1. ' SHAHID MUBEEN, J. --- The appellants have preferred this Intra-Court Appeal under Section 3 of the Law Reforms Ordinance, 1972, against judgment dated 28.09.2010 passed by learned Single Judge in Chambers in Writ Petition No. 2345 of 1994 whereby the writ petition filed by respondents No. 1 to 5 has been allowed.
2. Succinctly, the facts giving rise to the institution of this Intra-Court Appeal are that Noor Muhammad son of Mahkum Din ,was owner of agricultural land in India (Hindustan). After partition of the sub-continent, his claim was confirmed to the extent of 140 kanals 5 marlas on 22.07.1957 but afterwards when it was found that the said land had already been allocated for Tomb of AMAR TASAR, same was cancelled by the Deputy Rehabilitation Commissioner, Bahawalpur vide order dated 31.12.1958 and in alternative land measuring 98 kanals, 5 marlas in RL-Il No. 25 dated 28.08.1959 was confirmed. After the death of Noor Muhammad, Mst. Kareem Bibi while claiming herself to be the daughter of Noor Muhammad got transferred the said inheritance in her favour.
2. On complaint, Military Court sentenced to Mst. Kareem Bibi and her husband to get executed the mutation inheritance on the basis of fraud and misrepresentation in her favour while showing herself to be the daughter of Noor Muhammad and consequently the said allotment was cancelled. Said decision was set aside in appeal filed by Mst. Kareem Bibi and respondents No. 1 to 5 were directed to approach the settlement office for the redressal of their grievance. In response to that, they challenged inheritance mutation No. 2 sanctioned in favour of Mst. Kareem Bibi on 22.07.1957 through Civil Revision which was accepted on 21.06.1964 by the Additional Settlement Commissioner, , mutation No. 2 was cancelled and case was remanded to the Assistant Collector.
3. On 08.09.1966 after inquiry Assistant Collector declared that respondents No. 1 to 5 of the writ petition are the legal heirs of deceased Noor Muhammad and name of Mst. Kareem Bibi was excluded from his legal heirs. Feeling aggrieved, Mst. Kareem Bibi filed an appeal before the Collector which was accepted and the case was remanded to the Assistant Collector with direction to look into the matter as to whether Mst. Kareem Bibi is legal heir of Noor Muhammad or not according to the pedigree-table. Thereafter, the matter remained pending for a long time and no proceedings whatsoever took place. Then Mst. Kareem Bibi filed Writ Petition No. 51-R of 1973 in which this Court vide order dated 09.10.1977 declared all the orders passed after 29.12.1969 to be without lawful authority and of no legal effect and remanded the case to the Assistant Commissioner, Hasilpur who was duly Notified Officer under Section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, for the decision of such cases. Thereafter, inquiry was conducted by the Assistant Commissioner, Hasilpur/Notified Officer and vide detailed order dated 26.07.1993 he declared that Mst. Kareem Bibi was not the daughter of Noor Muhammad deceased.
4. Feeling aggrieved, Mst. Kareem Bibi filed Writ Petition No. 2347 of 1993 against the said order, which was accepted vide judgment dated 20.02.1994, the order dated 26.07.1993 was set aside and the case was remanded to the Assistant Commissioner Khairpur Tamewali for decision of the case within three months. Again the matter was re-opened before the Assistant Commissioner Khairpur Tamewali in which claim of Mst. Kareem Bibi was accepted vide order dated 26.09.1994 and she was declared as real daughter of Noor Muhammad deceased. Feeling aggrieved by the said order, respondents No. 1 to 5 filed Writ Petition No. 2345 of 1994, which was allowed by the learned Single Judge in Chambers vide impugned judgment dated 28.09.2010 while setting aside the order dated 26.09.1994 and Mst. Kareem Bibi was declared as not the daughter of Noor Muhammad deceased.
5. Hence this Intra-Court Appeal.
6. 3.Learned counsel for the appellants contends that the impugned judgment dated 28.09.2010 passed by the learned Single Judge in Chambers is not sustainable in the eye of law as it was passed on the basis of evidence recorded by the Assistant Commissioner/Notified Officer of Hasilpur whose order was set aside by this Court vide judgment dated 20.02.1994 passed in Writ Petition No. 2347 of 1993, on the ground that he was not competent to do so, as he was not the Notified Officer/Assistant Commissioner Khairpur Tamewali under the settlement law, therefore, reliance upon the evidence recorded by the Assistant Commissioner/Notified Officer of Hasilpur by the learned Single Judge in Chambers is not legally justiciable. He further contends that the order dated 26.09.1994 passed by the Assistant Commissioner/Notified Officer of Khairpur Tamewali cannot be interfered with by this Court while exercising constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. On the other hand learned Additional Advocate General assisted by learned counsel for the respondents has supported the impugned judgment.
7. 4.We have heard the arguments advanced by the learned counsel for the parties and perused the record with their able assistance.
8. 5.It is an admitted fact that order dated 26.07.1993 passed by the Assistant Commissioner/Notified Officer of Hasilpur was set aside by the learned Single Judge in Chambers vide judgment dated 20.02.1994 passed in Writ Petition No 2347 of 1993.The operative part of the said judgment is reproduced herein below:-- "4.The learned A.A.G. finds himself unable to defend the order in question in view of the legal position and previous order of this Court. I, therefore, accept the petition and set aside the impugned order as illegal and without lawful authority and send back the case to the Assistant Commissioner, Khairpur Tamewali for decision of the case within three months."
9. ' When the order dated 26.07.1993 passed by the Assistant Commissioner/Notified Officer of Hasilpur was set aside by this Court vide order dated 20.02.1994 on the ground that Assistant Commissioner/Notified Officer of Hasilpur was not the notified officer under the Settlement Laws for the cases of Tehsil Khairpur Tamewali, hence, he was not competent to pass such order.
10. 6.Now the question arises that what is the legal value of the evidence recorded by such an incompetent officer. The most important aspect of the case in hand is that the proceedings before the Notified Officer/Assistant Commissioner, Hasilpur, who has recoded the evidence of both the parties were incompetent and without jurisdiction. Since the Assistant Commissioner/Notified Officer of Hasilpur was not the competent/concerned Notified Officer/Assistant Commissioner, therefore, all proceedings conducted by him including that of recording of evidence were patently illegal being coram non judice, therefore, not only the order passed by him but also the evidence recorded by him loses legal value as the case was to be exclusively triable by the Assistant Commissioner/Notified Officer of Khairpur Tamewali.
11. 7.This case can also be looked into from another- angle i.e. when the very assumption of jurisdiction by the Assistant Commissioner/Notified Officer of Hasilpur was declared to be illegal and without lawful authority then the whole proceedings including that of recording of evidence, which culminated in passing order by such officer, together with superstructure is liable to fall on ground. In taking this view, reference can be made to case titled Yousaf All vs. Muhammad Aslam Zia and 2 others (PLD 1958 SC 104). While passing the impugned judgment dated 28.09.2010, the learned Single Judge in Chambers has heavily relied upon the evidence recorded by the Assistant Commissioner/Notified Officer of Hasilpur whose order was set aside by this Court, therefore, keeping in view the position explained above, reliance upon the evidence recorded by an incompetent officer is not justiciable.
12. 8.It is pertinent to mention here that the Assistant Commissioner/Notified Officer of Khairpur Tamewali, while passing the order dated 26.09.1994 impugned in the writ petition, mainly relied upon RL-II No. 25 which throughout remained under challenge, therefore, the said order declaring Mst. Kareem Bibi as real daughter of Noor Muhammad on the basis of RL-II No. 25 is neither justiciable nor sustainable as it was incumbent upon the said officer to hold a full-fledged inquiry by giving chance to both the parties to produce their oral as well as documentary evidence to resolve the controversy between the parties.
13. 9.For the foregoing reasons, this Intra-Court Appeal is allowed. The impugned judgment dated 28.09.2010 passed by the learned Single Judge in Chambers and the order dated 26.09.1994 passed by the Assistant Commissioner/Notified Officer of Khairpur Tamewali are set aside. The case is remanded to the Assistant Commissioner/Notified Officer of Khairpur Tamewali with a direction to hold a full-fledged inquiry as to whether Mst. Kareem Bibi is real daughter of late Noor Muhammad or not by allowing the parties to produce their oral as well as documentary evidence.
14. He shall conclude the proceedings positively within a period of six months after receipt of certified copy of this order.