' MUHAMMAD ISHAQ KHAN, J.-This constitutional writ petition under Article 199 of the Constitution is directed against the orders of respondent No, 4 dated 4th January, 1976 and 20th December, 1976 and of respondent No, 2 dated 7th May, 1978 and 18th July, 1978 being illegal, without lawful authority and of no legal effect on the rights of the petitioners.
2. The facts, out of which the present petition arises are, that Mst. Khijani (since dead) was the paternal-aunt of the petitioners Abdul Saeed and Abdul Qayum sons of Shah Sabab, residents of Ayubun, District Chitral; that the said Mst. Khijani preferred her claim to certain immovable and movable property in the Court of Deputy Commissioner, Chitral through her applications dated 25th November, 1974 and 31st January, 1975 (Annexures 'A' and `B'); that the Deputy Commissioner ultimately referred the matter to `Mizan-e-Shariat' and after inquiry a report dated 29th September, 1975 .Was submitted by 'Mizan-e-Shariat' to the Deputy Commissioner (Annex. 'C'); that the Deputy Commissioner while agreeing with this report through his order dated 4th January, 1976 accepted the same and held Mst. Khijani to be the owner of the property detailed in her applications, referred to above. This order was later on confirmed by the Deputy Commissioner through an order dated 20th December, 1976; that the present petitioners filed an appeal against the orders of respondent No, 4, Deputy Commissioner in the Court of respondent No, 3, Additional Commissioner, Malakand Division, and as Mst. Khijani had died before the hearing of this appeal and as she had no other heirs excepting the petitioners, therefore, this appeal was accepted by the learned Additional Commissioner vide his order dated 6th November, 1977 (Annex. 'F'); that Khalilur Rehman, respondent No, 1, for the first time instituted a revision petition in the Court of respondent No, 2, Deputy Secretary Government of N.-W.F.P., Home and Tribal Affairs Department, Peshawar, against the order dated 6th November,1977 of respondent No,
3. In this revision, petition he claimed the property of Mst. Khijani on the basis of a so-called gift or will-deed dated 23rd March, 1975. This revision was accepted by respondent No, 2 vide his order dated 7th May, 1978; that in view of certain ambiguities in the said order of respondent No, 2, the present petitioners filed a review application for clarification of the points which was, however, rejected by order dated 18th July, 1978, hence the present writ petition.
3. Learned counsel for the petitioners contended that when Mst. Khijani filed her applications claiming the disputed property, at that time Regulation No, 1 of 1974 and Regulation No, 2 of 1974 were enforced in that area and the concerned authorities were therefore, legally bound to have applied the provisions of the law made applicable by virtue of the said two Regulations; that respondent No, 1, Khalilur Rehman was never a party in any proceedings between the petitioners and Mst. Khijani. However, the learned counsel further argued, that he was acting as attorney (Vakeel) of Mst. Khijani in the proceedings before the lower Courts: that the alleged gift or will-deed in favour of respondent No, 1 by Mst. Khijani was never the subject-matter of any inquiry or litigation between the petitioners and respondent No, 1, nor it is correct that 'Shari' decision has ever been given in the matter, therefore, the so-called proceedings, if any, are ex parte, collusive, hence not binding on the petitioners ; and that the illegal and bogus nature of the alleged gift deed in favour of respondent No, 1 is manifest from the fact that he has never remained in possession of the disputed property in pursuance of this gift-deed. On the other hand, he argued that the disputed property has all along been in possession of the petitioners and neither Mst. Khijani nor Kalilur Rehman had ever remained in its possession.
4. Learned counsel for the respondents also heard and record perused. It is admitted by the learned counsel for the petitioners that Mst. Khijani filed two applications dated 2nd November, 1974 and 31st January, 1975 before the Deputy Commissioner claiming that after the death of her husband, she is the owner of the movable and immovable property left by her husband and which in fact was given to her in lieu of dower by her husband in his lifetime. It is also admitted that the matter was referred to `Mizan-e-Shariat by the Deputy Commissioner, and on receipt of a report from the said Mizan, the Deputy Commissioner held Mst. Khijani to be the owner of the said property vide order dated 14th January, 1976, which was later on confirmed by him vide order dated 20th December 1976. True that the petitioners challenged these orders by way of an appeal, which was accepted by respondent No, 3 vide order dated 6th November, 1977 but on a revision filed by respondent No, 1 before respondent No, 2, he accepted the revision petition, set aside the order dated 6th November, 1977 and restored that of the Deputy Commissioner dated 4th January, 1976 confirmed on 20th December, 1976 because, according to him, these orders were based on the Shari Award of the `Mizan-e-Shariat.' The reasoning given by respondent No, 2 in this order dated 7th May, 1978 are quite convincing and according to law. The learned counsel for the petitioners has failed to show how can he challenge these orders, nor he was able to cite any case law applicable to the facts of the case.
5. On the other hand, learned counsel for the respondents controverted the arguments of the learned counsel for the petitioners by citing case law on the point. The first authority which he cited is H. M. Saya & Co. v. Wall All industries and another (1) wherein it has been held as under :- "Appeal, principle determining right of-Person not party to proceeding-Has right to appeal if his interest adversely affected by judgment or decree-Leave of Court to appeal can be presumed if appeal by such person already entertained without any formal application."
As such, the objection of the learned counsel for the petitioners falls to the ground that Khalilur Rehman respondent No, 1 was never a party party in any proceedings between the petitioners and Mst. Khijani and was not legally competent in filing a revision petition. Bakhsheesh and others v.
Jaffar and others (2) is another authority to rebut the contention of the learned counsel for the petitioners that respondent No, 1 could not file the revision petition as he was not a party to the litigation between the petitioners and Mst. Khijani. It has been held in this authority as under :- "Appeal-Impleading of parties-Respondent, a defendant in original suit, not impleaded as a party in appeal due to non-mention of his {{FOOT NOTE}}
(1) PLD 1965 (W. P.) Kar. 603 (2) PLD 1978 Pesh. 6 {{FOOT NOTE}} name in heading of certified copy of judgment supplied to appellant-Held, no litigant to be allowed to suffer for mistake of Court and respondent being interested in result of appeal ought to have been impleaded in appeal subsequent."
In this case, as the record shows, the respondent No, 1 had claimed that Mst. Khijani had gifted away the suit property in his favour vide gift-deed dated 22nd March, 1975 therefore, we hold that the former was within his legal rights to file the revision petition, which was accepted through the impugned order.
' Next, the learned counsel for the respondents cited the following authorities to show that the lower forums, having jurisdiction to decide the matter, were at liberty to decide it rightly or wrongly. In Muhammad Hussain Munir and others v. Sikandar and others (1) their Lordships held as under :- "It is wholly wrong to consider that the constitutional provision was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exerciseable in a full-fledged appeal, which plainly is not the intention of the Constitution-makers. When there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction."
' In Messrs Khyber Tobacco Co. Ltd., Mardan v. Labour Union and another (2) it was observed as follows :- "Impugned order even though passed without jurisdiction yet doing complete justice-Order not liable to be set aside."
' Lastly, the learned counsel referred to the case Muhammad Sharif and another v. Muhammad Afzal Sohail etc. (3) wherein it was laid down, that :- "Writ jurisdiction-Finality of orders passed on appeal-Tribunal having jurisdiction to decide a matter-Competent to decide it rightly or wrongly-Mere fact of another conclusion being possible on evidence adduced, held, does not make it a case for interference in exercise of constitutional jurisdiction-Constitution of Pakistan (1973), Art. 199-Tendency of filing writ petitions in High Court against final orders passed by appellate Court deplored-Constitution of Pakistan (1973), Art. 199.
' In the same authority at page 522 in the course of decision of the case Abdul Rehman Bajwa v.
Sultan and 9 others (4) their Lordships of the Supreme Court held as under :- "Art. 199-Writ jurisdiction-Court or Tribunal set up under ordinary law having jurisdiction to decide a particular matter, has jurisdiction to decide it rightly or wrongly-Mere fact of decision being incorrect, or such as to which High Court would not have arrived, held, does not render decision without jurisdiction."
So keeping in view the above-mentioned authorities of the superior's Courts, we hold that the present case having been finally decided by the {{FOOT NOTE}}
(1) P D 1974 SC 139 (2) PLD 1976 Pesh. 8
(3) PLD 1981 SC 246 (4) PLD 1981 SC 522 {{FOOT NOTE}} respondent No, 2, cannot be reagitated in the exercise of writ jurisdiction in this Court, and the same is final and binding on the parties.
6. Before we conclude the case, we also note that the order dated 4th January, 1976 passed by the Deputy Commissioner, Chitral, Annex. `D on file, shows that it was provided therein that anybody who wants to challenge the same by way of appeal, can do so within thirty days. In fact, the petitioners filed an appeal before the Additional Commissioner, Malakand Division, on 4th May, 1977, which was hopelessly time barred.
7. On the view of the matter that we take, we are of the opinion that the petitioners were not within their rights to come to this Court invoking its constitutional jurisdiction, when the case has already been decided by the forums provided for it, finally. As such, this writ petition is without any force and the same is hereby dismissed, and the orders of respondent No, 2 dated 7th May, 1978 and 18th July, 1978 and that of respondent No, 4 dated 4th January, 1976 confirmed on 20th December, 1976 are upheld.