ABDUL HAMEED BALOCH, J.----The petitioner/ defendant questioned judgments and decrees dated 13th February , 2018 and 5th October , 2018 (impugned judgments and decrees) passed by Civil Judge-II, Quetta and Additional District Judge-IV , Quetta (trial and appellate court), whereby the suit of the respondents/ plaintif f's was decreed and appeal filed against the same by the petitioner / defendant was dismissed.
2. Precise facts are that the plaintif fs filed a suit for declaration and permanent injunction against the defendants in the Court of Civil Judge-II, Quetta contending that the plaintif fs are recorded owners of land bearing khasra No. 837 Mohai Viala Nohsar , Mouza Nohsar , Tappa Nohsar , Tehsil Saddar Quetta, comprising of two portions measuring 6 rods, 9 poles and 20 rods 27 poles. The plaintif fs after approval of site plan and required codal formalities started construction of shops. Seventeen shops were constructed and rented out, while 27 shops were almost near to completion as only shutter gates are to be fixed. Now the defendants forcibly have forbidden the plaintif fs. The defendant No. 1 submitted written stateme nt, in which he has not disputed the ownership of the plaintif fs, but stated that the alleged construction is within 1143 meters to PAF Base which create security threat as such prayed for dismissal of the suit. The trial court framed issues, on which the parties produced pro and contra evidence. On conclusion the trial court vide judgment and decree dated 13th February , 2018 decreed the suit. Being aggrieved of the same the petitioner/ defendant No. 1 filed appeal before appellate court, but the same was dismissed, vide judgment and decree dated 5th October , 2018, hence this revision petition.
3. The learned counsel for the petitioner contended that the judgments of both the courts below are contrary to law and facts. The trial court failed to frame issues which contain all controversial points which is admitted by one party and denied by other . Under SRO No.706(I)/2003 dated 8th July, 2003 an area of 1143 meter of Old Bomb Dump Samungli Quetta is required to be dealt with the provisions laid down in the SRO. The plaintif fs have illegally raised construction near the boundary wall of PAF Base which caused security threat. The learned counsel further contended that the judgments of the courts below are based on supposition. Prayed for setting aside of the judgments of the courts below .
4. Conversely the learned counsel for the private respondents/plaintif fs veheme ntly opposed the contention of petitioner stating, that the respondents/plaintif fs are recorded owners of the land in question. The ownership of the respondents/plaintif fs have not been disputed. The law of the land guaranteed every person has right to utilize his land, no one has right to interfere in it: The learned counsel lastly stated that the judgments of the courts below are well reasoned needed not to be interfered.
5. The learned Additional Advocate General supported the contention of the counsel for the petitioner .
6. Heard and perused the record with the assistance of learned counsel for the parties. The trial court vide judgment and decree dated 13th February , 2018 decreed the suit of the plaintif fs. The relevant para reads as under: "35. After declaring the plaintiffs to be entitled for the relief claimed for, the suit of plaintiffs is hereby decreed in their favour , and it is ordered that"
"----Property bearing khasra No. 837 Mohal Viyala Noushar Moza Noushar Tappa Noushar Tehsil Saddar Quetta, comprising of two portions measuring 6 rods 9 poles and 20 Rods 27 poles belong to the plaintiffs, which is sitaated within the restricted area of 1143 meter of the outer parapet of Samungli Air Base. The defendants, under the provisions of Works of Defence Act, 1903 (VII of 1903), through collector are bound to cause public notice, invite and inquire into the objections (if any) which any interested person has stated pursuant to the notice given, and shall, after holding enquiry have to announce the award under his hand regarding the true area, the compensation to be allowed, and the apportionment and payment of such compensation according to the award to persons entitled thereto. The defendants are required to follow such procedure. Till adopting such procedure, the defendants are strictly restrained from interference in the peaceful possession and construction work of the plaintiffs on the suit property .
If at all, the land of the plaintiff is require d by the defendants for the purpose of any defence work the same be acquired strictly in accordance with the provisions of The Land Acquisition Act, 1894 by payment of compensation at the present market value to the plaint iffs and the concerned land owners. Parties shall bear their own costs.
Decree sheet be prepared."
7. The record reveals that the petitioner/ defendant has not disputed the ownership of the respondents/ plaintif fs.
Admittedly the respondents/ plaintif fs are recorded owners of the suit land. Neither the petitioner/ defendant nor the remaining respondents have challenge d the mutation entries before revenue hierarchy . Article 23 of the Constitution of Islamic Republic of Pakistan, 1973 (The Constitution) reads as under: "23. Provision as to property . Every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan, subject to the constitution and any reasonable restrictions imposed by law in the public interest."
8. The word property includes moveable and immoveable property . Every citizen of the country has a right to own, hold and acquire property which right cannot be taken away other then due process of law. No person can be deprived from his/their proprietorship without process of law. The right to acquire own property subject to some reasonable restriction as contained in the Land Acquisition Act, 1894. Right to hold, own and dispose of property is one of the fundamental rights as envisaged under the above referred to Article. It would not be irrelevant to refer Article 24 of the Constitution, which reads as under:
24. Protection of property rights. (1) No person shall be compulsorily deprived of his property save in accordance with law .
(2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefore and either fixes the amount of compensation or specifies the principles on and the manner in which compensation is to be determined and given.
(3) Nothing in this Article shall affect, the validity of--
(a) any law permitting the compulsory acquisition or taking possession of any property for preventing danger to life, property or public health; or
(b) any law permitting the taking over of any property which has been acquired by, or come into the possession of, any person by any unfair means, or in any manner , contrary to law; or
(c) any law relating to the acquisition, administration or disposal of any property which is or is deemed to be enemy property or evacuee property under any law (not being property which has ceased to be evacuee property under any law); or
(d) any law providing for the taking over of the management of any property by the State for a limited period, either in the public interest or in order to secure the proper management of the property , or for the benefit of its owner; or
(e) any law providing for the acquisition of any class of property for the purpose of-
(i) providing education and medical aid to all or any specified class of citizens; or
(ii) providing housing and public facilities and services such asroads, water supply, sewerage, gas and electric power to all or any specified class of citizens; or
(iii) providing maintenance to those who, on account of unemployment, sickness, infirmity or old age, are unable to maintain themselves; or
(f) any existing law or any law made in pursuance of Article 253.
(4) The adequacy or otherwise of any compensation provided for by any such law as is referred to in this Article, or determined in pursuance thereof shall not be called in question in any court."
9. The above referred Article recognize right of a person to hold the property . No person shall be compulsory deprived of property save in accordance with law. Any act of executive authority depriving a person from his property is contrary to law unless the act is in accordance with law. The authority under the Government cannot deprive a person from the ownership of his land through executive action.
10. Every citizen has a right to utilize his property , earn his/their livelihood. The Article 9 of the Constitution guaranteed the life and liberty of a citizen . The record reflects that the petitioner / defendant without adopting legal procedure provided under the law has forbidden the private respondents/plaintif fs from utilization of their land.
Reliance is placed on case Zubaida Yaqoob Chaudhary v. Military Estate Officer, PLD 2018 Lahore 295, wherein it was held: "4. All what has been done by the respondents was under the jurisdiction vested in the .said respondents/Federal Government within the meaning of a piece of legislation enacted during the era of slavery and the Masters, who were ruling this subcontinent enacted such law for the lands of their slaves.
Once Islamic Republic of Pakistan emerged on the globe in 1947 as an indepe ndent State, the people of free Pakistan in 1973 through their representatives in the National Assembly , adopt, enact and give to themselves, the Constitution, which reflects the will of the people of Pakistan to establish an order , which inter alia guaranteed the fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief faith, worship and association, subject to law and public morality .
Article 23 thereof provides a fundamental guarantee to every citizen to have the right to acquire, hold and dispose of property in any part of Pakistan, subjec t to the constitution and any reasonable restriction imposed by law in the public interest. In the same manner , Article 24(1) of The Constitution of the Islamic Republic of Pakistan, 1973 provides a guarantee that no person shall be compulsorily deprived of his property save in accordance with law, whereas Article 24(2) provides that no property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefor .
This schedule annexed with the impugned notification provides 10 stations, where restrictions were imposed under Section 3 of the Works of the Defence Act, 1903 (VII of 1903), which include Abbottabad, Peshawar , Sargodha, Multan, Karachi, Lahore, Gujranwala, Sahiwal, Jehlum and Quetta. The list, where Ammunition Depots are functioning, does not end here, as even other citizens of Pakistan are catering for such services.
It reminded the day of 10th April, 1988, which in fact was a day of great calamity before doomsday for Rawalpindi city, when all of a sudden a hell broke loose in Ojhri Camp at Murree Road, Rawalpindi, which is almost the central point of twin cities i.e. Rawalpindi and Islamabad, as missiles were flying across the inhabited localities of Rawalpindi and Islamabad. Although there has been no accepted statistical data available to date, but a careful account put the figure of deaths close to 4000 in the said accident. No concrete inquiry was ever conducted regarding said incident and if conducted , it never made public and it is still a mystery , as to whether it was an accident or an intentional attempt to put cover on what was received in the said Ammunition Depot meant for storage of ammunition of every nature received from United States of America and its other allies meant for Afghan Mujahideen fighting against Soviet forces in Afghanistan and twin cities were littered with missiles, artillery shells and projectiles on a day, when American Team was arriving to take account of the vast amount of military hardware meant to be stored in such Ammunition Depot.
The very presence of such Ammunition Depots in the inhabited areas would be a constant threat to the human lives both on account of an accident or an intentional step of criminal nature, which could not be ruled out in view of accident of Ojhri Camp.
It would be beneficial to refer that veteran politician Kalsoom Saifullah in her book published in September , 2011 in Pakistan has notified the Pakistani nation that it was none other than the ruler of that time himself, who ordered the explosion to be carried out in Ojhri Cam p, so that the threat of American checki ng of stringer missiles could be avoided.
In view of such horrifying chapter of our national life, till the time, such Ammunition Depots are functioning in inhabited localities, the possibility cannot be ruled out that such havoc can be played at any time in order to achieve the designs of any stakeholders of adventurous nature. Simple answer to such big question of our national calamity is that our inhabited localities must be saved from such dangerous dumps, which are situated within the residential areas and such Depots, stores must be established outside the inhabited localities.
Till the time, such alternate arrangements are made, the authorities concerned instead of imposing such unreasonable restrictions with reference to the areas outside the boundary walls of Ammunition Depots must be bound down to acquire the land, which possibly would be affected from the effects of the stocks stored in such Ammunition Depot and such required land would be subject to the land acquisition under the law against which the land owners are supposed to be compensated adequately as against the price of their land.
The provisions of Section 3 read with Section 7 of The Works of Defence Act, 1903 are in fare in complete negation of the Constitutional guarantees provided under Articles 23 and 24 of The Constitution of Islamic Republic of Pakistan, 1973. The Constitution, which the people of Pakistan through their parliamentarians adopt and enact, must be respected and given preference to the law promulgated by the Masters in the days of our slavery .
Practically when the provisions of The Works of Defence Act, 1903 are acted upon and given preference, it would remind the independent nation of Pakista n the days of slavery and the owners of the land, whose lands situate in the vicinity of such Ammunition Depots, for which restrictions have been imposed under Sections 3 and 7 of The Works of Defence Act, 1903, can only look towards their landed property wistfully .
5. Although the Constitutional guarantees with reference to the properties are made subject to law, but where restrictions are imposed for unlimited period, the same cannot be considered as "reasonable restrictions" as enshrined in Articles 23 and 24 of The Constitution of Islamic Republic of Pakistan, 1973 and as such, the restrictions imposed through the impugned notification for an indefinite period are not "reasonable restrictions".
This Court, while exercising its Constitutional jurisdiction under Article 199 of The Constitution of Islamic Republic of Pakistan, 1973 is not supposed to leave the people of Pakistan, who were subject to Constitution as helpless against the atrocities of the public functionaries and the rights and guarantees promised with the people of Pakistan must practically be given effect beneficially to them and such rights must jealously be guarded."
Reliance is also placed on case Ch. Muhammad Ishaque, Advocate v. Cantonment Executive. Officer, Chunian, District Kasur , PLD 2009 Lahore 240 .
11. The contention of learned counsel for the petitioner that the trial court has not framed issues as per pleadings. It is settled law that where parties were aware of controversy and had also led evidence then question whether issue was properly framed or improperly frame would become immaterial. Improper framing of issues cannot be considered a ground to remand the case unless it has cause grave injustice to a party . Both the parties led their evidence as they were aware of the controversy . There is no allegation that the trial court has not provided opportunity for adducing evidence. In such circumstances non-framing of issues on particular point is inconsequential. Reliance is placed on case Fazal Muhammad Bhatti v. Saeed Akhtar, 1993 SCMR 2018 , wherein it was held: "4. The pleadings and the issues as originally framed show that the parties were fully aware what was the subject- matter of controversy and what evidence was to be led by each one. The Court did not prevent the parties from leading evidence at the trial with regard to the defects in the gift. The non framing of a specific issue in such circumstances is inconsequential. It was held by this Court in the Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others (PLD 1971 SC 82) that if issues are not framed but allegations made in the plaint are challenged in the written statement and the Court has allowed evidence to be led, then a decision rendered without framing of the issues is not illegal. That has been the established law in the sub-continent as would appear from Sayed Muhammad v . Fatteh Muhammad (22 Indian Appeals 4)."
12. The scope of revisional jurisdiction of this court is limited. The revisional court has to examine three factors as envisaged under Section 115(1)(a), (b), (c), C.P.C. The revisional court is not court of appeal. Where conclusion of law and fact do not in any way affect the, jurisdiction of the court no matter however erroneous. The decision might be unless involves matter of jurisdiction, the section 115, C.P.C. cannot be invoked. Reliance is placed on case Mst. Zaitoon Begum v . Nazar Hussain, 2014 SCMR 1469 , wherein it was held: "19. After what has been discussed above, we are of the considered view that the learned Judge in Chamber of the High Court was fully justified in holding almost similar view by dismissing the two revision petitions of the appellant, after full reappraisal of evidence, adduced by the parties at the trial and also carefully considering the preponderance of the evidence. Thus, the conclusion drawn by the learned Judge of the High Court is not open to any exception.
20. Even otherwise, this Court in the case of Kanwal Nain v. Fateh Khan (PLD 1983 SC 53) has held that concurrent findings of two Courts below are not open to interference in limited revisional jurisdiction of the High Court, albeit, it may be, to some extent, erroneous on point of fact and on point of law , both."
In view of what has been discussed above the instant petition being devoid of merit is dismissed. The judgments and decrees dated 13th February , 2108 and 5th October , 2018 passed by Civil Judge-II, Quetta and Additional District Judge-IV , Quetta respectively are upheld. No orders as to costs.