Law:

Section:

JUDGMENT

ABDUL KARIM KHAN KUNDI, J.--Earlier Writ Petition No.203/86 titled "Moamber Khan v Additional Secretary Home and others" was decided on 21-3-1989 by a Division Bench comprised of Mr.Justice Mohammad Ishaq Khan and Mr. Justice Nazir Ahmad Bhatti. Facts of the case were that the Deputy Commissioner had decided the case on acceptance of the majority award of the Jirga and accordingly dismissed the suit. In appeal the appelate Court in Additional Commissioner accepted the appeal, rejected the majority award and accepted the minority award and consequently decreed the suit. The revisional Court in Additional Secretary, Home also confirmed the judgment and order of the appe late Court. The learned Division Bench accepted the-writ petition, set aside the judgments and decrees of the appelate Court and the revisional Court and remanded the case to the appelate Court with direction to decide the appeal fresh after determining whether there was committed any irregularity or procedural defect in the proceedings before the Jirga. The learned Division Bench ruled that the powers of the appe late Court to decide an appeal filed under section.11 of the provincia ly Administered Tribal Areas Civil Procedure (Special Provisions) Regulation No.II of 1975 were subject to the condition laid down in subsection (3) of section 10 obliging the Deputy Commissioner to accept a unanimous or majority award of the Jirga and decide the case accordingly in case he does not find any fault with the proceedings of the Jirga under subsection (2) of section 10 of the Regulation in which case also he can only remand or refer matter or issue to the Jirga or refer the matter or issue to a fresh Jirga.

2. Writ Petition No.28/85 titled "Mst. Taja and others v. Shamsur Rehman etc." was decided on 25-4-1989 by a Division Bench comprised of Mr. Justice Inavat Elahi Khan and Mr. Justice Wali Mohammad Khan. The facts were that wile had brought a suit for recovery of past maintenance and in the alternative for dissolution of marriage as against the husband in which an ex parte decree was passed by the Additional Deputy Commissioner, Swat, which was later on set aside on the application of the husband and the case was referred to Jirga constituted under the Regulation which submitted its award with findings to justify the dismissal of the suit. The Additional Deputy Commissioner exercising powers of the Deputy Commissioner, on acceptance of the award, dismissed the wife's suit.-She went in appeal before Additional Commissioner, who accepted the appeal, set aside the judgment and decree of the Court of Additional Deputy Commissioner and passed a decree for dissolution of marriage in favour of the wife. The husband went in revision before Additional Secretary, Home, who, on acceptance of the revision, set aside the order of the appelate Court and restored that of the original Court. The learned Division Bench entered upon the merits of the case and found that the husband had failed to perform marital obligations for three years and had also failed to maintain his wife for a period of two years and as such the wife was entitled to a decree for dissolution of marriage as rightly held so by the appe late Court. The Division Bench opined that the learned revisional Court had wrongly held that the appe late Court was not empowered to pass any order inconsistent with the award of the Jirga. It was held that the powers of the Deputy Commissioner, the original Court, under section 10 and the powers of the Government, the revisional Court under section 12 were confined not to vary or set aside a finding of the Jirga but so was not the case regarding the appelate Court who has been empowered under subsection (2) of section 11 to confirm, modify, alter or set aside any decision, decree or order appealed against except after giving the parties an opportunity of being heard and that under sub section (3) a l powers conferred on an appe late Court under the Code of Civil Procedure have been vested in Commissioner, the appelate Court under the Regulation in deciding an appeal. The learned Division Bench had accordingly upheld the orders of the appelate Court dissolving the marriage and declared the orders of the Additional Secretary, Home, the revisional Court as orders without lawful authority and to be of no legal effect.