad