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Petitioner: Akbar Khan and others VS Respondent: Government of Khyber Pakhtunkhwa through JUDGMENT
Court Name: Peshawar High Court Judge(s): Ishtiaq Ibrahim, Wiqar Ahmad Title:Akbar Khan and others vs Government of Khyber Pakhtunkhwa through
JUDGMENT
Reported As: 2021 PHC 172, 2021 [M] CLR 1609, PLD 2022 Peshawar 83 Result: Accordingly dismissed Judgment JUDGMENT WIQAR AHMAD, J. Petitioners being the inhabitants of Reshan Gol District Chitral and Gujjar by caste, claimed to be having the legal rights of grazing their goats, in the local pastures/grazing grounds. Initially , dispute regarding grazing of goats in the local pastures between the residents of Ragain Reshan Gol and the residents of Reshan Gol Upper and Lower had arisen. For settlement of the dispute, a local committee had been constituted by Tehsildar Mastuj comprising of representatives of the area of Reshan and finally it had been held by the respective representatives that in the pastures of Reshan Gol, no one from Gujjar tribe should be allowed to graze their goats. Petitioners had therefore been prohibited from grazing their goats in the disputed pastures. Accordingly , the Tehsildar Mastaj had also passed an order on 16.09.2013 as per the recommendations of the local representatives, which order had been maintained by the Assistant Commissioner Mastuj by dismissing appeal of the present petitioners on 27.02.2014. Petitioners thereafter filed a declaratory suit by challenging both orders of the revenue hierarchy , which had been returned to them due to lack of jurisdiction vide order dated 30.04.2014 of the learned civil Court. Revision petition filed there-against had also been dismissed by the learned Additional District Judge-II, Chitral on 07.07.2014. Petitioners had then filed an appeal before the Deputy Commissioner Chitral challenging order of the Assistant Commissioner dated 27.02.2014. Their appeal had been disposed of by the Deputy Commissioner Chitral vide his order dated 02.04.2015 by partially modifying order of the lower forum. Feeling aggrieved there-from, petitioners had filed writ petition No. 495-M/ 2015 before this Court, which was allowed vide order dated 10.07.2017 and the official respondents were directed to regulate rights of grazing cattle of the local inhabitants. They were also directed not to allow more than three cattles per family for the purpose of grazing in the State owned pastures. In compliance with orders of this Court, the Assistant Commissioner Mastuj at Booni had passed an order on 07.06.2018, whereby non-local Gujjars/outsiders, had been restrained from grazing their
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cattles in the pastures of Reshan Gol. For redressal of their grievance, petitioners had again approached the civil Court by filing a declaratory suit, which was summarily rejected vide order dated 02.04.2019 of the learned Civil Judge-VI, Chitral. Their appeal filed against said order was also dismissed by the learned appellate Court vide its order dated 01.07.2019. Petitioners had filed another writ petition No. 937-M/2019 before this Court by challenging Notice dated 15.05.2019 of the official respondents, whereby they were restrained from grazing their goats in the disputed pastures. This Court vide its order dated 24.09.2019 disposed of the writ petition by directing the Assistant Commissioner Mastuj District Upper Chitral to decide grievance of the petitioners strictly in accordance with law and earlier judgment of this Court 'Sated 10.07.2017 rendered in W.P No. 495-M12015. As per direction of this Court, the Assistant Commissioner Mastuj passed an order on 11.12.2019, whereby outsiders were restrained from grazing their goats in the disputed pastures. Feeling aggrieved there from, petitioners have filed the instant constitutional petition with the following prayer; "It is therefore, humbly prayed that on acceptance of this writ petition, order dated 11.12.2019 may kindly be set aside and petitioners (Gujars) may be allowed to profess their profession by grazing their goats in the grazing area in Reshan Gol. Any other relief/remedy for which they are deemed appropriate may kindly be awarded to meet the ends of justice." 2. Comments were called from respondent s No. 2 & 3, which were accordingly submitted. It was contended therein that respondent No. 3 (Assistant Commissioner Mastuj, District Upper Chitral) being an authorized officer was bound to abide by the judgment of this Court and had accordingly acted. 3. We have heard arguments of learned counsel for the parties, learned Addl:A.G appearing on behalf of the official respondents and perused the record. 4. Certain disputed questions of facts were found lurking on the face of record, therefore learned counsel for petitioners, was asked whether the competing claims of rights of the parties made in the instant constitutional petition may not be raised before a civil Court of competent jurisdiction? He in reply referred to provisions of Settlement of Disputes of Immovable Property (Chitral) Regulation, 1974 (Regulation III of 1974) and contended that jurisdiction of civil Court has been barred under para-10 of Regulation III of 1974. He also added that after the Assistant Commissioner Mastuj had passed an order on 07.06.2018 (impugned), barring the petitioners from grazing their goats, they had approached the competent civil Court at Chitral but it had rejected the plaint due to the above mentioned bar. Further arguments of learned counsel for the parties as well as learned Addl:A.G were also heard on the question of existence, continuance and validity of the forums established under Regulation III of 1974 as well as operation of the bar of jurisdiction contained therein. It needs mention here that the other Regulations i.e. Regulation II of 1974 had not been covering the dispute between the parties as the Land Disputes Enquiry Commission had neither considered nor made any recommendations regarding the current dispute between the parties. It had been quite a recent dispute and had never been subjec t matter of the recommendations of the commission nor had been otherwise settled under said Regulation. Same was the case with Distribution of Property (Chitral) Order , 1980 (President's Order No. 11 of 1980), which has specified scope as provided in para-4 of the Presidential Order to the extent of distribution of properties between the State and former Ruler i.e. ex- Mehtar of Chitral. The only Regulation under which the Assistant Commissioners and other officers on executive side are authorized to adjudicate and jurisdiction of the civil Court is claimed to have been ousted is Regulation III of 1974. 5. It is noticeable at the outset that Regulation III of 1974 had been issued by the President of Pakistan under clause-4 of Article 247 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the "Constitution" ). The Regulation had been published in the Gazette of Pakistan on 4th December , 1974. The scope of Regulation had been given an extended canvas under clause (d) of sub para-2 of Para-3 read with Para-5 thereof, wherein all the disputes, other than those for which the commission had made recommendations, had also been included. It had also been provided in Para-5 that the Provincial Government may appoint as many officers as it deemed fit for the purpose of the mentioned adjudication. Sub-para-2 of Para-5 had stated that an officer appointed under sub-para (1) would decide disputes after hearing the parties and taking such evidence as the
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parties may like to produce. Sub-para-3 thereof had provided that any person aggrieved by a decision under sub- para (2) may, within sixty days of the decision, submit an appeal to the Provincial Government, which would be heard by an officer appointed by the Provincial Government. In exercise of the powers conferred by sub-para (1) of Para-5 of Regulation III of 1974, the Provincial Government vide Notification No.. 10/31-SOT A-II/HD/72-A dated 08.07.1975 had appointed all the Assistant Commissioners in District Chitral to decide, within their jurisdiction all the disputes specified in paragraph (b), (c) and (d) of clause (2) of Para-3 of .the Regulation III of 1974, beside notifying the Worthy Deputy Commissioner to decide disputes under clause (a) of paragrapher-3 of the Regulation. Text of said notification is reproduced hereunder for ready reference; "In exercise of the powers conferred by sub-section (1) of section 4 of the Settlement of Disputes of Immovable Property (Chitral) Regulatio n, 1974 (Reg. II of 1974), the Governm ent of the North-W est Frontier Province are pleased to authorize Deputy Commissioner , Chitral to decide disputes referred to in paragraph (a) of clause (2) of section 3 of the said Regulation. In exercise of the powers conferred by sub-section (1) of section 5 of the Settlement of Disputes of Immovable Property (Chitral) Regulation, 1974 (Reg. III of 1974), the Government of North-W est Frontier Province are pleased to appoint all the Assistant Commissioners in District Chitral to decide within their respective jurisdiction, all disputes specified in paragraph (b), (c) and (d) of clause (2) of section 3 of the said Regulation." The question before this Court is whether Regulation No. III of 1974 is still in field and the writ petition against the impugned decision of the Assistant Comm issioner can be decided on merits or the competent civil Court will have jurisdiction in respect of adjudication thereof? 6. As stated earlier , the Regulation had been promulgated by the President of Pakistan under the powers vested in him by Clause-4 of Article 247 of the Constitution. Vide the Constitution (Twenty-Fifth Amendment) Act, 2018 (hereinafter referred to as the "Constitutional Amendment Act"), Article 247 was omitted from the Constitution without providing for any savings. As a result thereof, all the Regulations issued under said Article by the President or Governor with the previous assent of the President, stood repealed. It has already been so held by this Court while giving judgment in the case of Gula Jan vs. Jan W ali reported as PLD 2020 Peshawar 25 that; "Perusal of record reveals that the Twenty-fifth Constitutional Amendment was brought by Act No. XXXWI of 2018 (hereinafter referred to as 'amending Act') which was assented by the President of Pakistan on 31st May, 2018. Section 8 of the amending Act had the effect of merging the areas falling in erstwhile FATA into the Province of Khyber Pakhtunkhwa, while Section 9 of the amending Act provided for omitting Article 247 from the Constitution of Islamic Repu blic of Pakistan, 1973 (hereinafter referred to as 'Constitution'). The Worthy Commissioner Malakand Division at Saidu Sharif, Swat has heard the appeal in exercise of the powers vested in him under Para-36 of the Regulation. The Regulation was promulgated by the President of Pakistan on 28th May, 2018 in exercise of the powers vested in him by sub Article 5 of Article 247 of the Constitution. With the repeal of the said Article, without providing for any saving clause, all the Regulations promulgated by the President of Pakistan under sub Article 5 of Article 247 of the Constitution or by the Governor under sub Article 4 of Article 247 of the Constitution or before the enactment of the Constitution, seized to exist. (Emphasis supplied) The matter has also been clarified by the Hon'ble Supreme Court of Pakistan in the case of National Commission on Status of women through Chairperson and others vs. Government of Pakistan through Secretary Law and Justice and others reported as PLD 2019 Supreme Court 218. Hon'ble Supreme Court of Pakistan has held in the judgment that with repeal of Article 247 of the Constitution vide the Constitutional Amendment Act, same legal regime had becom e applicable in the areas merged in the province of Khyber Pakhtunkhwa, which had already been prevalent in rest of the province. Relevant part of observation of the august Court is reproduced hereunder for ready reference; "It is manifest from the above principles that classification is only permissible under the law where the same has been made on a rational and reasonable basis and althou gh no singular standard of
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reasonableness can be deduced for such classification, it must be such that can be justified on an intelligible differentia identifying why the classification/distinction has been made and there must be a rational nexus to the object sought to be achieved by the classification. After the 25th Amendments all the residents of the Province of KPK are similarly placed, there is no rational basis on which the people of FATA can be distinguished from the people of the rest of the province of KPK and thus the application of the FATA Interim Regulation to one part of KPK while the rest of the province enjoys the protection of the provincial laws is absolutely unjustified, grossly discriminatory and in cont ravention of the fundamental right to equal protection. Whether they be residents of FATA on one hand or of Peshawar or Mardan, etc. on the other , they cannot be discriminated against and any classification between them despite being residents of the same province, with no obvious or reasonably deducible distinction between them, will be arbitrary and against the recognized principles of natural justice and the rule of law. Thus, with the merger of FATA in the Province of KPK, by applying the ratio of Azizulla h Memon's case (supra), it becomes expedient to ensure that all the residents of the Province of KPK (including the people of the erstwhile FATA) do not face any discrimination of the basis of their residential location and are accorded equal protection of the law , and their right to fair trial, access to courts and due process are secured. (Emphasis supplied) 7. It was also argued by learned Addl:A.G that the Provincial Government has promulgated the Khyber Pakhtunkhwa Continuation of laws in the Erstwhile Provincially Administered Tribal Areas Act, 2018 (hereinafter referred to as the "Act"), through which continuity has been given to all the Regulations, which had been holding the field prior to promulgation of the Constitutional Amendment Act and therefore Regulation III of 1974 would be deemed to be in field barring jurisdiction of civil Court and entrusting adjudicatory powers to the administrative officers of the Provincial Government. If we buy such argument of learned Addl:A.G, it would mean that the effects of the Constitutional Amendment Act has been sought to be reversed and nullified through the Act of Provincial Assembly . Executive authority of the Federation has even otherwise been extending to the erstwhile Federally Administered Tribal Areas (hereinafter referred to as "FATA") while executive authority of the province extended to Provincially Administered Tribal Areas (hereinafter referred to as "PATA") as had earlier been provided in the repealed sub-Article (1) of Article 247 of the Constitution. The judicial and legislative authority had however been subject to the extension of laws and jurisdictions, according to the mechanism provided in the repealed Article. If the Act is given an all encompassing effect as pleaded by learned Addl:A.G, it would mean that no change has occurred in the legal regime that existed prior to merger of the areas of PATA in the province of Khyber Pakhtunkhwa and thereafter . Giving the Act such an interpretation would produce ridiculous results. In the former areas of FATA, the new legal regime has come in totality and there is no difference in rest of the area of the province and the newly merged Districts of erstwhile FATA so far as the legal regime applicable therein is concerned. The areas of PATA which had been brought under provincial administration decades ago for the purpose of effecting its early merger with the province, as governance in these areas had been relatively easier being more integrated with settled areas of the province as compared -to the areas of erstwhile FATA. Now that the regular system of administration of justice as prevalent in rest of the country has been put in place in all of the areas of FATA, it would be absurd to keep PATA in the erstwhile tribal pattern and let it governed through Regulations formally issued by the Presidents or Governors. While relying upon judgment in the case of Att.-Gen. v. Prince Ernest Augustus of Hanover [(1957) A.C. 4361, in the leading treatise on the subject of Interpretation of Statue i.e. Maxwell on The Interpretation of Statutes Twelfth Edition, it has been opined that when application of an Act produces absurd consequences, then an interpretation should be advanced through which the Court can avoid such absurdity . Relevant part of the opinion is reproduced hereunder for ready reference; "The same general rule applies where the result of one of two interpretations would be to lead to an absurdity . The leading modern case is Att. Gen. v. Prince Ernest Augustus of Hanover , from which it is clear that the absurdity must be judged of as it would have appeared at the time of the passing of the Act. In 1705, it would not have appeared absurd that all the lineal descendants of the Princess Sophia of Hanover should be deemed "natural born Subjects of this Kingdom," and so the fact that in the mid-twentieth
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century a provision of the statute 4 & 5 Anne c. 16, literally interpreted, made most royal heads of Europe (including the late Kaiser) British subjects failed to persuade the House of Lords to retreat from a literal interpretation." Giving the Act a full effect of reincarnating the legal regime as it existed prior to the Constitutional Amendment Act would also be causing discrimination with the citizens of State belonging to the newly merged Districts formerly falling in FATA, as has already been held by the Hon'ble Supreme Court of Pakistan in the case of National Commission on Status of women supra. 8. Now coming to provisions of the Act, Section 3 has been aiming to give continuity to the laws prevalent in the earlier regime. Section 3 of the Act being relevant is reproduced hereunder for ready reference; "3. Continuation of laws. ---(1) Notwithstanding anything contained in any other law, for the time being in force, all the laws, Regulations, rules, notifications and bye-laws, including Actions (in Aid of Civil Power) Regulation, 2011, or any other legal instrument, applicable in the erstwhile Provincially Administered Tribal Areas and having had the force of law under or in pursuance of Article 247 of the Constitution of Islamic Republic of Pakistan, now omitted vide the Constitution (Twenty-Fifth Amendment) Act, 2018, shall continue to remain in force until altered, repealed or amended by the competent authority . (2) Notwithstanding anything contain ed in any other law, for the time being in force, Secretary to Government, Home and Tribal Affairs Department may, by notification in the official Gazette, confer policing powers upon member of the Federal and Provincial levies force in the Province of the Khyber Pakhtunkhwa, as and when required." Section 3 of the Act starts with non -obstante clause providing that notwithstanding anything contained in any other law, for the time being in force, all the laws etc. applicable in the erstwhile PATA and having had the force of law under or in pursuance of Article 247 of the Constitution, shall continue to remain in force until altered, repealed or amended by the competent authority . Through a non-obstante clause, the Provincial Legislature may give overriding effect to a newly enacted law over other Provincial Statutes but it cannot give an overriding effect to a Provincial law over a constitutional provision. A Provincial law cannot override a constitutional provision nor can be deemed to be having the effect of nullifying a constitutional amendment in letter or in spirit. Such an interpretation cannot therefore be placed upon Section 3 of the Act, which would produce an absurd, illogical and unreasonable effect. We can neither say that provisions of the Act have overriding effect over other Articles of the Constitution nor can hold that the Act be given an effect of nullifying the effects of the Constitutional Amendment Act. In such a situation, what the Act can do at the most is that it may give continuity to certain provincial laws, if validly in field and not happens to be ultra-vires to the provisions of the Constitution. To such an extent, the Act may remain functional. So far as giving the Act the effects of nullifying the Constitutional Amendment Act in the area of erstwhile PATA, we have no other choice but to read down its provision in said respect. 9. At the moment, we are concerned with the existence, continuance and operation of Regulation III of 1974 and in its perspective, we have been discussing the effect of the Act. Neither has vires of the Act been questioned in the instant proceedings nor has it been questioned in its entirety before this Court. The Act is an omnibus one and may be having effect on other laws and for said reason, this Court would avoid destroy ing the law by declaring it ultra- vires the Constitution. For saving the Act, the rule of reading down is employed so as to ward off its conflict with operation of constitutional provisions, beside saving the separation and independ ence of judiciary being militated against through indirect operation of a part of the statute where it has been giving continuity to the provisions of Regulation III of 1974 in an omnibus manner . The absurd result that the Act has been producing by giving continuity to Regulation III of 1974, as explained above may never have been intended to be produced by the Provincial Legislature. Had all this situation been placed before the Provincial Legislature, they would definitely have enacted a law which would have been advancing the objects and purposes of enactment of the Constitutional Amendment Act, rather than producing an opposite result. The case in hand therefore qualifies the two tests laid down in the case of Province of Sindh through Chief Secretary and others vs. M.Q.M. through Deputy Convener and others reported as PLD 2014 Supreme Court 531 , in the following words;
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"However in this context two principle s have to be kept in view . First, that the object of 'reading down' is primarily to save the statute and in doing so the paramount question would be whether in the event of reading down, can the statute remain functional? Second, would the legislature have enacted the law, if that issue had been brought to its notice which is being agitated before the Court?" Judgment in the case of Province of Sindh supra has also been followed in the subsequen t judgment given in the case of Haroon-ur-Rashid vs. Lahore Development Authority and others reported as 2016 SCMR 931, where the Hon'ble Court had observed; "In the case of Province of Sindh through Chief Secreta ry v. M.Q.M. through Deputy Convener (PLD 2014 SC 531), it was held by this Court that at the time of "reading down" of a statute two principles had to be kept in view; first that the object of "reading down" was primarily to save the statute and in doing so the paramount question would be whether in the event of reading down; could the statute remain functional; second would the legislature have enacted the law if that issue had been brought to its notice which was being agitated before the Court. In this view of the matter , Courts have a duty to construe and apply laws to specific fact situations. Sometimes they have to construe a particular law as meaning nothing and sometimes they have to construe the law as meaning something different from the letter of the law passed by the Parliament. The offending provision or part of it is read down to the extent it is necessary to give it legal effect, or will be severed if it cannot be read down, and the remaining part and provisions of the statute will remain intact." In this judgment, the rule of reading down was adopted so as to avoid giving the term "employee aggrieved" as used in subsection (1) and the "effected employees" as used in subsection (2) of Section 19 of PEEDA Act, 2006 so as to harmoniously interpret the same and save the provision from being struck down. In earlier part of the judgment, the Hon'ble Court had also observed; "It is settled position in law that while interpreting the law or any provision of any statute all efforts are made by the Court to save the statu te by applying various tools of interpretation one of the rule of harmonious construction being rule of reading down and rule of severance. Rule of reading down, a statutory provision means that a statutory provision is generally read and or toned or narrowed down, applying restrictive meaning in its application. Rule of severance means to trim down or slice away invalid portion which is otherwise generally considered to be part of statute or…
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