1. After hearing the learned counsel for the parties at length, it appears that strong factual controversy is involved, as according to learned counsel for petitioner, the construction of only ground plus two floors was approved on plot No. R-909, Block-3 Federal 'B' Area, Karachi, and 3rd and 4th floors have been raised in violation of the approved plan. According to the respondent No. 1, only ground plus three storeyed is available in the record, while the construction of 4th floor is to be ascertained. Commissioner's report dated 21.8.2007 is also on record which suggests that strong factual controversy is involved in the matter and he has pointed out that some shops have also been constructed in the plot in question.
2. Keeping in view strong factual controversy and findings of apex Court in C.P.L.A. No. 168-K/2006 titled. Muhammad Mahmood Bawani v. Deputy Controller of Buildings, Zone `B' and others decided on 12.10.2006, in which the following observations have been made:- "4. On the last date of hearing this petition came up for hearing when this Court observed that this was not a proper case for entertainment in Constitutional jurisdiction of the High Court, as the matter involved roving and elaborate factual enquiry into disputed questions of fact raised by the petitioner and controverted by the respondents. We had expressed our tentative opinion that it was not the function of the High Court to appoint a Commissioner of inspection of the site as initiated by the petitioner for determination of facts on ground and ordered notice to the respondents."
3. "The question whether the plots bearing Nos. 36-K and 37-K were legally amalgamated; whether the building was constructed in accordance with a plan approved as per law; whether compulsory open spaces had been left open; whether the height of the building is in proportion to the size of the plot; etc. Can only be decided justly and comprehensively on the basis of the evidence of the parties for which it would have been proper for respondent No. 1 to file a suit instead of approaching the High Court in its Constitutional jurisdiction. Learned counsel for respondent No. 1 further submitted that if directions are issued that respondent No. 1 should approach the Civil Court for deciding the questions/issues involved in the Constitutional petition then he would have recourse for the same."