Haider Khan V. Sher Khan and 3 others,
Bench: Shaukat Ali Rakhshani
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This case dealt with a property dispute where a citizen, Haider Khan, filed a civil suit involving a piece of land, naming the revenue department (a government body) as one of the defendants. The Qazi Court initially hearing the case sent the plaint back to him, ruling that under a special 1976 regulation for tribal areas, such courts could not hear cases where the government was a party. An appellate body upheld this decision. However, neither court told the petitioner which court he should actually approach instead, leaving him without a clear path forward.
The Balochistan High Court examined the situation and noted a major legal change: the 25th Constitutional Amendment of 2018 had merged Pakistan's tribal areas (like the Provincially and Federally Administered Tribal Areas) into the regular provinces. This meant the old system of tribal courts, including Qazi Courts and the Majlis-e-Shoora operating under the 1976 regulation, no longer had a special legal basis. A High Court notification from 2019 had already formally transferred all pending cases from these tribal forums to the ordinary Civil Courts.
The court ruled that since the tribal areas no longer exist as a separate legal category, disputes like this one must now go to the regular Civil Courts. It dismissed the petition but clarified that Haider Khan could refile his property case before an ordinary Civil Court, effectively resolving the confusion about jurisdiction after the tribal areas' merger into Balochistan province.
یہ مقدمہ ایک جائیداد کے تنازعے سے متعلق تھا جس میں ایک شہری، حیدر خان، نے زمین کے ایک ٹکڑے کے سلسلے میں دیوانی مقدمہ دائر کیا تھا اور محکمہ مال (ایک سرکاری ادارہ) کو مدعا علیہان میں سے ایک کے طور پر شامل کیا تھا۔ قاضی عدالت، جو ابتدائی طور پر یہ مقدمہ سن رہی تھی، نے درخواست کو یہ کہتے ہوئے واپس کر دیا کہ قبائلی علاقوں کے لیے 1976 کے خصوصی ضابطے کے تحت ایسی عدالتیں ان مقدمات کی سماعت نہیں کر سکتیں جن میں حکومت فریق ہو۔ ایک اپیلی ادارے نے اس فیصلے کو برقرار رکھا۔ تاہم کسی بھی عدالت نے درخواست گزار کو یہ نہیں بتایا کہ اسے دراصل کس عدالت سے رجوع کرنا چاہیے، جس کی وجہ سے وہ کسی واضح راستے کے بغیر رہ گیا۔
بلوچستان ہائی کورٹ نے صورتحال کا جائزہ لیا اور ایک بڑی قانونی تبدیلی کی طرف توجہ دلائی: 2018 کی 25ویں آئینی ترمیم نے پاکستان کے قبائلی علاقوں (جیسے صوبائی اور وفاقی ز
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P L D 2024 Balochistan 30 Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ HAIDER KHAN ---Petitioner Versus SHER KHAN and 3 others ---Respondents Constitution Petition No. 1076 of 2020, decided on 21st September, 2022. Balochistan Civil Disputes (Shariat Application) Regulation, 1976--- ----S. 2---Constitution of Pakistan, Arts. 246 & 247 [as amended through Constitution (Twenty -Fifth Amendment) Act (XXXVII of 2018) ---Balochistan Civil Courts Ordinance (II of 1962), Preamble ---Civil Procedure Code (V of 1908), O. VII, R. 10--- Notification No.240/ RHC/JM/2019 dated 10 -10-2019 issued by the Balochistan High Court ---Civil suit filed by a private person where Government is also a party (to the suit) ---Maintainability ---Suit filed by the plaintiff/ petitioner was returned under O. VII, R. 10 of the Civil Procedure Code, 1908, by the Court of Qazi under S. 2 of the Balochistan Civil Disputes (Shariat Application) Regulation, 1976 ('the Regulation, 1976'), which order was maintained by the Appellate Court ---Validity ---Record revealed that both the Courts below, while not entertaining his claim, had not referred to (suggested) to the petitioner the competent Court having jurisdiction ---In the earlier scheme of the Regulation, 1976 where the government functionary was a party to a lis, the Court having jurisdiction was Court of Civil Judge but after promulgation of Constitution (Twenty- Fifth Amendment) Act, 2018, Art. 246 of the Constitution was inserted/amended, whereby the tribal areas were merged into respective provinces ---Regulation, 1976 was applicable in tribal areas of Balochistan, but after the Constitution Twenty -Fifth Amendment, the tribal areas had been merged and made part of the Province of Balochistan, hence the tribal areas were no more in existence ; powers enjoyed by the President of Pakistan in case of Federally Administrated Tribal Areas ('FATA') and the Governor of Balochistan in case of Provincially Administrated Tribal Areas ('PATA') were no more available to them under Art. 247(4) of the Constitution ---In view of Notification No. 240/RHC/JM/2019 dated 10- 10-2019 issued by the Balochistan High Court, the litigations pending before the Qazi Courts and Member Majlis -e-Shoora exercising jurisdiction under the Regulation, 1976, stood transferred to the Civil Courts having original jurisdiction constituted under the Balochistan Civil Courts Ordinance, 1962---Matters related to the civil disputes were to be adjudicated by the Civil Courts constituted under the Balochistan Civil Courts Ordinance, 1962, thus the petitioner having any civil dispute regarding property might approach a Civil Court having ordinary jurisdiction---Constitutional petition was disposed of accordingly. Naimatullah v. Faizullah (C.R.P. No.209 of 2011) ref. Siraj Ahmed for Petitioner. Mehrullah Khan Kakar for Respondents. Nusrat Baloch, A.A.G. for Official Respondents. Date of hearing: 23rd August, 2022. JUDGMENT SHAUKAT ALI RAKHSHANI, J. ---Before us, the petitioner has brought the captioned petition seeking annulment of the order dated 27th April, 2018 ("Impugned order") rendered by learned Qazi Musakhail ("Trial Court"), whereby, the plaint was returned to the petitioner under Oder VII Rule 10 of Code of Civil Procedure, 1908 ("C.P.C."), which was endorsed and upheld on 01st March, 2019 by learned Members Majlis -e-Shoora, Musakhail ("Appellate Court").
2. Suit was filed by the petitioner before the learned Trial Court regarding a property bearing Khatooni No.40/44, Khata No.4 measuring 9 Rod 14 pole situated at Mouza Talli Halqa Sadar, against the defendants including revenue department, which was returned under Oder VII Rule 10 of CPC to the petitioner on the ground that under section 2 of the Balochistan Dispute Shariat Application Regulation, 1976 ("Regulation of 1976") the court of Qazi cannot entertain a suit where Government is a party. In appeal filed by the petitioner the appellate Court on 01st March, 2019 upheld the order dated 27th April, 2018 ibid. Hence this petition.
3. Learned counsel for the petitioner inter alia contended that various applications filed by the petitioner before revenue authorities and the before the Court of learned Qazi have been returned to approach the proper forum, thus if any order is made to determine the forum, he would be satisfied and guided. Conversely, the learned counsel for the private respondents contended that the petitioner has been dragging the respondents in various fora without any right and legal justification, as such, requested for dismissal of the petition. Learned AAG also requested for dismissal of the petition on the ground that the both the courts below have rightly returned the plaint.
4. We have cautiously and carefully examined the record in view of the contentions of adversarial parties. The learned Qazi while returning the plaint though referred to section 2 of the Regulation of 1976, but did not suggest the court of competent jurisdiction. Similarly, the learned Appellate Court while upholding the order of the learned Trial Court also did not refer to the competent court, having jurisdiction. Obviously, in the earlier scheme of Regulation of 1976, where the government functionary was a party to a lis, the court, having jurisdiction was a court of Civil Judge, but after promulgation of Twenty- fifth Amendment Act No. XXXVII of 2018, Article 246 of the Constitution of Islamic Republic of Pakistan, 1973 was inserted and amended, whereby the tribal areas were merged into respective provinces. Regulation of 1976 was applicable in tribal areas of Balochistan, but after the amendment ibid, the tribal areas have been merged and made part of the province of Balochistan, henceforth, the tribal areas are no more in existence. The powers enjoyed by the President of Pakistan in case of Federally Administered Tribal Areas ("FATA") and the Governor of Balochistan in case of Provincially Administered Tribal Areas ("PATA") are no more available to them under Clause 4 of Article 247 of the Constitution. In this regard reference can be made to a judgment rendered by this Court in C.R.P. No.209 of 2011 "Naimatullah v. Faizullah".
5. In view of the above, vide Notification No.240/RHC/JM/2019 dated 10th October 2019 of this Court, the litigations pending before learned Qazi Courts and learned Member Majlis -e-Shoora, exercising jurisdiction under the Regulation of 1976 stood transferred to the Civil Courts having original jurisdiction constituted under the Balochistan Civil Courts Ordinance, 1962.
6. Upshot of the above discussion is that the matters related to the civil disputes are to be adjudicated by Civil Courts constituted under the Balochistan Civil Courts Ordinance, 1962 and, as such, the petitioner having any civil dispute regarding property may approach a Civil Court, having ordinary jurisdiction. In light of above, the petition being bereft of merits is dismissed with no order as to cost. MQ/51/Bal. Petition dismisse