IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
PRESENT: 
MR. JUSTICE EJAZ AFZAL KHAN 
MR. JUSTICE SARDAR TARIQ MASOOD 
 
CIVIL PETITION NO. 548-P OF 2013. 
(On appeal against the judgment dt. 
02.07.2013 passed by the Peshawar 
High Court, Abbottabad Bench in C. 
R. No. 380 of 2005).  
 
 
Govt. of KPK thr. Secy Industries Commerce  
and Mineral Development, Peshawar and others. 
   
…Petitioner(s) 
VERSUS 
 
The Frontier Chemical Industries Ram Bagh, 
Mardan. 
 
 
 
 
 
 
…Respondent(s) 
 
 
 
 
 
 
 
 
For the petitioner(s): 
Mr. Mujahid Ali Khan, Addl. A. G. KPK. 
 
For the respondent(s): 
Mr. M. Naeem Anwar, ASC. 
 
Date of Hearing:  
19.04.2016 (Judgment Reserved) 
 
J U D G M E N T  
 
 
 
EJAZ AFZAL KHAN,   J.-  This petition for leave to appeal 
has arisen out of the judgment dated 2.7.2013 of the Peshawar High 
Court, Peshawar whereby the learned Single Judge in its Chambers 
dismissed the revision petition filed by the petitioner and maintained 
the judgments and decrees of the fora below. 
2. 
 
The learned AAG appearing on behalf of the petitioner 
contended that where the law has provided a hierarchy of legal fora 
for the enforcement of rights and liabilities, resort must be had 
thereto and that bypassing of such fora would not only overcrowd 
the Civil Courts but also defeat the purpose, the rules were enacted 
for. While arguing the CMA for condonation of delay, the learned 
AAG contended that where delay in lodging the petition occurred 
CIVIL PETITION NO. 548-P OF 2013 
2 
due to late supply of documents and lengthy correspondence 
between the various tiers of the department, it could well be 
condoned. The learned AAG, to support his contention placed 
reliance on the case titled Deputy Collector of Customs and two 
others Vs. Muhammad Tahir and another (PLD 1989 SC 627).  
3. 
 
Learned ASC appearing on behalf of the respondent 
contended that since jurisdiction of the Civil Court is not barred by 
North-West Frontier Province Mining Concession Rules, 1976, Civil 
Court being a Court of plenary jurisdiction could entertain and 
adjudicate upon the dispute of this nature. The learned ASC next 
contended that where the question of jurisdiction has not been 
raised in the lower fora as well as the High Court, it cannot be raised 
before this Court for the first time. Controverting the arguments 
addressed in support of the application for condonation of delay, 
the learned ASC contended that late supply of documents or 
lengthy 
correspondence 
does 
not 
constitute 
a 
ground 
for 
condonation of delay. The learned ASC to support his contention, 
placed reliance on the cases titled Aziz ur Rehman Hamid Vs. 
Crescent Commercial Bank (2008 SCMR 54), Engineer-in-Chief, 
G.H.Q. and another Vs. Abdul Khaliq Siddiqui (2008 SCMR 60), Gul 
Muhammad Vs. M.C.B. Bank Limited through President and others 
(2012 SCMR 136) Muhammad Idrees Alvi Vs. Employees Old-Age  
Benefits Institution and four others (2001 SCMR 1967) and Gul 
Muhammad Vs. M. C. B. Bank Ltd. through President  and others (2012 
SCMR 136). 
4. 
 
We have gone through the record carefully and 
considered the submissions of learned ASCs for the parties.  
CIVIL PETITION NO. 548-P OF 2013 
3 
5. 
 
A wade through the North-West Frontier Province Mining 
Rules would reveal that it is a perfect code in itself dealing with all 
the aspects regulating grant and refusal of license and lease; terms 
and conditions thereof; other conceivable eventualities arising out of 
mining activities of the licensee and the lessee and imposition of 
penalties including cancellation, remedies thereagainst and finality 
of the decision of the Government on an appeal filed in this behalf. 
The purpose of the legislature behind enacting these rules was to 
provide an integrated set up and hierarchy for the enforcement of 
rights and liabilities arising out of license and lease. Order of Licensing 
Authority can be challenged through an appeal to the Government. 
Decision of the Government subject to the provisions and the rules, in 
view of Rule 93(3) is final. It despite being so is justiceable if passed on 
account of mala fide, without jurisdiction, or in violation of the rules. 
In the absence of any such manifestation, the decision of the 
Government being final cannot be questioned anywhere.  
6. 
 
Now, we are to see whether respondent invoking the 
jurisdiction of the Civil Court proved anywhere that action taken 
against him is mala fide, without jurisdiction, or in violation of the 
rules. A good number of the witnesses was examined by the 
respondent, but its attorney who appeared as PW-5 unreservedly 
admitted in his cross-examination that none of the respondents has 
any ill will, animus or acrimony against the respondent. Yes, there is 
no clause ousting the jurisdiction of the Civil Court, but the very words 
used in Rule 93(3) of the Rules that “subject to the provisions of these 
rules the decision of Government on an appeal shall be final”, rule 
out any other forum where the issue could be reopened or raised 
afresh. Want of jurisdiction or violation of the rules could have been 
CIVIL PETITION NO. 548-P OF 2013 
4 
another ground to seek annulment of the decision of the 
Government, but, there is also nothing on the record to show that the 
Licensing Authority or Secretary Industries and Mineral Development 
Government of KPK acted without jurisdiction and lawful authority. 
Where neither mala fide has been established nor want of jurisdiction 
or violation of the rules has been pointed out, we don’t understand 
how the Civil Court could arrogate to itself an authority to sit in 
judgment over the order passed by the Government in appeal. 
When faced with this situation, learned ASC stated at the bar that 
the respondent could not carry out mining activities because of 
force majeure. What is force majeure and who is competent to 
decide about it. Before we answer this question it is worthwhile to 
refer to the relevant provision which reads as under:-  
“94.  Force Majeure.-(1) Where the failure on the part 
of the licensee or lessee to fulfil any of the terms and 
conditions of these  rules arises from Force Majeure, 
the licensee or lessee shall stand absolved of 
responsibility.  
 
(2) 
For the purpose of this rule the expression 
“Force Majeure” means an act of God, war, 
insurrection, riot, civil commotion, tide, storm,  tidal 
wave, Flood, lightning, explosion,  earthquake or any 
other happening which the licensee or lessee could 
not in the opinion of the licensing authority 
reasonably prevent or control.” 
 
7. 
 
A bare reading of the rule quoted would reveal that 
‘Force Majeure’ provides a basis of exonerating the licensee or 
lessee to fulfil any of the terms and conditions of the rules but in any 
case, it is the opinion of the licensing authority which matters in a 
dispute of this type. Civil Court does not figure anywhere in the 
scheme of the rules. In his last-ditch effort to defend the impugned 
judgment, the learned ASC contended that the petitioner instituted 
the suit when it was observed in the order dated 02.04.1998 of the 
CIVIL PETITION NO. 548-P OF 2013 
5 
High Court that the question urged being question of fact has to be 
decided on the basis of evidence to be produced by the parties. But 
it will not help the respondent because a dispute of this type as 
observed above could be decided by the Licensing Authority or the 
Government itself. Assuming that in view of the observation made by 
the High Court, it was to be decided on the basis of evidence 
produced by the parties, the respondent should have produced 
evidence in this behalf. But the witnesses he examined have not 
produced any evidence, much less convincing on the record to 
show that the respondent could not carry out the mining activities 
due to force majeure. Instead an omnibus statement has been 
made by the attorney of the respondent that snowfall, rain and 
floods for the last 7-8 years and construction of Nawababad and 
Mandagucha road, with the aid of Asian Development Bank, 
obstructed the respondent’s access to the mines. But it being a bold 
assertion cannot be treated as evidence. The impugned finding thus 
being based on no evidence cannot be sustained.  
8. 
 
Next comes delay of 41 days in filing the petition for 
leave to appeal. According to the learned Addl. A. G., delay in filing 
the petition occurred because of late supplies of copies and lengthy 
correspondence between various tiers of the department. This 
explanation, in the matrix of the case, appears to be satisfactory. It is 
more so when we see the conduct of the subordinate functionaries 
who being sell-out are ever ready to do away with anything public 
for petty gains. In the case of Deputy Collector of Customs and two 
others Vs. Muhammad Tahir and another (supra) while dealing with 
an identical aspect held as under :-  
CIVIL PETITION NO. 548-P OF 2013 
6 
“It has recently been held by this Court that the 
petitions 
on 
behalf 
of 
the 
Government 
or 
Government 
functionaries 
in 
matters 
involving 
Government interest or public interest, the petitioners 
no doubt would be treated at par with ordinary 
citizens; but they would be given the same 
concessions and considerations as given to the other 
citizens. It has also to be observed that while 
examining the merits of application for condonation 
of delay the Court can look into the conduct of the 
subordinate functionaries, on whose conduct the 
higher policy maker functionaries have only a remote 
physical control. Hence, the conduct of the lower 
functionaries can in appropriate cases be taken as a 
good ground for condonation of delay. In this case, 
prima facie, some of the lower functionaries, as 
explained 
in 
the 
application, 
seem 
to 
have 
misconducted in the matter of vigilance and 
preparation for filing of petition for leave to appeal. 
And further, as admitted at the Bar, departmental 
action is being taken against them in this behalf. This 
amongst other shows bona fides on Government’s 
part. We consider it a fit one for condonation of 
delay. Accordingly the application in that behalf is 
allowed and the delay is condoned.”    
 
9. 
 
We, thus, by following the judgment cited above, 
condone the delay in filing the petition. The cases of Aziz ur Rehman 
Hamid Vs. Crescent Commercial Bank, Engineer-in-Chief, G.H.Q. and 
another Vs. Abdul Khaliq Siddiqui, Gul Muhammad Vs. M.C.B. Bank 
Limited through President and others, Muhammad Idrees Alvi Vs. 
Employees Old-Age  Benefits Institution and four others and Gul 
Muhammad Vs. M. C. B. Bank Ltd. through President  and others 
(supra) being distinguishable on facts and features of the case are 
not attracted to the case in hand. We, therefore, convert this petition 
into appeal, allow it and set-aside the impugned judgments and 
CIVIL PETITION NO. 548-P OF 2013 
7 
decrees. While parting with the judgment, we hold that the Licensing 
Authority shall auction the lease after giving wide publicity in the 
newspapers having wide circulation. However, the respondent shall 
be given the right of first refusal.   
JUDGE 
 
JUDGE 
 
Announced in open Court at Islamabad on __________________ 
 
 
JUDGE 
 
‘Not Approved For Reporting’ 
M. Azhar Malik 
 
 
 
