P L D 2015 Balochistan 69
Before Muhammad Noor Meskanzai, C.J., Jamal Khan Mandokhail and
Muhammad Kamran Khan Mulakhail, JJ
MUHAMMAD AKBAR AZAD and another ---Petitioners
versus
FEDERATION OF PAKISTAN through Secretary, Law, Justice and Human Rights
Division and others ---Respondents
Constitutional Petitions Nos. 474 of 2006 and 80 of 2009, decided on 24th March, 2015.
(a) Constitution of Pakistan ---
----Art. 199 ---High Court ---Judicial review, power of ---Scope ---Legislative instrument ---While
exercising the power of judicial review, the court was hardly concerned with good or bad aspects
of the legislative instrument rather the prime, paramount and pivotal consideration (of the court)
was the constitutionality of the statute ---Court had to ensure and remain satisfied that any of the
provisions of the enactment was not violative of the Constitution.
(b) Dastoor -ul-Amal Diwani, Riasat Kalat, 1952 ---
----Preamble ---Legislative history of Dastoor -ul-Amal Diwani, Riasat Kalat, 1952 and
subsequent legislations affecting, amending and repealing the Dastoor or otherwise, traced.
(c) West Pakistan Civil Courts Ordinance (II of 1962) ---
----Preamble, Ss.1(3) & 28 & Sched. ---Dastoor -ul-Amal Diwani, Riasat Kalat, 1952, Preamble ---
Dastoor -ul-Amal Diwani, Riasat Kalat (Amendment) Ordinance (XXXII of 1984), Preamble ---
Dastoor -ul-Amal Diwani Kalat (Amendment) Act, 1989 (I of 1990), Preamble ---Central Laws
(Statues Reforms) Ordinance (XXI of 1960), Preamble & S.4(1) ---Government of Balochistan,
Notification No.Legis.6 -63/LAW/80 -II, dated 19th April, 1982 ---Constitution of Pakistan, Arts.
143 & 199 ---Constitutional petition ---Dastoor -ul-Amal Diwani, Riasat Kalat, 1952 ("Dastoor"),
applicability of ---Contention of petitioner that the said Dastoor had been repealed by Schedule to
the West Pakistan Civil Courts Ordinance, 1962, thus it did not exist on the statute book and
therefore was void and of no legal effect; that the Provincial Government was not empowered to
withdraw the applicability of West Pak istan Civil Courts Ordinance, 1962, from certain areas of
the Province and revive the Dastoor in its place ---Validity ---Section 1(3) of West Pakistan Civil
Courts Ordinance, 1962 and different notifications issued by the Government from time to time
showed that the said Ordinance was only made applicable to certain areas of the entire Province,
and its applicability in any other area of the Province was subject to issuance of a notification in
the official Gazette by the Government by specifying the particu lar date ---Said Ordinance was
never enforced in the entire Province ---Regarding the contention that Schedule to the West
Pakistan Civil Courts Ordinance, 1962, repealed the Dastoor -ul-Amal Diwani, Riasat Kalat,
1952, the said Schedule read in conjunction w ith S.1(3) of the Ordinance clearly postulated that
the Ordinance would be made applicable by the Government on a date specified by it by means
of issuing a notification stipulating the date of the enforcement of the Ordinance ---Admittedly,
when the West P akistan Civil Courts Ordinance, 1962, was enacted and its Schedule provided
for the repeal of the Dastoor -ul-Amal Diwani, Riasat Kalat, 1952, the Ordinance was not
applicable to Balochistan States Union (BSU), therefore, by no stretch of imagination it cou ld be
inferred that the Schedule which was in conflict with the enacting part of the statute (Ordinance)
could have the force of repealing the Dastoor ---So the Schedule to the said Ordinance to such
extent lost its worth and significance ---Schedule to West Pakistan Civil Courts Ordinance, 1962,
had lost its efficacy, legality and significance to the extent of repealing the Dastoor as it was in
conflict with its enacting part ---After merger of Balochistan States Union into Pakistan, first
attempt for uniform ity of laws applicable to various areas integrated into the Province of West
Pakistan was made through Central Laws (Statues Reforms) Ordinance 1960 ---Object behind the
enactment of the said Ordinance of 1960 was to extend certain laws and also to remove f rom the
statute book certain Acts/Ordinances, which had become obsolete ---Dastoor -ul-Amal Diwani,
Riasat Kalat, 1952, was expressly repealed for the first time by Central Law (Statute Reforms)
Ordinance, 1960, but reenacted with the same ink in the same se ntence by the same Ordinance of
1960 ---Dastoor -ul-Amal Diwani, Riasat Kalat, 1952, was thus declared to be a Central Statute
and it remained alive on the statute book ---Legal status of Dastoor -ul-Amal Diwani, Riasat
Kalat, 1952, had come up for considerati on in a number of cases in the Provincial High Court,
however, at each occasion it was held that the Dastoor had not been repealed in its entirety ---
Although some of the provisions of the Dastoor, corresponding to the provisions of the Code of
Civil Proced ure, 1908, were declared to have been repealed in the said cases but rest of the
provisions of the Dastoor were held to have been preserved ---Neither the Dastoor -ul-Amal
Diwani, Riasat Kalat, 1952, had been repealed by the West Pakistan Civil Courts Ordina nce,
1962 nor as a Central Statute could it be repealed within the meaning of Art. 143 of the
Constitution by a Provincial Statute ---Constitutional petition was dismissed accordingly.
Jia Ram v. Smt. Kundana Wanti and 4 others PLD 1978 Quetta 91; Yusuf Khan and 24
others v. Wadera Muhammad Siddique and 2 others 1985 SCMR 1692; Mst.Naz Bibi v. Mst.
Roz Khatoon PLD 1987 Quetta 1;.Dost Muhammad and another v. Rais Satik and another PLD
1962 (W.P.) Quetta 82 and Mir Said Muhammad and 6 others v. Mir Chakar a nd 6 others PLD
1973 Quetta 43 ref.
(d) Balochistan Civil Disputes (Shariat Application) Regulation, 1976 --
----Preamble ---Dastoor -ul-Amal Diwani, Riasat Kalat, 1952, Ss. 11 & 22 ---Civil Procedure Code
(V of 1908), S.89 -A---Constitution of Pakistan, Arts. 2A & 199 ---Constitutional petition ---
Balochistan Civil Disputes (Shariat Application) Regulation, 1976 ("Reg ulation") and Dastoor -
ul-Amal Diwani, Riasat Kalat, 1952 ("Dastoor"), vires of ---Contentions of petitioner were that
the said Regulation and Dastoor did not cater the need of the day and were discriminatory; that
the Regulation did not state the forum for non-Muslims, and it also debarred a private party to
apply against the Federal Government, the Provincial Government, a local authority, a public
corporation or a public servant acting in the discharge of his/its duty ---Validity ---Section 11 of
Dastoor -ul-Amal Diwani, Riasat Kalat, 1952, provided for amicable settlement of disputes, and
required the Qazi to necessarily try for reconciliation, which provision, was akin to S.89 -A,
C.P.C. i.e. Alternative Dispute Resolution ---Said section also provided a mecha nism for
resolving the disputes arising between the (non -Muslim) Hindu community through their
'Punchait/Jirga' ---Constitutionally no law repugnant to Holy Qu'ran and Sunnah could be enacted
(in Pakistan) and all existing laws had to be brought in conformi ty with the Injunctions of Islam
as enunciated in the Holy Qu'ran and Sunnah ---Analyzing the scheme of the Dastoor and
Regulation at such touchstone, both the laws contained specific provisions towards such end ---
For instance S.22 of the Dastoor -ul-Amal Di wani, Riasat Kalat, 1952, directed the Presiding
Officer for the decision of the matter according to Shariat ---Similarly the Balochistan Civil
Disputes (Shariat Application) Regulation, 1976, mentioned in its opening words (Preamble) that
it was a Regulati on to provide for the adjudication of certain civil disputes in the Tribal Areas of
the Province according to Muslim (Shariat) Law ---Balochistan Civil Disputes (Shariat
Application) Regulation, 1976 and Dastoor -ul-Amal Diwani, Riasat Kalat, 1952, were at a high
pedestal and enjoyed a preferential, distinguishing and a distinctive feature by having provisions
that satisfied the constitutional requirement of conforming to Injunctions of Islam as contained in
the Holy Qur'an and the Sunnah ---Constitutional pet ition was dismissed accordingly.
(e) Constitution of Pakistan ---
----Part. II, Ch. 1 [Arts.8 to 28] ---Fundamental Rights ---Injunctions of Islam as contained in the
Holy Qur'an and Sunnah ---Fundamental Rights as enshrined/given in the Constitution were not
supposed to violate the norm(s) of Islam.
(f) Constitution of Pakistan ---
----Art. 199 ---Constitutional petition before the High Court challenging vires of a legislative
instrument ---Maintainability ---"Aggrieved person", requirement of ---Scope ---While challenging
the vires of a legislative instrument the question of "aggrieved party" or person as contemplated
by Art. 199 of the Constitution was hardly treated a hurdle.
Muhammad Akbar Azad, Hadi Shakeel Ahmed (Petitioner in person) and Muhammad
Qahir Shah for Petitioners.
Sher Shah Kasi, DAG and Shai Haq Baloch, A.A. -G. for Respondents.
Date of hearing: 1st December, 2014.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, C.J. ---As the facts and questions of law in
Constitutional Petition No.474 of 20 06 and Constitutional Petition No.80 of 2009 are
interrelated, mainly revolving around Dastoor -ul-Aman Diwani Riasat Kalat (hereinafter referred
as 'Dastoor'), West Pakistan Civil Courts Ordinance, 1962 (hereinafter referred as "Ordinance
1962), and Baloch istan Civil Disputes (Shariat Application) Regulation, 1976 (herein -after
referred as 'Regulation 1976') therefore, we intend to dispose of them reciprocally by means of
this common Judgment.
2. Petitioner Muhammad Akbar Azad in Constitutional Petition N o.474 of 2006, principally
has laid down the foundation of his case upon section 28 of the Ordinance 1962, which
according to him had repealed 'Dastoor' as a whole, thus, it no more exists on Statute Books and
therefore, Notifications issued by the Provinc ial Government from time to time, extending
application of 'Dastoor' in different areas of Province were without jurisdiction. Simultaneously
he has also came up with the contention that there are practical difficulties in implementation of
procedure conta ined in Dastoor, as after enactment of Devolution Plan in 2001, wherein the
designation of Assistant Commissioner and Deputy Commissioner ceases to exist, it had made
redundant, sections 4, 5, 11 and 20 of 'Dastoor'. As regards 1976 Regulation, according t o
petitioner there is no approval of the President of Pakistan and it also suffer from various legal
ambiguities, for instance; it does not state about the Forum for non -Muslims; proviso to
subsection (1) of section 2 of Regulation 1976 debars private part y to apply against the Federal
Government, the Provincial Government, a local authority, a public corporation or a public
servant acting in the discharge of his/its duty; its section 4(1)(a) and (b) provides pecuniary
jurisdiction of Qazi and Majlis -e-Shoo ra below fifty thousand, which does not sound proper due
to growing tendency of currency's rate of inflation. And that, in all other Provinces of Pakistan,
there is one set of law regulating adjudication of civil disputes but in Balochistan Province, there
are three set of law i.e. 'Dastoor', 'the Ordinance 1962,' and Balochistan Civil Disputes (Shariat
Application) Regulation, 1976 (hereinafter referred as the Regulation 1976), which are repugnant
and in derogation of Articles 8, 20 and 25 of the Constitut ion of Islamic Republic of Pakistan.
With these contentions, he lastly prayed as follows: --
"It is, therefore, prayed that this Hon'ble Court may kindly be pleased to declare: --
(i) that the Dastoor -ul-Amal Diwani Riasat Kalat, 1952, and the Regulation, are no more
existing laws/not available in the Statute Book, void and of no legal effect;
(ii) That Civil Courts Ordinance, 1962, stands extended, operative and applied to whole of
the Province of Balochistan;
(iii) That the uniformity of l aw prevails throughout as far as civil litigation, and appearance
before the alike competent Courts are concerned;
(iv) And/or other declaration which may be found best suited as regards administration of
justice in this Province as far equality of the c itizens is concerned."
3. Petitioner Hadi Shakeel Ahmed, Advocate in Constitutional Petition No.80 of 2009, is
fundamentally aggrieved of the Notifications of February 16, 2009, reviving and enforcing
application of 'Dastoor' by withdrawing application o f the Ordinance 1962, in certain areas of
Balochistan. It is his case that, once the Provincial Government has notified the extension and
enforcement of 'the Ordinance 1962' and thereafter Civil Courts were established, infrastructure
was laid down, numero us Judicial Officers were appointed, including their staff and in as much
as, budget was allocated; then abruptly the Government has no lawful authority to reverse its
application and revive 'Dastoor' in said areas, once the Provincial Government notified the date
of effectiveness of 'the Ordinance 1962', it ceases to have jurisdiction to withdraw the same in
view of the doctrine of locus poenitentiae and inasmuch as, there is no provision in '1962
Ordinance', empowering the Provincial Government to do so. On the strength of these
contentions, the petitioner prayed as under: --
"It is, therefore, humbly prayed that this Hon'ble Court may graciously be pleased to
accept the petition in the following terms:
A. Declaring that the Provincial Government has n o lawful authority and jurisdiction to
withdraw the Application of 1962 Ordinance from the areas where it has already been extended
and their such act is highly illegal, unjust, arbitrary, and in violation of the provisions of the
Constitution;
B. Also d eclaring that the Notifications No.6 -63/law/80 -VI/1810 and 6 -63/Law/80 -VI/1920
dated 16th February, 2009, are totally illegal, unjust, in violation of sections 24 and 27 of 1952
Dastoor as well as ultra vires to the Constitution of Pakistan and therefore o f no legal
consequences;
C. Any other relief deemed .fit and appropriate in the circumstances of the case may also be
awarded along with the cost of petition, in the interest of justice."
4. Mr. Muhammad Akbar Azad, the petitioner, in Constitutional Pe tition No.474 of 2006
reiterating the facts averred in the petition and throwing light on the legislative history of
Dastoor -ul-Amal Dewani, Kalat, and the laws enacted thereafter having the force of amending,
repealing the existing laws submitted that Das toor-ul-Amal Dewani Kalat and the Regulation are
no more existing laws nor avaiable on the statute book, being void and of no legal effect. It was
further maintained that section -28 of The Civil Courts Ordinance, 1962 expressly repeals the
Dastoor -ul-Amal Dewani Kalat and thereafter there was no occasion for survival of the Courts
established under 'Dastoor ul Amal Dewani, Kalat 1952'. According to the petitioner by
enforcing a couple of laws in Balochistan simultaneously, the people of Balochistan stand
discriminated qua the provision of justice. The Civil Courts constituted and territorial jurisdiction
determined by Government of Balochistan under sections 24 and 27 of the Dastoor -ul-Amal
Dewani Kalat were absolutely illegal, as section 24 deals with the f orum of appeal and section 27
empowers the High Court to issue instructions.
5. In view of section 24 -A though 'Wazir Al M'arif' has been substituted with the word
'Provincial Government' yet it does not authorize the Government of Balochistan to issue
Notification within the ambit of that section for any purpose. So far as Regulation is concerned
under the said law the Qazi exercises a limited pecuniary jurisdiction, besides the system stands
collapsed, in case, the Central Government or the Provincial G overnment are party. According to
the petitioner the Dastoor was framed and promulgated for the people of Ex -Kalat State who had
great regard for 'Shariat' where 'Ahle Hanud' also lived in a considerable minority and dominated
business activities and, Dast oor provides them the settlement of Civil Disputes through 'Punchait'
and Jirga consisting of equal number of Muslims and Non -Muslims members. The Qazis were
appointed after due consideration and deliberation and were men of integrity, however; after
estab lishment of Police Stations and the affairs took the 'U turn' When non -local qazis were
exported who were found men of low integrity with the result the basic purpose of creating
courts of Qazis stood frustrated. In such circumstances a law that has alread y been repealed
cannot be further allowed to exist and occupy the field. Needless to observe that during pendency
of this petition on 13 -10-2009 it surfaced that respondent No.5 has died, however; the petitioner
stated that he does not seek any relief agai nst respondent No. 5, therefore, he wanted to delete the
name of respondent No. 5, hence no amended title was filed.
6. Mr. Hadi Shakeel Ahmed petitioner in Constitutional Petition No.80 of 2009 submitted
that he came across a news item published in News Paper to the effect that the Provincial
Cabinet has resolved to enforce 'shariat' in the Province and there from it was reasonably
concluded that the Agenda is to withdraw the Civil Courts Ordinance, 1962 and to re -enforce the
Dastoor -ul-Amal Dewani Kalat in certain areas where from its application was withdrawn. It was
further contended that the Civil Courts Ordinance, 1962 being a uniformed law has rightly been
applied in Balochistan and the withdrawal of Dastoor and Regulation in certain areas of the
province was an act which served the purpose and was beneficial for the public as a whole.
According to the petitioner though Ordinance 1962 repealed several laws regulating the
establishment of Civil Courts in different parts of the province including Baloc histan and the
schedule thereof shows that the Dastoor has also been repealed, and as per section 1 subsection
(3) of West Pakistan Civil Courts Ordinance, it was applied to Quetta Division, however; its
applicability to rest of the areas as per section 1, sub-section (3) was subject to a Notification to
be issued by the Government by specifying the date, therefore, the system of justice for
regulating the Civil disputes as contained in Dastoor remained enforced in certain areas. He
further stated that on 1 9th January, 1962 the Civil Courts Ordinance was enforced in certain
areas of Balochistan i.e. Bolan Pass including the Railway Line from the boarder of Sibi Tehsil
up to the border of Jhatpat Tehsil and from the border of Bolan and Quetta Tehsil up to the
border of Nushki Tehsils, but excluded the Railway line falling in the Sharorrud Tehsil. Similarly
by means of Regulation No. II of 1963, the West Pakistan Civil Courts Ordinance, 1962 was
extended to the Tribal Areas of Quetta Division. Perhaps in the ye ar 1975 the Balochistan
Adaptation of Laws Order, 1975 was promulgated which substituted the words 'West Pakistan'
with 'Balochistan' and in this way, after adaptation, Civil Courts Ordinance, 1962 was named as
Balochistan Civil Courts Ordinance, 1962. He further stated that besides the above laws civil
disputes in the rural areas were also being regulated through Civil Procedure (Special Provisions)
Ordinance, 1968 which was withdrawn by the Provincial Government in view of the judgment
passed by this Cour t in the case of Mr. Aziz Ullah Memon, Advocate v. The Government of
Balochistan. The Provincial Government from time to time have been issuing Notifications
notifying the enforcement of 1962 Ordinance, within the meaning of section 1(3) in the different
parts/areas of Balochistan and simultaneously also notifying the territorial limits of the Civil
Courts, functioning under the Dastoor, 1952 in view of its section 24. After extension of
Ordinance, 1962 a couple of courts were established, infrastructure wa s set up, numerous
Judicial officers were appointed and for running function of the Courts the subordinate staff was
recruited and budget was allocated by the Government. However; abruptly and without taking
into consideration the legal aspects withdrawal of the Ordinance and reinforcement of Dastoor -
ul-Amal Dewani, Kalat 1952 and the Regulation 1976 was beyond the jurisdiction of the
Provincial Cabinet as both the laws do not provide reinforcement after their withdrawal. It was
urged with vehemence that tw o amendments have been made in the Dastoor -ul-Amal Dewani,
Kalat by Central Government, thus, being the procedural law it forms part of the concurrent list
of the Constitution of Islamic Republic of Pakistan and, as such, any amendment or its
enforcement i n any area could only be made with the prior approval of Federation/Parliament in
view of Article 143 of the Constitution. Keeping in view the said analogy the provincial Cabinet
does not have the sole power to amend, extend or curtail the enforcement of D astoor, 1952 to
any area, therefore, the act of Cabinet in withdrawing the application of Ordinance, 1962 and
reinforcing the Dastoor, 1952 is totally without lawful authority and jurisdiction and is in
violation of Article 143 of the Constitution, therefo re, the Notification may be set aside.
7. Mr. Muhammad Akbar Azad (petitioner in Constitutional Petition No., 474 of 2006),
filed an application for being impleaded as co -respondent in Constitutional Petition No. 80 of
2009, vehemently opposed the submis sions and stated that the petitioner is not an aggrieved
person nor has he got any locus standi to file the instant petition. It was maintained that the
petitioner does not reside within the area where Shariat Regulation Act and Dastoor -ul-Amal
Dewani Kala t are enforced nor even any suit has been filed by him as a party under either of the
Acts, therefore, by no stretch of imagination he could be treated as an aggrieved person within
the meaning of Article 199 of the Constitution of Islamic Republic of Paki stan to file the instant
Constitutional Petition. He canvassed that while admitting this petition an interim order was
passed which was without jurisdiction as the Constitutional Petition No.474 of 2006 titled as
Muhammad Akbar Azad v. Federation of Pakist an and others filed by him covers the present
controversy and for deciding the issue a Full Bench has been constituted, therefore, the Division
Bench cannot preempt the powers of larger Bench.
8. The learned Advocate General vehemently opposed the submissions by maintaining that
neither Dastoor -u1-Amal Dewani Kalat has been repealed nor it could be presumed/ assumed
that Dastoor -ul-Amal Dewani Kalat does not exist on the statute book. The Act applies with full
force in the areas where it has been ma de applicable. The Dastoor -ul-Amal Dewani, Kalat 1952,
being a Central statute occupies the field though its certain provisions corresponding to the
provisions of C.P.C. stand repealed by virtue of Central Law (Reforms of Statute) Ordinance,
1960, however, rest of the provisions of Dastoor -ul-Amal Dewani Kalat are still operational. It
was further maintained that Dastoor -ul-Amal Dewani, Kalat is a law that contains specific
provision for the decision of the matter under the 'Shariat' and by having such prov ision therein,
it satisfies the Constitutional requirement as contemplated by Article 2 -A of the Constitution of
Republic of Pakistan, 1973 and this aspect of the Dastoor -ul-Amal Dewani Kalat gives it a
preferential character over other procedural laws. It was submitted that in fact except three
Notifications rest of the Notifications issued under West Pakistan Civil Courts Ordinance, do not
satisfy the requirement of section -1 subsection (3) and, therefore, may not have any affect. He
maintained that Dasto or-u1-Amal Dewani, Kalat being a law having provisions akin to 89 -A of
Alternative Dispute Resolution (ADR), within the meaning of section 11 of Dastoor -ul-Amal
Dewani, Kalat, besides having a provision for resolving the dispute among Hindu community
and, thus, another feature of public importance. He further stated that the government is well
competent to enforce or withdraw any of the laws as mentioned herein above. However; by
enforcement or withdrawing any of the laws neither system has been affected no r the budget has
been disturbed nor the set up of the courts and the employees have been collapsed. He requested
for dismissal of the petitions.
9. After hearing the arguments the case was reserved for announcement of judgment when a
Civil Miscellaneous Application No.428 of 2015, was filed on 5th March, 2015 by Mr. Aman
Ullah Kanrani, Advocate, on behalf of Mr. Ghulam Azam Qambrani, Advocate. The contents of
application read as under: --
(1) That instant Constitution Petition was heard and reserved by t his honourable Court on 1 -
12-2014.
(2) That it is worth while to mention here that the applicant/ respondent preferred an
application before this (sic) honourable Court having No. 393 of 2009 as well as C.M.A. No.215
of 2009 and also applicant approached this Honourable Supreme Court of Pakistan for affording
opportunity of hearing which was allowed vide Order dated 17 -9-2009 by honourable Supreme
Court of Pakistan in Constitutional Petition No.20 -Q of 2009. Copy of the same is annexed, as
such on strengt h of the same, attached arguments are being preferred for consideration and
disposal of instant C.P. on its own merits.
Prayed accordingly.
10. Fortunately, prior to decision of the matter in question the view point of applicant,
Ghulam Azam Qambrani, the intervenor surfaced through the written arguments, in absence
whereof, we would have been handicapped. Since the intervenor opposed the petitions tooth and
nail in his written arguments, therefore, we would proceed to decide the petitions in the prese nt
form without formal amendment therein.
11. At the very out set, let it be clarified that while exercising the power of judicial review,
the Court is hardly concerned with good or bad aspects of the legislative instrument rather the
prime, paramount an d pivotal consideration is the constitutionality of the statute, of course the
Court to ensure and remain satisfied that any of the provisions of the enactment is not violative
of the Constitution. In this case, the constitutionality of the Dastoor and Sha riat Regulation Act is
not under challenge. However, there is an ancillary argument that the laws are discriminatory and
do not cater the requirement of the day. So to address the main issue we would like to formulate
the following points for determination :--
(i) Whether Dastoor -ul-Amal, Dewani, Kalat has been repealed by Ordinance, 1962 or
otherwise?
(ii) Whether Dastoor and Regulation do not exist on Statute Book?
12. So, in such state of affair, we would like to confine our discussion mainly to the above
referred contentious propositions.
13. It may be observed that Constitutional Petition No.80 of 2009 was filed on 23 -2-2009 and
on the same day following order was passed: --
"Mr. H. Shakil Ahmed, learned counsel for the petitioner contended tha t vide Notification
dated 7 -11-2007 the Government of Balochistan was pleased to redefine and extend the
territorial limits of the various Districts of Balochistan, but vide subsequent notification dated
16-2-2009 the aforementioned notification has been w ithdrawn and further contended that since
the cases are pending in the different courts and due to withdrawal of the same inconvenience
may be caused to general public and an anomalous position has occurred.
The contentions raised need consideration.
Admit. Notice be issued to the A.G. and Standing Counsel.
C.M.A. No.215 of 2009: ---In the meanwhile the operation of the impugned Notifications
No. Legis: 6 -63/Law/80 -VI/1810, Legis: 6 -63/law/80 -V1/1920 and Legis: No.6 -63/Law/80 -
VI/2530 all dated I6th February, 2009 are suspended".
14. Feeling aggrieved and dissatisfied with the above referred interim order, the intervener
Ghulam Azam Qambrani, Advocate filed Civil Petition No. 20 -Q of 2009 before the Hon'ble
Apex Court. The Hon'ble apex Court while s uspending the interim order passed by this Court,
observed as under: --
"It is, inter alia, contended that the legal, factual and Constitutional implications have not
been taken into consideration while admitting the Constitutional petition and suspendin g
Notification No. Legis -6-63/Law/80 -VI/1810, Legis 6 -63/Law/80 -VI/920 and Legis:6 -
63/Law/80 -VI/2530 dated 16th February, 2009. It is also pointed out that even no notice was
given to the learned Attorney General on behalf of Federation of Pakistan and the Advocate
General which is violative of the relevant provisions of law. It is further argued that due
safeguard has been provided to the litigant public in the Notification dated 16 -2-2009 which has
been ignored by the learned High Court. The said Notifica tion is reproduced herein below for
ready reference:
No. Legis: 6 -63/Law/80 -VI/1920: In exercise of the powers conferred by subsection (3)
of section 1 of the Civil Courts Ordinance, 1962 read with section 20 of the Balochistan General
Clauses Act, 1956 , the Government of Balochistan is pleased to withdraw Notification No.Legis -
6-63/Law/80 -V1/ 8250 -8350 dated 7th November 2007 issued by this Department, with
immediate effect.
(2) The withdrawal of the said Notification shall not effect any proceedings immediately
pending before any court or any authority under the provisions of any Law before the issuance of
this Notification.
BY ORDER OF
GOVERNOR BALOCHISTAN.
(2) In view of what has been stated herein above, notice be given to learned Attorney
Gene ral, Advocate General and Provincial Law Secretary for a date to be fixed by the office.
Meanwhile, the operation of impugned order shall remain suspended. To be fixed during next
session.
15. We have considered the arguments of learned counsel for the p arties and gave our deep
consideration to respective contentions. In order to comprehend the controversial and contentious
proposition more appropriately in the light of the contentions of the parties, one must remain
alive, with the legislative History of Dastoor -ul-Amal Diwani, Kalat, and the subsequent
legislations whether affecting, amending, repealing Dastoor or otherwise.
16. Consequent upon promulgation of the Independence of India Act, 1947 on and from 14
August, 1947, two Dominions namely Pakista n and India were established. However, through
stand still agreement the Princely State in the Sub -Continent were provided the opportunity and
option either to join India or Pakistan or declare their respective independence. On 14th August,
1947 the God gi fted Country i.e. Pakistan came into being, however, the States of Kalat, Makran,
Kharan and Lasbella did not join Pakistan. The States of Kharan, Makran and Lasbella through
execution of separate instruments of Accession on 17th March, 1948 and Kalat Stat e on 27th
March, 1948 acceded to Pakistan. After accession to Pakistan the princely States formed a Union
with the name of Balochistan State Union (B.S.U.). The Balochistan State Union (B.S.U.)
enacted certain laws including Dastoor -ul-Amal Dewani, Kalat w hich was abolished in 1951 and
reenacted in 1952. In 1960 the Central Law Reforms 1960 was promulgated with retrospective
effect i.e. 15th October, 1955. This Ordinance repealed the Dastoor -ul-Amal Diwani, Kalat and
reenacted the same. Thereafter, in 1962 Civil Courts Ordinance was promulgated which
conceived the present controversy.
17. It was contended with vehemence that by virtue of section 28 of the Ordinance and the
schedule provided thereto, the Dastoor -ul-Amal Dewani, Kalat stands repealed in
toto/completely. To appreciate this contention, we deem it appropriate to adhere/resort to the
relevant provision of Civil Court Ordinance (the preamble of the Ordinance) the opening words
of the Ordinance read as under: --
"An Ordinance to amend and consolidate the law relating to Civil Courts in the province
of West Pakistan whereas it is expedient to amend and consolidate the law relating to Civil
Courts in the province of West Pakistan. Now, THEREFORE, in pursuance of the presidential
proclamation of the seventh day of October, 1958 and having received the previous instruction of
the President, the Governor of West Pakistan is pleased, in exercise of all powers enabling him in
that behalf, to make and promulgate the following Ordinance: --
This Or dinance may be called the West Pakistan Civil Courts Ordinance, 1962.
"(2) It extends to the whole of the Province of Punjab/Sindh/ N.W.F.P./Balochistan.
(3) It shall come into force at once in the Divisions of Bahawalpur, Dera Ismail Khan,
Hyderabad, Khairpur, Lahore, Multan, Peshawar, Quetta, Rawalpindi and Sargodha and the
District of Karachi; and in the remaining parts of the Provinces or any specified area or areas
thereof, it shall come into force on such date or dates as Government may, by notifi cation in the
official Gazette, appoint in this behalf."
18. The above reproduced provision conceives two undisputed facts.
(1) The Ordinance was applied only to Quetta Division and secondly its applicability in any
other area of the Province is subjec t to issuance of a Notification in the official Gazette by the
Government by specifying the particular date. Now we would examine the Notifications
governing the subject issued by the Government of Balochistan. First Notification was issued on
19th April, 1982, which reads as under:
Dated Quetta, the 19th April, 1982
No Legis. 6 -63/LAW/80 -II. In exercise of the powers conferred by subsection (3) of
section 1 of the Balochistan Civil Courts Ordinance, 1962 (W.P. Ordinance II of 1962), the
Government of Balochistan is pleased to direct that the said Ordinance shall come into force in
the District of Lasbella with immediate effect.
BY ORDER OF THE GOVERNOR BALOCHISTAN
SECRETARY LAW"
19. The above reproduced Notification was the first relevant Notificat ion specifying the area
with reference to section -1 subsection (3) of the Ordinance, 1962. Similarly on 7th October,
1986 District and Sessions Judges were appointed as Presidents Majlis -e-Shoora Kalat, Turbat,
Khuzdar, Jaffarabad and Sibi. The above refer red Notifications reflect that Civil Courts
Ordinance has not been made applicable in the entire Province of Balochistan. Though it was
made applicable to some of the areas and withdrawn subsequently but undisputedly the
Ordinance has never been enforced t o whole of the Balochistan. Although some of the
Notifications showing the determination of Civil Districts with reference to section 4 of
Ordinance, 1962 have been issued, yet these Notifications do not satisfy the requirement of
section 1 subsection (3) of the Ordinance. The perusal of the Notifications referred to
hereinabove clearly demonstrates that the first Notification enforcing Civil Courts Ordinance in
an area where Dastoor is enforced was issued in 1982 whereas Dastoor is shown to have been
repea led by the repealing section i.e. 28 of the Ordinance, 1962, since its inception. The
proposition pressed into service by the petitioner is not acceptable even to a man of common
prudence what to take of legal fraternity, therefore, we cannot accept such m isconceived notion,
unfounded proposition as it is absolutely beyond comprehension, contrary to the law, logic and
rational. By holding the view we are fortified with the dictum laid down by this Court in full
Court judgment titled as 'Jia Ram v. Smt. Kund ana Wanti and 4 others' reported in PLD 1978
Quetta 91, (relevant at page -92) wherein it was observed as under: --
"Civil Courts of the nature of the Court of District Judge, Additional District Judge and
Civil Judge are the creation of the West Pakistan Civil Courts Ordinance, 1962 (hereinafter
called the Ordinance). Although the Ordinance extended to the whole of the Province of West
Pakistan, as it then was; but it was not enforced in the Division of Kalat by virtue of subsection
(3) of section 1 there of. This is perhaps because the policy of the Government is to continue the
present Courts of Kazi, constituted under the Dastoor -ul-Amal Diwani Kalat (hereinafter called
the Dastoor). The Ordinance, by its section 28, repeals, among other laws, the Dastoo r as well.
But because the Ordinance is not enforced in the areas of the former Kalat Division therefore
such repealing provisions do not come into play in that area and the result is that the Dastoor
stays in the field. In the absence of enforcement of th e Ordinance in the areas of former Kalat
Division, the power to create civil districts (section 4), and to appoint District Judges thereto
(section 5), in such areas is not available to the Government or for that matter to the High Court.
Any notification therefore, which notifies any appointment of a District Judge, is without lawful
authority and is, to that extent, of no effect."
This judgment was approved by the Hon'ble Supreme Court in its judgment titled as
'Yusuf Khan and 24 others v. Wadera Muham mad Siddique and 2 others' reported in 1985
SCMR page -1692 (relevant at page -1698), it was observed as under: --
"12. ------------------------------------------------------------------------------
------------------------------------------------------------------------------
Looked at in this context this two -tiered forum provided in the Dastoor -ul-Amal does not
find any parallel in the Code of Civil Procedure not at least the Court mentioned the rein.
Therefore notwithstanding, as argued, sections 3 and 4 read with the relevant item in Second
Schedule being applicable to some of the other provisions of the Dastoor -ul-Amal so as to render
them as repealed by the said Ordinance, the provisions conta ined in sections 7, 20 and 22 in so
far as the present discussion is concerned, it has to be held, have not been repealed and/or re -
enacted by the Code of Civil Procedure. That being so, the jurisdiction of the Deputy
Commissioner as a Hakim -e-Adalat would continue to be determined by section 7 of the Dastoor
regarding the power to reject the plaint on the ground of limitation. And as section 7 does not
permit him to be decided the case by rejection of the plaint on ground of limitation, therefore, the
decision in this case of the Deputy Commissioner of rejecting the plaint or as it also appears
dismissing the suit on merits, was without lawful authority and has rightly been set aside by the
High Court.
(13) The decision of the Full Bench of Baluchistan Hi gh Court in the case of Jai Ram PLD
1978 Quetta 91, already noticed relied upon by the learned Advocate -General and the learned
counsel for the respondents undoubtedly is relevant to the present discussion. There it was held
that the Deputy Commissioner ac ting by virtue of the powers conferred by section 7 of the
Dastoor -ul-Amal, has no power to give a final or binding judgment. It lays down the correct law
and is thus approved and in so far as the controversy involved in the present case is concerned.
The other questions discussed therein do not require any comment which might become
necessary as and when a case comes before this Court. The same for this reason accordingly is
being avoided. It is however observed that whenever a similar question arises the relevant
provisions of the Dastoor -ul-Amal and the Code of Civil Procedure would be put in juxtaposition
and then after comparison it would have to be decided whether by virtue of Ordinance XXI of
1960 any of the provisions of the Dastoor stand repealed an d re-enacted in the Code of Civil
Procedure by virtue of Ordinance XXI of 1960."
20. So far as the argument that schedule to Ordinance shows the Dastoor -ul-Amal Dewani,
Kalat, has been repealed is concerned, of course, prim facie, this assertion has got sufficient
force but on legal analysis of the proposition, the position is other way round. Here the schedule
if read in conjunction with section 1 subsection (3) of the Ordinance which clearly postulates that
this Ordinance will be made applicable by the Government on a date specified by it by means of
issuing a Notification stipulating the date of the enforcement of the Ordinance. Admittedly, when
the Ordinance was enacted and the schedule to the Ordinance provided for the repeal of the
Dastoor -ul-Amal De wani Kalat, the Ordinance was not applicable to Balochistan States Union
(BSU), therefore, by no stretch of imagination it could be inferred that the schedule which is in
conflict with the enacting part of the Statute could have the force of repealing the Dastoor. So the
Schedule to such an extent must loose its worth and significance. Therefore, we have no
hesitation to hold that the Schedule to Ordinance, 1962 has lost its efficacy, legality and
significance to the extent of repealing Dastoor as it is in conflict with its enacting part.
21. We know, the Dastoor -ul-Amal Dewani, Kalat, having been declared a Central Law by
Central Laws (Reforms Statute) Ordinance XXI 1960 with retrospective effect. Dastoor -ul-Amal
Dewani, Kalat 1952 has been amended twice. The then Hon'ble Chief Justice High Court of
Balochistan during the course of inspection observed some lapses and flaws, as such, realized the
need and necessity of an amendment in the Dastoor. So, a letter dated 20th April, 1982 was
addressed by the Regi strar of this Court to the Law Department, Government of Balochistan
which reads as under: --
"I am directed to state that under section 20 of the Dastur -ul-Amal Diwani, Kalat as
applicable in Civil Districts of Kalat and Khuzdar, the suits are instead/f iled in the courts of Naib
Tehsildar, Tehsildar, Assistant Commissioner and Deputy Commissioner according to the
valuation of the subject matter. The pecuniary jurisdiction of the Courts is as under: -
(1) Naib Tehsildar .. ... Upto Rs.1,000
(2) Te hsildar . ... Upto Rs. 2,000
(3) Asstt: Commissioner ... Upto Rs.10,000
(4) Deputy Commissioner ... Upto Rs.10,000
I am further directed to state that in terms of section 7 of the Dastur -ul-Amal Diwani
Kalat, the above said courts are to o btain the written statements from the defendants and then
after framing issues the cases are to be referred to the courts of respective Qazis for adjudication
and decision.
I am also directed to state that the honourable Chief Justice during the course of
inspection of various courts at Turbat, Pasni, Punjgoor and Uthal etc. etc. has observed that this
procedure is time consuming and delay is occasioned in the trial of cases. Further there is no
provision for the grant of interim relief and thus there is likelihood of serious prejudice being
caused to the valuable interest of the litigants rendering the suits infructuous.
I am, therefore, directed to request that sections 7 and 20 of the Dastoor -ul-Amal Diwani
Kalat may kindly be admended accordingly so that the suits are instituted directly in the courts of
respective Qazis istead of Naib Tehsildar, Tehsildar, Assistant Commissioner and Dy.
Commissioner and as consequence, Section 23 of Dastoor -ul-Amal Diwani Kalat deleted."
22. It would be benefici al to reproduce the first amendment in Dastoor -Ul-Amal Dewani,
Kalat, 1952:
Second amendment.
This amendment was made in the light of suggestion.
" .....The following Act of Majlis -e-Shoora (Parliament) received the assent of the
President on the 31st December, 1989 and is hereby published for general information: --
Whereas it is expedient further to amend the Dastoor -ul-Amal Diwani State Kalat, 1952,
for the purpose hereinafter appearing;
It is hereby enacted as follows: --
(1) Short title and commencement. ---(1). This Act may be called the Dastoor -ul-Amal
Dewani State Kalat (Amendment) Act, 1989.
(2) It shall come into force at once.
(3) Insertion of new section (26 -A) in the Dastoor -ul-Amal Diwani State Kalat, 1952. ---In
the Dastoor -ul-Amal Diwani State Kalat, 1952, after section (26) the following new section shall
be inserted namely: --
"(26-A). The President Majlis -e-Shoora may call for the record of any case pending in
any Court subordinate to him and transfer the same for disposa l or trial to any other such Court."
23. Section 4 of West Pakistan Family Courts Act, 1964 would further clarify the position
which reads as under: --
"4. Qualification of Judge. ---No person shall be appointed as a Judge of Family Court
unless he is o r has been or is qualified to be appointed as a District Judge, an Additional District
Judge, a Civil Judge or a Qazi appointed under the Dastur -ul-Amal Diwani Riasat Kalat."
(emphasis laid by us).
24. While enacting Shariat Regulation Act, 1976 a particular reference with regard to
affixation of court fee was made to the provision of Dastoor which reads as under: --
"6-(d) The fees to be paid to the Courts of Qazi and Majlis -e-Shoora, and for processes
issued therefrom, and the manner in which su ch fees shall be levied; and"
25. The then Hon'ble Acting Chief Justice of High Court of Balochistan (Mr. Justice Ajmal
Mian) as then his lordship was and subsequently became the Chief Justice of Pakistan, while
discussing the applicability of Laws in Ba lochistan in a judgment titled as 'Mst. Naz Bibi v. Mst.
Roz Khatoon' reported in PLD 1987 Quetta page -1 (relevant at pages -3 and 4), it was observed
as under: --
"2. Before dilating upon their submissions; it may be appropriate to observe that in
Baloch istan, there are four parallel laws for adjudication of civil disputes in their respective
areas, namely... (i) Dastur -ul-Amal Diwani Kalat, 1952 (hereinafter referred to as the "Dastoor")
which is applicable to the area which was known previously as, Balu chistan States Union, (ii)
Baluchistan Civil Disputes (Shariat Application) Regulation, 1976 which is applicable to some
tribal areas, (iii) Civil Procedure (Special Provisions) Ordinance, 1968, which is applicable to the
areas specified in the first sched ule to the said Ordinance and (iv) General Civil Laws, which are
applicable to the areas known as "A" areas, which comprise of inter alia, Quetta City, Sub -
Divisions Jhatpat and Usta Muhammad and Hub, etc."
All the above referred and reproduced amendmen ts and observations in the judgment
shall show that Dastoor remains alive on the Statute Book.
26. We shall see that after the merger of Balochistan States union into Pakistan, first attempt
for uniformity of Laws applicable to various areas integrated i nto the province of West Pakistan
was made through Ordinance XXI of 1960 Central Laws (Statues Reform) Ordinance 1960. The
object behind the enactment of the Ordinance XXII of 1960 was to extend certain Laws and also
to remove from the Statute Book certain Acts/Ordinances, which have become obsolete. As a
matter of fact Dastoor -ul-Amal Dewani was expressly repealed for the first time by Central Law
(Statute Reforms) Ordinance, 1960 but re -enacted with the same ink in the same sentence by the
same Ordinance. This situation converted the very status of the Dastoor -ul-Amal Dewani, Kalat
and it was declared a Central Statute. The operative portion of the Ordinance is reproduced: --
"An Ordinance to reform the Central Statute -book: --
Whereas the incorporatio n of certain former Provinces, Acceding States and Tribal Areas
into the Province of West Pakistan by the Establishment of West Pakistan Act, 1955, has
rendered it expedient that certain changes should be made in the laws and that certain laws
should be ex tended to parts of the new Province to which they had not extended before;
And whereas such extension has been agreed upon in consultation with the Provincial
Government of West Pakistan and the other authorities concerned;
And whereas it is expedien t to remove from the Statute -book certain Acts and Ordinances
which have become obsolete or have discharged their function;
Now, therefore, in pursuance of the Proclamation of the seventh day of October, 1958,
and in exercise of all powers enabling him in that behalf the President is pleased to make and
promulgate the following Ordinance: --
(1) Short title. ---This Ordinance may be called the Central Laws (Statute Reform) Ordinance,
1960."
------------------------------------------------------------- -----------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
(4) Repeal and re -enactment of certain laws in force in certain Acceding States before their
incorporation into West Pakistan. (1) Subject always to the provisions of subsecti on (2) of
section 3, where the operation of any Central Act or Ordinance has been extended by an
amendment indicated in the Second Schedule to any area which, before the fourteenth day of
October, 1955, formed part of the territories of an Acceding State, any law in force in that area
before that date and corresponding to the provisions of such Act or Ordinance shall stand
repealed and shall be deemed to have been re -enacted by such Act or Ordinance, as amended by
this Ordinance, as if such law were a Centr al Act, and the provisions of the General Clauses Act,
1897 (X of 1897), shall apply accordingly."
27. A conscious study of judicial history of Balochistan over the last few decades vis -a-vis
Dastoor -ul-Amal Dewani Kalat, 1952 would reveal that the legal status of Dastoor -ul-Amal
Dewani, Kalat, came for consideration in a number of cases. However, at each occasion it was
held that Dastoor -ul-Amal Dewani Kalat has not been repealed in its entirety. Of course, some of
the provisions, corresponding to the pr ovisions of the C.P.C. were declared to have been repealed
but rest of the Provisions were held to have been preserved. In this regard an authoritative
judgment was passed by this Court in the case titled as 'Dost Muhammad and another v. Rais
Satik and ano ther' reported in PLD 1962 (W. P.) Quetta 82, it has been held as under: --
"(7) We now take up the question of the effect of the promulgation, on the 9th of June 1960,
of the President's Ordinance XXI of 1960 on the jurisdiction of the existing Courts in the Kalat
area and the procedure applicable to proceedings before them. As already, stated, this Ordinance
is called the Central Laws (Statute Reform) Ordinance, 1960.
(6) Adaptations. ---As soon as may be after the commencement of this Ordinance such
adaptations as the President may see fit to make in the Central Acts and Ordinances shall be
effected in such Acts and Ordinances as reformed by this Ordinance."
(8) It seems to us that one of the purposes to which the Ordinance is directed is to secure th e
unification of laws applicable to the various areas which were integrated into the Province of
West Pakistan with effect from the 14th of October 1955, and to achieve this end, certain Central
Acts and Ordinances have been extended so as to apply to the whole of the Province, and as a
necessary consequence some local and special laws have either been expressly or impliedly
repealed. We find that the Dastoor -ul-Amal Diwani, Kalat, has not been expressly repealed as it
does not appear in the First Schedule referred to in section 2 of the Ordinance. The question,
therefore, is how far has it been impliedly repealed or otherwise affected by the provisions
contained in sections 3, 4 and 5 of the Ordinance.
(9) The Civil Procedure Code of 1908 finds mention in the Second Schedule to the
Ordinance, with the result that it applies to the whole of West Pakistan subject to the
amendments indicated in the Schedule. Subsection (2) of section 3 of the Ordinance mentions
certain areas to which the enactments listed in the Second Schedule shall not apply, but the Kalat
State does not appear to fall within any of the exceptions indicated in this subsection. The result,
therefore, is that the Civil Procedure Code is to be deemed to have been extended to the Kalat
area from the fourteenth day of October, 1955.
(10) Under section 4 of the Ordinance where the operation of any Act or Ordinance has been
extended by an amendment indicated in the Second Schedule to any area which, before the
fourteenth day of October, 1955, form ed part of the territories of an Acceding State, any law in
force in that area before that date and corresponding to the provisions of such Act or Ordinance
shall stand repealed, and shall be deemed to have been re -enacted by such Act or Ordinance, as
amen ded by this Ordinance, as if such law were a Central Act and the provisions of the General
Clauses Act, 1897 (X of 1897), shall apply accordingly. Now the question is whether Dastoor -ul-
Amal Diwani, Kalat, is a law corresponding to the provisions of the Ci vil Procedure Code of
1908. If so, whether the whole or any parts thereof stand repealed and are to be deemed to have
been re -enacted by the Civil Procedure Code, as amended by this Ordinance.
(11) The word "corresponding" or the phrase "to correspond" d oes not usually or properly
mean "to be identical with", but "to,' harmonize with" or "to be suitable to" (Stroud's Judicial
Dictionary, 3rd Edition, page 645). According to the Concise Oxford Dictionary, the word
"correspond" means to be "in harmony", "be similar", "analogous". Thus in order that a law may
be a law corresponding to another law, it should deal broadly with matters dealt with in the other
law. It need not be substantially and materially identical with the other law. Viewed in this broad
sense, the Dastoor -ul-Amal Diwani, Kalat, 1952 appears to us to be a law corresponding to the
Civil Procedure Code of 1908, inasmuch as both the laws are intended to regulate the procedure
of Courts of civil jurisdiction. But the matter, however, does not rest here. On the one hand,
section 4 speaks of "any law in force in that area" (meaning the Acceding State), and on the
other, it uses the words "corresponding to the provisions of such Act or Ordinance", when
speaking of the Central Acts or Ordinances which have been extended to the Acceding States by
this Ordinance. It, therefore, seems to us that the intention underlying section 4 of the Ordinance
is not to repeal the law of an Acceding State in its entirety, but only to the extent that it
corresponds to th e provisions of the Central Act or Ordinance. To put it differently, it seems to
us to be the intention that if the local law of the Acceding State, although dealing with a
corresponding subject matter, has provisions which are not to be found in the Centr al Act or
Ordinance which has been extended to the area concerned, then those particular provisions will
continue in force. If the intention had been that the law in force in the area of an Acceding State
should stand repealed in its entirety for the reaso n that it corresponds to the Central Act or
Ordinance in question, we think that the words "corresponding to the provisions of such Act or
Ordinance" would not have been used, and instead it would have been sufficient to say
"corresponding to such Act or O rdinance."
(12) The intention to keep alive certain provisions of the law in force in an Acceding State
also becomes apparent from the last part of section 5 of the Ordinance, namely, "nor shall this
Ordinance revive or restore anything not in force or e xisting at the time of its commencement, or
affect any law in which any Act or Ordinance hereby repealed has been applied, incorporated or
referred to, or affect any principle or rule of law, or established jurisdiction, form, or cause of
pleading, practic e, or procedure, or existing usage, custom, privilege, restriction, exemption,
office or appointment, notwithstanding that they respectively may have been in any manner
affirmed, recognised or derived by, in or from any Act or Ordinance hereby repealed". I t will be
seen that established jurisdiction, cause of pleading, practice and procedure and existing usage
and custom etc., have been allowed to continue in force irrespective of the application of
corresponding Central Acts or Ordinances and the express o r implied repeal of local laws. It
appears that while the Government was aiming at unification of laws in the whole of West
Pakistan, it was conscious of the existence of peculiar local institutions, practices and
procedures, usages and customs etc. and wa s not willing to disturb or abolish them abruptly, so
as to ensure smooth transition to the new pattern of uniformity. We are, therefore, of the view
that, except in a case of express repeal under section 2 of the Ordinance, sections 3, 4 and 5 of
the Ordi nance do not have the necessary effect of repealing, in its entirety, a local law obtaining
in an Acceding State, simply for the reason that it deals with a subject -matter dealt with in the
Central Act or Ordinance extended to the whole of West Pakistan by Ordinance XXI of 1960. On
the other hand the combined effect of the three sections, just mentioned, is that the local law
shall stand repealed only in so far as it corresponds to the provisions of the Central Act or
Ordinance in question; and the establis hed jurisdictions, practices and procedures etc., shall
continue in force.
(13) Applying this principle to the case before us, it appears to us that the Dastoor -ul-Amal
Diwani, Kalat, stands repealed only to the extent of those of its provisions which co rrespond to
the provisions of the Code of Civil Procedure, 1908, but those of its provisions which deal with
other matters, not provided for, in the Code of Civil Procedure, remain unaffected. Further, the
jurisdiction of the existing Courts which are func tioning in the Kalat area under the Dastoor -ul-
Amal Diwani, Kalat, and the peculiar practices and procedures applicable to proceedings before
them, which are not covered by the provisions of the Code of Civil Procedure, have been
preserved.
(14) Our atte ntion was drawn to the fact that in the West Pakistan Civil Courts Ordinance (II
of 1962) Dastoor -ul-Amal Diwani, Kalat has been treated as an enactment which was alive in
1962 and had, therefore, to be included in the list of enactments which were being r epealed by
section 28 of the Ordinance just mentioned. Mr. Yahya Bakhtiar pointed out that if the
lawmaking authority had regarded President's Ordinance XXI of 1960 as having the effect of
completely repealing Dastoor -ul-Amal Diwani, Kalat, it would not ha ve included this enactment
in the list of those enactments which were to be repealed in 1962. Although a provision in a
subsequent legislation is not to be regarded as conclusive of the intention lying behind a prior
enactment, we consider that the inclusi on of the Dastoor -ul-Amal Diwani, Kalat, in the Schedule
to the West Pakistan Civil Courts Ordinance (II of 1962) supports the conclusion we have
reached above, namely, that this law was not repealed in its entirely by Ordinance XXI of 1960.
(15) On this view of the matter, it would be seen that in spite of the promulgation of
Ordinance XXI of 1960 and the extension of the Code of Civil Procedure, 1908, to the whole of
West Pakistan, including the Kalat State, the Courts functioning in the Kalat area cont inued to
exercise their jurisdiction, and, therefore, the Naib -Tahsildar of Bhag as well as the Qazi of Bhag
and the Majlis -i-Shoora were competent, on the 23rd of January 1961 and subsequent dates, to
entertain the suit and the appeal out of which Civil R evision No. 13 of 1961 has arisen. The
matter having been disposed of by competent Courts, we see no reason to interfere and dismiss
this appeal with costs."
Likewise in the case titled as 'Mir Said Muhammad and 6 others v. Mir Chakar and 6
others' repo rted in PLD 1973 Quetta page -43 heard by a Full Bench (relevant at page -47), it was
observed as under: --
"(13) Applying this principle to the case before us, it appears to us that the Dastur -ur-Amal
Diwani, Kalat, stands repealed only to the extent of th ose of its provisions which correspond to
the provisions of the Code of Civil Procedure, 1908, but those of its provisions which deal with
other matters, not provided for in the Code of Civil Procedure, remains unaffected. Further, the
jurisdiction of the existing Courts which are functioning in the Kalat area under the Dastur -ul-
Amal Diwani, Kalat, and the peculiar practices and procedures applicable to proceedings before
them, which are not covered by the provisions of the Code of Civil Procedure, have be en
preserved."
28. So a law providing more forums to the individuals of the area particularly the minorities
could not be declared illegal on the whims and wishes of an individual. There is no provision in
both the Laws that could be treated discriminato ry. Not a single instance justifying
discrimination within the meaning of Articles 8, 20 and 25 of the Constitution of Islamic
Republic of Pakistan, 1973, was cited or quoted. To the contrary being a Procedural Law the
Dastoor has got a unique and orifrent ial character.
29. Now adverting to the second limb of the argument that Dastoor and Regulation do not
cater the need of the day and are discriminatory. We do not subscribe to this argument as well for
a couple of reasons. Firstly, section 11 of Dastoor provides for amicable settlement of disputes,
requires the Qazi to necessarily try for reconciliation, which provision, is akin to section 89 -A of
Civil Procedure Code (C.P.C.) i.e. A.D.R. Secondly, the same Section provides a mechanism for
resolving the d isputes arising between the Hindu community through their 'Punchait/Jirga'.
30. Last but not the least, Constitutionally no Law repugnant to Holy Qu'ran and Sunnah can
be enacted and all existing Laws have to be brought in conformity with the injunctions of Islam
as enunciated in the Holy Qu'ran and Sunnah. Analyzing the scheme of Dastoor and Regulation
at such touch stone both the Laws contain specific provision. For instance section 22 of Dastoor -
U1-Amal Dewani, Kalat, 1952 directs the Presiding Officer for the decision of the matter
according to Shariat. For the sake of convenience Section -22 is ' reproduced herein below: --
31. Similarly, the Balochistan Civil Disputes (Shariat Application) Regulation, 1976 speaks
in its opening words as under: --
"A Regulation to provide for the adjudication of certain civil disputes in the Tribal Areas
of Balochistan according to Muslim (Shariat) Law;
NOW, THEREFORE, in exercise of powers conferred by clause (4) of Article 247 of the
Constitution of Islamic Repu blic of Pakistan, the Government of Balochistan, with the prior
approval of the President, is pleased to make the following Regulation:
32. As we all know that as per the preamble of the Constitution, all Muslims of Pakistan shall
be enabled to order the ir lives in the individuals and collective spheres in accordance with the
teaching and requirements of Islam as set out in the Holy Qu'ran and Sunnah. However, after
addition of Article 2 -A in the Constitution, the Holy Qu'ran and Sunnah have become the
Supreme Law of Pakistan and the Courts are obliged to enforce the existing Laws with such
adaptations as are necessary in the light of Holy Qu'ran and Sunnah to uphold the Holy provision
thereof. So now every man made Law must conform to the Injunctions of I slam as contained in
the Holy Qu'ran and Sunnah of the Holy Prophet (P.B.U.H.) so much so, the fundamental rights
as enshrined/given in the Constitution are not supposed to violate the norm of Islam. Looking the
Dastoor and Regulation with this perspective the Dastoor and Regulation, of course, are at a high
pedestal and enjoy a oreferential, distinguishing and a distinctive feature by having provisions
that satisfy the constitutional requirement.
33. We are conscious of the proposition that while challen ging the vires of a legislative
instrument the question of aggrieved party or person as contemplated by Article 199 of the
Constitution of Islamic Republic of Pakistan, 1973 is hardly treated a hurdle, however, how this
proposition has been dealt with by t he petitioner Mr. Akbar Azad cannot be lost sight of. In this
regard it is to be noted that the petitioner Muhammad Akbar Azad while opposing the petition
filed by Mr. Hadi Shakeel Ahmed stated that he is not an aggrieved person as he does not reside
withi n the area where said laws are applicable. More appropriately his contention may be
reproduced in his own words: --
"That in order to invoke extraordinary jurisdiction under the Constitution, the person so
approaching has to allege and show that he is ac tually an 'aggrieved person'. In the body of the
Petition, the petitioner has neither alleged nor shown that he is a person of such nature and kind.
On this score alone the Petition ought to have been dismissed in limini not to speak of admitting
the same or passing any further order such as in this case.
That the petitioner has no 'locus standi' to approach or have approached the higher court.
He is not a public representative even. Subject matter of the case relates about the area falling
north of Luck Pass, and he is even not resident of that part of the territory. Khudai Khidmatgar
have no concern or connection with Court/Tribunal proceedings, or to plead cause of the public
in Ketchary. Not only this applicant rather the general public has thereby fe lt wave of shock.
Prima facie, the petitioner has not approached with clean hands."
34. However; he himself claims to be an aggrieved party on account of the fact that a Civil
Suit No.5 of 2002 was filed by respondent No.5 Babu Abdul Qadir (now deceased) against the
petitioner and some other persons. It would be beneficial to reproduce para 14 of the petition: --
"(14) That the petitioner, in this matter, feels to have been aggrieved as such. The respondent
No.5, Babu Abdul Qadir, had filed a Civil Suit i) No.05/2002, before Qazi Dhadar, against this
petitioner and others, which is in the shape of Declaration of Injunction. There have been fifth
rounds of litigations in between the same parties, ii) Qazi Bhag - Suit No.03/2002, iii) Qazi
Dhadar Suit. No.4 4/2003, iv) Qazi Dhadar -Suit No.Re -20/2005, and v) Qazi Dhadar Suit
No.17/2006. The matter went twice before the Majlis -e-Shoora, Sibi, as an Appeal i)
No.29/2002, and ii) No.34/2005. What is the matter about? None has so far gone through the
Plaint itself This respondent No.5 has misappropriated and embezzled more than amount of
Rs.twelve Million of Education Department while performing functions as Superintendent at
Dhadar, Bolan. So far NAB has not absolved him of the responsibilities and liabilities as such.
He is reported to be Tadeen of Dhadar, a member of land -mafia, and by affixing Court fee of
Rs.70 only, he wants to grab our ancestral residential property at Dhadar which is worth a
Million rupees. Such kind of action require stern warning and repri mand."
The proceedings that motivated him to file the instant petition but vide order dated 13 -10-
2009 the petitioner abandoned the relief sought against the respondent No. 5. For the sake of
convenience order dated 13 -10-2009 wherein he wished not to p ress the relief against respondent
No.5 is reproduced herein below: --
"Mr. Sundar Dass, Advocate states that he was appearing for respondent No.5 who has
since died, to this Mr. Muhammad Akbar Azad the petitioner states that as respondent had died
he no longer wishes to press the relief against respondent No.5 or his legal heirs and he had
deleted by writing in red ink against respondent No.5 that he may be deleted. Mr. Sundar Dass,
Advocate is satisfied with such statement and it is hereby ordered that respondent No.5 stands
deleted from the array of respondents.
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In the given circumstances, how the grievance of petitioner survives and subsists is
something beyond comprehension and legal conception.
35. The above discussion and sequences of the events establish th at:--
A. Dastoor -ul-Amal Dewani, Kalat, 1952 was repealed and re -enacted by Central Law,
Reforms of Statute Ordinance XXII of 1960 repealed Dastoor and thereby declared a Central
Law.
B. As Central Law, Dastoor -ul-Amal Dewani, Kalat, 1952 was amended b y Presidential
Ordinance in 1984 and thereafter, by the Act of the Parliament vide Act No. I of 1990.
C. There is consensus of opinion that except the provisions corresponding to Civil Procedure
Code rest of the provisions of Dastoor has been preserved.
D. It is beyond comprehension, even inconceivable to imagine that Dastoor and Shariat
Regulation Act, 1976 are non -existent and not available on Statute Book.
In the light of above discussion, in the wake of legal position and at the strength of Ratio
decidendi referred to hereinabove, it can irresistibly be concluded and can safely be held that
neither the Dastoor has been repealed by Civil Courts Ordinance, 1962 nor as a Central Statute
could be repealed within the meaning of Article 143 of the Const itution of Islamic Republic of
Pakistan, 1973 by a Provincial Statute, therefore, our answer to the query in para No.11 of the
instant judgment is a Big No. Consequently, the instant petitions are dismissed with no orders as
to costs.
Before parting with the judgment it is imperative to observe that our discussion mainly
revolves around section 28 of the Ordinance, 1962 and confined to the question which we have
answered in negative, however, the enforcement of Civil Courts Ordinance is entirely a dif ferent
subject, therefore, will not affect by the discussion made hereinabove, as the Government of the
day, is always competent to enforce a Procedural Law or withdraw the same.
MWA/52/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.