' C.M. Nos. 232/07, 447/08, 479/09 and 408/2008.
' NASIM SIKANDAR, J.--- On 19-3-2004 Miss Saima Bukhari daughter and Syed Hassan Raza Bukhari son of Syed Mukhtar Hussain Shah resident of Mauz Khumbi Tribal Area District Rajanpur filed Constitutional Petition No, 1192 of 2004 alleging that respondent No,1 D.C.O. Rajanpur had failed to perform his functions by refusing the issuance of domicile certificate to the petitioners as requested to him. It was accordingly prayed that respondent No,1 be directed to issue domicile certificate and the District Coordination Officer, D.G. Khan respondent No,2 be directed to recommend them for admission in medical college in the disciplines of their choice in Baha-ud- Din Zakariya University. A similar direction to the University authorities was also prayed for.
2. In reply respondent No,1-D.O.C., Rajanpur submitted his parawise comments dated 2-4-2004 received in the Court on 5-4-2004 through Officer of the Additional Advocate-General Punjab, Multan. Para-1 of the comments in extenso reads as under:--- "The actual position of para No, 1 is that Syed Mukhtar Hussain Shah, father of both the petitioners, posted as PDSP at Rajanpur has got five Marlas land through Mutation No,35 dated 29-10-2002 in village Khumbi Tribal Area of District Rajanpur. Syed Mukhtar Hussain Shah is working here as PDSP for the last many years and they are earlier permanent residents of Dera Ghazi Khan and now are residing in official accommodation near Police Station (Saddar), Rajanpur with his family and both the petitioners. A report from the Patwari/Girdawar Halqa verified by the Commandant/Political Assistant Rajanpur dated 31-2-2004 was obtained according to which the father of the petitioners have neither got any house in that area nor are residing over there. The report has been placed with this reply at Annexure "A". Moreover detailed report of Mr. Musarrat Hussain Muharrir, Border Military Police Post Khumbi was also called in which he after visiting the spot has submitted written report that neither Ms. Saima Bukhari nor Syed Hasan Raza Bukhari are residing in that area nor they have any house. The written report is placed at Annexure "B". Moreover there is no road, no electricity, no water in that area. Photograph of that area duly verified by the Revenue Authority is also placed at Annexure "C" which shows that it is a plain and baren place and there is no house.
Earlier applications of Ms. Saima Bukhari and Syed Hassan Raza Bukhari applied fof the issuance of domicile certification from that area which were rejected vide this office order dated 19-2-2004 are placed at Annexures "D" and "E".
3. The learned Judge in Chamber Ijaz Ahmed Chaudhry, J. On 29-7-2004 after hearing the parties allowed the prayer made in the Constitutional petition. The operative part of the order contained in para 6 in extenso reads as under:- "The documentary evidence has been produced by the petitioners that they had been studying at Rajanptir as their father had shifted place of abode and after purchasing five Marlas land started residing at the address given in their application. According to vote .List dated 31-10-2002, the place of posting, and I.D Cards of their parents when the petitioners moved application to respondent No,1 for domicile certificates, they were living at Rajanpur. From the perusal of these documents, it is proved that the petitioners have been residing at District Rajanpur for more than one year as their father remained posted there as DSP (Legal) and they are still residing there. As such respondent No,1 has wrongly refused issuance of domicile certificate to them. Under section 17 of Pakistan Citizenship Act, 1951 petitioners become eligible for issuance of domicile certificates in their favour. It seems that non-issuance of domicile certificate to the petitioners- that earlier their brother namely Syed Asif Raza Bukhari had earlier applied for domicile certificate at Rajanpur which was refused as he had already obtained a certificate from D.G. Khan and this fact was concealed by him. Against the said order writ petition was filed which was also dismissed. Then said Syed Asif Raza filed an I.C.A. In this Court, and the same was also dismissed. Learned counsel for the petitioners has placed on record a copy of order of august Supreme Court of Pakistan passed in Civil Miscellaneous Application No, 1997-L of 2003 in C.P. No,607-L of 2003 through which brother of petitioners has been provincially allowed admission in , the college on the basis of being resident of Rajanpur. The case of the petitioner No,1 is entirely different and on different footing with the case of her brother who had concealed the factum of receiving of earlier Domicile Certificate.
On the other hand, petitioner No,1 obtained such certificate from District D.G. Khan but when the said certificate was cancelled she applied for issuance of domicile certificate to D.C.O. Rajanpur,.
Which was refused through the impugned order. The impugned order is declared to be illegal and unlawful as respondent No,1 has failed to exercise his authority properly. In such circumstances, this petition is accepted and D.C.O.-respondent No,1 is directed to issue domicile certificate to the petitioners within seven days from the receipt of the order."
4. The first mentioned two applications have been filed by Muhammad Afzal Sohail and Sara Mehboob Gorchani under section 12(2), C.P.C. For setting aside of the order recorded by the learned Judge. According to the present petitioners the aforesaid order was obtained through misrepresentation, fraud and concealment of facts by the petitioners in the above Constitutional petition inasmuch as both never resided at Mauza Khumbi Tribal Area, District Rajanpur as claimed by them. It is asserted that the admission of both the petitioners in the Constitutional petition in Medical Colleges on the seats reserved for the Tribal Area of Rajanpur was illegal. By way of Constitutional Petitions Nos.1409 of 2007 and 7212 of 2008 filed separately the present petitioners Muhammad Afzal Sohail and Sara Mehboob Gorchani have also prayed for a direction that they be admitted in Nishter Medical College, Multan on the reserved seats for Rajanpur Tribal area. The cancellation of admission of both petitioners in the Constitutional petition is also prayed for.
5. Likewise Civil Miscellaneous No,1461 of 2005 under section 12(2) read with section 151 of C.P.C. Has been filed by one Ali Nawaz Khan Mazari who also claims to be the resident of Tribal Area of Tehsil Rojhan District Rajanpur. He has prayed for setting aside of the aforesaid dated 29-7-2004 and a decision of the matter afresh after hearing him.
6. In reply both the respondent sister and brother-petitioners in Constitutional petition have alleged that all petitions under section 12(2) C.P.C. Are incompetent and mala fide and also suffer from laches. It is stated that both were admitted as students of M.B.,B.S. In 2006-2007 Session and were studying in their 3rd Year. It is also alleged that their admission was well within the knowledge of petitioners right from the date of admission and therefore, no ground existed for condonation of delay. On merits the order passed in the Constitutional petition, the operative part whereof has been reproduced above, is supported for the reasons stated therein.
7. Learned counsel representing the petitioners Muhammad Afzal Sohail and Sara Mehboob Gorchani have supported their case by placing on record a number of documents including a copy of NIC of father of the two respondents dated 30-10-2002, entry in the voters list dated 31-10- 2001, copy of mutation of 5 'Marlas land in favour of the father of the respondents dated 20-10- 2002, D.G. Khan domicile of Miss Saima Bukhari issued on 26-11-2001 and copy of cancellation application dated 23-6-2003. In support of the contention raised in the petitions the learned counsel has relied upon the ratio settled in re: Asif Jah Siddiqui v. Government of Sindh and others PLD 1983 SC 46, re: Miss Rizwana Andleeb v. Principal, Chandka Medical College Larkana and another 2003 SCMR 1944, re: Miss Dur-e-Sameen and another v. Selection Committee through Chairman Balochistan Public Service Commission, Quetta and 4 others 1997 SCMR 270, re: Syed Dawood Shah v. Adnan Kamal and another 2002 CLC 413, re: Mst. Jameela Kausar v. Board of Intermediate and Secondary Education and others 2003. SCMR 153, re: Rahat Saeed Bukhari v. Aisha Hameed Qadir and another 1997 MLD 218 SC (AJ&K). On.The issue of limitation the petitioners rely upon the ratio settled in re: Muhammad Alamgir and others v. Muhammad Iqbal and others 1983 CLC 2919.
8. Learned counsel for the respondents-petitioner's in Constitutional petition on the other hand supports his objection against the maintainability of these applications under section 12(2), C.P.C.
On the ratio settled in re: Mubasher Ahmad v. Mian Tahir Raza and others PLD 2002 SC 270, re: Mst.
Saadat-ur-Rehman v. Muhammad Zaarat Khan and 3 others PLD 1998 Pesh. 1, re: Shah Hanif and 20 others v. Col. Yar Muhammad Khan and 7 others 2000 MLD 1740 and Subedar Muhammad Hussain v. Mst. Shah Begum and others 1990 MLD 2100.
9. Having heard the learned counsel for the parties and keeping in mind the ratio settled in the aforesaid authoritative pronouncements, I have come to the conclusion that the prayer made in the petition cannot be granted, for the following reasons:---
(1) It will be seen that the respondent No,1-D.C.O., Rajanpur in para 1 of his comments had objected to the grant of prayer in the Constitutional petition for exactly the same reasons on the basis of which the present petitioners pray for setting aside of the order of the learned Judge in Chamber dated 29-7-2004.
(2) It will also need to be noted that the respondent No,1 had attached almost all the documents, which now the petitioners in their petitions under section 12(2), C.P.C. Are relying upon. All these facts or objections being available before the Honourable Judge in. Chamber while recording the order it cannot be said that the order was obtained by fraud or misrepresentation. In other words the claim that had these facts and documents been before the Honourable Judge in Chamber at the time of recording of order his decision would have been different cannot be accepted as a fact.
(3) According to section 12(2), C.P.C. a challenge to the validity of a judgment and decree or order on the plea of fraud, misrepresentation or want of jurisdiction can be made only by way of an application to the same forum. In the case in hand, as noted above, all facts and documents being a part of record and being before the Honourable Judge in Chamber the petitioners cannot be heard in complaint that the order was obtained by fraud or misrepresentation. In the operative part of the order as reproduced above, the learned Judge in Chamber specifically referred to a number of documents on the basis of which he felt satisfied and accordingly made a direction to respondent No,1 to exercise his authority properly.
(4) The order in question, therefore, could only be challenged by way of an Intra-Court Appeal or through a civil petition for leave to appeal before the Honourable apex Court. Any kind of interference by this Court or reversal of the order as prayed for in these petitions is neither permitted by rules of this Court nor by any law.
(5) These petitions, it needs further mention, cannot be treated as review applications as well inasmuch the requirements in that regard as laid down in section 114, C.P.C. Are not answered. It is a settled law that the main aim of power of review is to enable the correction of errors. It is again a settled law that a review in no case should amount to re-hearing on merits. The petitioners in these petitions, without any doubt demand either a re-hearing or reversal of order on admission and relying upon documentary evidence. That exercise I am not inclined to undertake in these proceedings.
10. Since all the facts now being alleged by the petitioners and the documents being relied upon were available on record at the time of making of the order in question conversion on these petitions in review applications will also not be in accordance with law. Therefore, all these applications under section 12(2), C.P.C. Shalt be dismissed. For similar reasons Constitutional Petitions Nos.1409 of 2007 and 7212 of 2008 shall be disposed of as having been rendered infructuous.