This judgment shall dispose of Writ Petitions Nos. 233-R/82 and 251-R/82 as they arise out of a common question of law and fact.
2. The dispute in this case relates to a portion of property No, S-19-R-27, known as E. Plomer Building, The Mall, Lahore, The entire property was originally disposed of in auction by the Settlement Department in consideration of Rs, 20,00,000 in favour of seven joint bidders (according to the petitioners). The case of the respondents is that it was transferred in favour of eight joint bidders. This is, however, not material for the purpose of resolving the controversy involved in these petitions. It is an admitted fact that all the joint bidders were liable to make payment jointly and severally. A default was allegedly committed in respect of payment of three shareholders to the extent of Rs, 6,55,900. In consequence, the property of the defaulters was resumed by the Settlement Deportment
3. Mr. S. M. Almas Ali, petitioner No, 2 made an offer to purchase the resumed property at the auction price. This offer was accepted by the Member, Board of Revenue (Settlement & Rehabilitation) vide his order dated 6-3-1976. This order is at page 89 under paragraph 357 of the noting part of the Settlement file which has been perused by me with the assistance of the learned counsel for the parties and reads thus :- "As proposed provided he agrees to pay in.Cash if any C B- is found bogus subsequently."
(Sd.)
Illegible 6-3-1978."
' Paragraph 358 of the noting file may also be referred which reads thus "Indemnity bond or a like undertaking may be obtained for compliance with the order above.
(Sd.)
Secretary (Ind.) Illegible 6-3-1976."
2. Prior to acceptance of the offer, petitioner No, 2, Mr. S. M. Limas entered into a deed of association dated 30-10-1973, whereby he agreed to allow a share in the said property to Khalid Masood, petitioner No. 1, to the extent of Rs, 6,10,900.
5. The petitioners executed separate indemnity bonds dated 16-3-1976. The terms and conditions of both the bonds are identical. Paragraphs Nos. 1, 2 and 5 of the same are reproduced :- "I. That 1 am the transferee of a portion of a big mansion bearing No, S-19-R-27, The Mall, Lahore.
II. That I have paid the entire price of the portion mentioned above. V. That in case any compensation book is found bogus or forged, I shall repay the equivalent amount in cash and in case of failure, the Department will be authorized to recover the same from any immovable or movable properties under the Land Revenue Act."
6. Petitioner No, 2 also admitted this fact vide paragraph 5 of C. M. No, 766/83. This was followed by separate transfer orders issued in favors of the petitioners. Subsequently, the Additional Settlement Commissioner (Industries), Punjab, Lahore, vide his memo. Dated 22-4-1982, called upon the petitioners to show cause as to why the transfer of the said property from their names be not cancelled. It reads thus "Subject : Show-Cause Notice.
' On direction from Martial Law Headquarters, Lahore an enquiry was conducted, as a result of which it has been found that all the Compensation Books tendered by you (including your own) for the adjustment of auction price, amounting to Rs, 6,55,9CO3 of the portions transferred to you in E- Plomer Building, The Mall, Lahore, bearing property No, S-19-R-27, have not been found to be genuine.
' You are, therefore, asked to show cause within 15 days why transfer of the said property from your names be not cancelled and resumed, besides any other action which may be necessary under the circumstances of the case.
(Sd.)
Addl. Settlement Commissioner (1ND), Punjab, Lahore."
7. The petitioners impugned the aforesaid show-cause notice, as well as, the office memorandum dated 22-4-1982, issued by the Settlement Commissioner (Industries), Punjab, Lahore, to Mr. Muhammad Aslam Bhatti, Deputy Settlement Commissioner-II, Farid Kot House, Lahore, on the basis of which the said show-cause notice was issued. It was stated in the memorandum, in question, that in consequence of a direction from the Martial Law Headquarters, Lahore, an inquiry was conducted, as a result of which it has been found that compensation books tendered by the petitioners for the adjustment of auction price amounting to Rs, 6,55,900 of the property, in dispute had been found to be ingenuine according to the report of the Officer Incharge, Record Room, Farid Kot House, Lahore, and that of the Deputy Settlement Commissioner (G), Headquarters Office, Lahore.
8. The main grievance of the petitioners is that respondent No. 1 had no jurisdiction to issue the impugned notice and take proceedings in consequence thereto. The petitioners were directed by order dated 9-10-1982 to raise this question in the first instance before respondent No. 1. The petitioner, therefore, took up this objection before respondent No. 1, who held by order dated 11-11- 1982 that he had jurisdiction to scrutinize the authenticity and genuineness of the compensation books tendered by the petitioners. Reliance was placed on Muhammad Weil v. S. A. M. Khan Member, Board of Revenue, West Pakistan Lahore and 3 others (1) ; Muhammad Hussain v.
Muhammad Gulzar and 4 others (2); Qutubuddin and others v. Sardar Hidayat Ullah Khan Mokal and another (3) ; Mst. Bhano and another v. Mian A. M. Saeed and others (4) ; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (5) ; Mst. Chanda Begum v.
Settlement Commissioner and another (6) and the judgment of the Supreme Court in C. P. S. L. A.
No, 746 of 1977, dated 3-12-1979, in support of the proposition that fraud vitiates even the most solemn proceedings and no party should be allowed to take advantage of his fraud and the Court had suo Motu power to re-call or review an order obtained from it by fraud.
9. Mr. Ishaque Muhammad Khan, learned counsel for the petitioners vehemently argued that after the issuance of the transfer orders the Settlement Department had become functus officio and even on the pretext of fraud the transfer orders cannot be interfered with and the only remedy in such cases is to invoke the jurisdiction of the civil Court. In support of his contention reliance was placed ,on Muhammad Shaft v. Mauj Din Khan and 3 others (7) ; Syed Murid Hussain Shah v. Mufti Muhammad Yousaf Ali and another (8) ; S. Anwar Hussain Sani v. Sarfraz Ahmad and 2 others (9) ; Mst. Jehan Ara Begum v. Bashir Ahmad and others (10) ; Haji Faizul Hague Khan v. Syed Abdul Hamid and another (11) and unreported judgment of this Court in Ch. Abdul Hamid v. Mr. Muqarrab Khan etc. W. P. 830/79.
10. Learned counsel for the petitioners next contended that after the repeal of the Evacuee Laws the Settlement Authorities have become nonexistent and only pending cases or the cases remanded by the Supreme Court or a High Court could have been dealt with as contemplated by section 2(2) of the Evacuee Property and Displaced Persons (Repeal) Act (XIV of 1975). He emphasized that in the instant case no matter was pending within the ambit of section 2 of Act XIV of 1975 and therefore, respondent No. 1 had no jurisdiction to issue the impugned notice. Reference was made to Sungreen & Co. Ltd., Karachi v. Noman Bai and 4 others (12) and Ahmad Din v. Deputy Settlement Commissioner, Lahore and another (13).
11. Mr. Ishaque Muhammad Khan further submitted that The Chief Settlement Commissioner, Lahore v. Raja Muhammad Afzal Khan and others (14) relied upon by respondent No. 1, in his order dated 11-11-1982 is distinguishable, in that, it related to the period when the Settlement Authorities existed, whereas after the repeal of the Evacuee Laws it ceased to exist and therefore, respondent No. 1 cannot take any advantage of the dictum laid down in the said authority.
12. It was next contended that the respondents have no jurisdiction to hold that the compensation books were bogus and cancel the transfer on the {{FOOT NOTE}}
(1) PLD 190 Lah. 614 (2) 1976 SCMR 308
(3) 1976 SCMR 524 (4) 1969 SCMR 299
(5) PLD 1975 SC 331 (6) PLD 1977 SC 503
(7) PLD 1976 Lab. 17 (8) 1974 SCMR8
(9) PLD 1971 SC 669 (10) 1975 SCMR 401
(11) 1976 SCMR 429 (12) PLD 1978'Kar. 100
(13) PLD 1977 Lah. 761 (14) PLD 1975 SC 331 {{FOOT NOTE}} ' basis of the indemnity bonds. The precise submission was that the indemnity bonds by itself do not confer jurisdiction upon respondent No, I to sit as a Judge. The indemnity bond is a contract between two parties and in case of breach of any condition, the aggrieved party should go to civil Court instead of adjudicating the dispute himself. In this connection reference was made to Pakistan Refugee Rehabilitation Finance Corporation v. K.S. Kammu Mian Malik and 2 others (1). In the precedent case it was held that section 11 of the Pakistan Refugees Rehabilitation Finance Corporation Ordinance (XV of 1948) authorises the Corporation to recover as land revenue all sums due to it but the provisions do not authorise the Corporation to unilaterally declare sums due to it from a debtor.
13. The learned counsel for the petitioners contended that transfer orders were issued after due verification as to the genuineness of the compensation books. In this connection reference was made to photostat copies of certain documents placed at pages 35, 45, 48, 50, 52 and 56 of the writ petition. He further submitted that scrutiny of the compensation books was made by the competent authority in accordance with the instructions issued from time to time and, therefore, this matter cannot be reopened.
14. The respondents have specifically stated in their written statement/ report that the documents Annexures B, B/I, B/2 and B/3, relied upon by the petitioners were forged documents. In any event, it is a disputed question of fact which cannot be examined in these proceedings.
15. Finally Mr. Ishaque Muhammad Khan vehemently contended that after the repeal of the Evacuee Laws work regarding documentation, recovery of outstanding transfer price etc. Was to be made by the Board of Revenue as contemplated by section 4 of Act No, XIV of 1975, and therefore, the Additional Commissioner (Industries) had no jurisdiction to initiate the impugned proceedings.
16. 1 have considered the submissions of the learned counsel for the parties and have also perused the record.
17. The indemnity bonds were admittedly executed after the repeal of Evacuee Laws and formed part of the terms and conditions of Transfer Orders issued to the petitioners, who stepped into the shoes of the original auction purchasers whose property was resumed.
18, The mere fact that the scrutiny of the compensation books was allegedly conducted and the books were allegedly found genuine would no ipso facto debar the Member, Board of Revenue to recover the outstanding transfer price if subsequently the Books were found bogus on a proper enquir conducted by him. The exercise of such a power would be in conformity with the provisions of section 4 of Act XIV of 1975 read with the terms and conditions laid down in the indemnity bonds.
Section 4 ibid provides :- "All the work regarding documentation, both for the urban and rural properties recovery of outstanding transfer price, rent or mortgage money of such property already disposed of and discharge of miscellaneous liabilities out of these recoveries, which may remain pending immediately before the repeal of the aforesaid Act and Regulations shall stand transferred to the Board of Revenue of the Province."
' The petitioners as such are estopped to take any exception to the inquiry proposed to be conducted by the respondents to examine the genuineness or
(1) 1970 SCMR 297 ' otherwise of the compensation books tendered by them for the adjustment of the transfer price of the property, in dispute.
19. I have considered the authorities cited at the bar, referred to above. I am clear in my mind that the dictum laid down in these cases is not applicaable to the facts of this case. The instant case is clearly distinguishable from the cases referred to above.
20. It may be pointed out that the Additional Settlement Commissioner (Industries), Lahore, in the impugned show-cause notice, has recorded a finding of fact that the compensation books tendered by the petitioners have not been found to be genuine. This observation is of no consequence, inasmuch as, Mr. M. H. Akhtar, Secretary (Settlement and Rehabilitation) Board of Revenue, after seeking specific instructions from the learned Member, Board of Revenue (S & R) has made a statement that the latter has expressed his willingness to hold an inquiry by himself. The statement marked 'X' has also been placed on record which reads thus :- "Before the Lahore H/Court, Lahore. S. P. No, 233-R-1982.
' It is respectfully submitted for the kind consideration of this learned Court that the M. B. R. (S & R) is prepared to hold a fresh enquiry into the genuineness or otherwise of the C. B.'s in question, after giving opportunity to the petitioners to present their case and then take action as per law.
(Sd.)
(M. H. Akhtar), Secretary S & R, BOR."
Dated : 29-3-1983.
21. Mr. S. M. Almas Ali, petitioner No, 2, also made a statement before the Court that he does not press the relief claimed in the writ petition, if this Court deems fit to issue any direction in the light of the statement marked 'X'. It may be observed that Civil Miscellaneous Petition No, 766/83 has also been moved by him seeking therein permission for depositing Rs, 45,000 in cash in relation to the Transfer Order issued to him. No such direction is called for in these proceedings. It is for the learned Members Board of Revenue to consider this request and pass such order as he may deem fit in accordance with law.
22. The learned Member, Board of Revenue is prepared to hold a fresh inquiry into the genuineness or otherwise of the compensation books after providing adequate opportunity of being heard to the petitioners, who should feel themselves satisfied rather than taking shelter of mere technicalities at this preliminary stage. Futhermore, in view of statement marked 'X', the write petition is premature.
23. The holding of fresh inquiry by the learned Member, Board of Revenue would not work any injustice to the petitioners rather it would provide them full opportunity to plead their case.
24. It is well-settled that the object of writ jurisdiction is to foster justice and not to perpetuate something which would be patently unjust and a writ can be refused even against a void order.
Refer S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore (1) and Nawab Syed Raunaq Ali etc. V.
(1) 1978 SCMR 367 ' The Chief Settlement Commissioner and others (1). I am, therefore, not inclined to grant the relief as prayed for in the writ petition in the exercise of my discretionary constitutional jurisdiction.
25. Be that as it may, in view of the undertaking given by the Members, Board of Revenue, vide statement marked 'X', I order that a fresh inquiry E be held into the genuineness or otherwise of the compensation books after providing an adequate opportunity of being heard to the parties by the learned Member, Board of Revenue (Settlement and Rehabilitation), as expeditiously as possible and not by the Additional Settlement Commissioner (Industries), Lahore and thereafter the former shall proceed in accordance with law. The petitioners in the writ petitions are directed to appear before the learned Member, Board of Revenue (Settlement and Rehabilitation), Punjab, Lahore, on 6-4-1983. The writ petitions are disposed of accordingly. {{FOOT NOTE}}
(1) PLD 1973 SC 236 {{FOOT NOTE}} P L I) 1983 Lahore 502 Before Fazal-e-Mahmood, J MIR SALAH-UD-DIN-Petitioner versus ADMINISTRATOR (RESIDUAL PROPERTY)
AND 6 OTHERS-Respondents Writ Petition No, 207-R of 1982, decided on 8th February, 1983.
(a) Scheme for the Management and Disposal of Available Urban Properties- -- Para. 3-Provisional Constitution Order (1 of 1981), Art. 9-Application under Scheme-Limitation- Contention that no limitation date could be prescribed for submission of such application under para. 3 of Scheme, repelled-Property standing already transferred and application being belated can be rejected-Scheme applicable to such properties as not already standing transferred- Refusal to condone delay or to entertain application when property in dispute already stood transferred and final transfer order issued, held, unexceptionable. (p. 507L4 Ch. Altaf Hussain v. The Chief Settlement Commissioner, Pakistan, Lahore and 2 others PLD 1965 SC 68 ref.
(b) Scheme for the Management and Disposal of Available Urban Properties- Para. 3-Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10-Application for condoning delay and entertainment of such application- Administrator Residual Property, held, competent to enter into merits of case while considering request to condone delay and to entertain application on ground that property already stood disposed of and whether in such circumstances delay could be condoned-Jurisdiction of Administration inherent-Application for condo nation of delay and entertaining application for transfer of property cannot turn round and be heard against his own conduct. (pp. 507]B Ghulam Mohi-ud-Din PLD 1974 SC 829 rel.
(c) Scheme for the Management and Disposal of Available Urban Properties- -- Para. 3-Locus poenitentiae-Property already standing transferred to person whose entitlement not subject to attack by virtue of Scheme- Review application before Administrator Residual Property not competent--Power of review, held, had to. Be specifically conferred and cannot be conceded as being inherent in Administrator Residual Property.-[Review]. [p. 508]C Pakistan v. Muhammad Hamlyatullah Farukhi PLD 1969 SC 407 and Muzaffar All v. Muhammad Shafi PLD 1981 SC 91 rel.
(d) Scheme for the Management and Disposal of Available Urban Properties- - Para. 3-Provisional Constitution Order (I of 1981), Art. 9-Contenton that High Court ought to have taken note of report of Settlement Department in course of previous Writ Petition that property was available property-Stand taken by Settlement Department in present petition contrary and categorically stating that property stood already transferred-Reports, held, only go to show mind and attitude of functionaries holding certain posts and opinions expressed in reports no binding- Whatever be evidentiary value of two reports latter cancels former. [pp. 508JD (e)Displaced Persons (Compensatiott.And Rehabilitation) Act (XXVIII of 1958)- -- S. 2, second proviso-Provisional Constitution Order (1 of 1981), Art. 9-Contention that unless declaration made commercial part of composite property could not be treated as a part of house- Disputed room of property prescribed as go down located in middle of house and part of same house-No collateral attack on orders of transfer of Settlement Authorities passed two decades ago can be made and order attained finality which never assailed but reconciled to fate acquiesced in those orders-Contention, held, not sustainable in cirumstances. [p. 509]E Abdul Majid's case PLD 1967 SC 437 ref.
( f ) Scheme for Management and Disposal of Available Urban Properties- - Para. 3 and Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10 read with Evacuee Property and Displaced Persons (Laws) (Repeal) Act (XIV of 1975)-Provisional Constitution Order (1 of 1981), Art. 9-Property including-disputed godown already standing transferred-Orders of transfer attaining finality and matter becoming transaction past and closed- Provisions of Scheme, held, not meant to be abused so as to affect finality of orders under Act which also stands repealed-Deputy Administrator or Administrator Residual Property cannot go behind final, orders-Refusal of request of petitioner to condone delay and.. To entertain application for transfer of godown under Scheme, held further, not open to valid objection whet her whole of property rightly or wrongly transferred-Interference declined in writ jurisdiction.. [p. 510]F & G Ch. Haniid-ud-Din for Petitioner.
' This writ petition has arisen out of litigation which has a chequered history in respect of a composite building situated on Brandreth Road, Lahore.
2. The petitioner in this case Mir Salahuddin is the real brother of Alauddin against whom an ejectment petition by the respondent No, 3 succeeded before a learned Rent Controller on 12-11- 1975 and the same was upheld upto the High Court in S. A.
0. No, 372 of 1978 decided on 7-4-1979 when 15 days' time was allowed to the said brother of the petitioner for vacating the premises.
3. The petitioner before the expiry of these 15 days entered the scene on 19-4-1979 by filing a civil suit for a declaration that he should not be dispossessed except in due course of law, in the Court of learned Senior Civil Judge, Lahore and together with it he filed an application under Order XXXIX, rules 1 and 2 read with section 151, C. P. C., for maintenance of status quo and restraining the respondent from ejecting him from the suit property.
4. The suit came up for hearing before the learned Senior Civil Judge on 22-4-1979 who granted an interim injunction on the same day with notice to the respondent for 3-5-1979. On written statement being filed, the facts were brought to the notice of the learned Senior Civil Judge i,e, eviction had been maintained upto the High Court level vide judgment dated 7-4-1979. The status quo order was therefore recalled and the plaint was rejected on the same day under Order VII, rule 11, C. P. C.
5. The petitioner then filed an appeal before the learned Additional District Judge on 16-7-1979 which was accepted on 3-11-1979. The view of the learned Additional District Judge was that Order VII, rule 11, C. P. C., was not applicable. The learned Additional District Judge therefore remanded the case.
6. The matter was then challenged before the High Court through Civil Revision No, 1443 of 1979 which was accepted by Mr. Justice Aftab Hussain on 3-5-1980 on the view that objection to a decree by the third party can be taken only under Order XXI and rules thereunder of the C.P.C. And not otherwise. The petitioner has now gone upto the learned Supreme Court by way of Civil Petition for Special Leave to Appeal No, 1115 of 1980 which is stated to be pending grant of leave. The learned counsel at the hearing had produced the paper book on my asking and these facts have been gathered from a perusal thereof.
7. The petitioner in the aforementioned set of circumstances and background opened up new front on the Settlement side by moving an application on 5-8-1979 before the Administrator (Residual Property) for transfer of a portion on the ground floor by describing it a go down of the property in question on the plea that the same had not been transferred to the predecessor in interest of the respondents and was available for transfer to him on the ground that he was in occupation thereof.
8. A report was called for from the Deputy Administrator who submitted the same on 11-8-1979. In the report, he gave the opinion that Qazi Amin-ud-Din predecessor interest of respondents Nos. 3 to 7 was the transferee of the property and the go down in dispute was in possession of Allauddin (real brother of the petitioner in this case Salahuddin) as a tenant of the transferee who was being ejected by the Civil Court due to non-payment of It was further reported by him that in order to defeat the process of ejectment the applicant, a brother of Allauddin, made an abortive attempt to file R. n. Form for transfer of the go down in his name which was not available. He recommended that in view of these facts the application for the grant of permission to file requisite form under the Scheme known as the Scheme for the Management and Disposal of Available Urban Property may be rejected and the request for the condonation of delay and for the transfer of the property may be turned down.
9. The Administrator Residual Property accordingly informed the petitioner Mir Salahuddin that his application dated 5-6-1979 for condemnation of delay had been rejected for the reason that the property in question was not available for transfer as it already stood disposed of. This was vide order dated 16-8-1979.
10. The petitioner then filed a review petition dated 10-9-1979 before the Administrator Residual Property. Again a report was made by the Deputy Administrator dated 24-10-1979 and this time the Administrator Residual Property vide his memo, dated 25-11-1979 purported to condone the delay.
11. On the happening of the aforesaid event, respondent No, 3 Qazi Zaheer-ud-Din filed Writ Petition No, 56/R of 1980 on the grievance that the order passed by the Administrator Residual Property on 25-11-1979 in reversal of his previous order dated 16-8-1979 was behind the back of Qazi Zaheer- udDin who was likely to be affected thereby. Both the learned counsel appearing for parties in this case gave a consent that the second order of the Administrator dated 25-11-1979 be quashed and the matter be remitted to him for fresh decision after notice to both parties and affording them an opportunity of being heard. This is vide order of the Lahore High Court dated 26-2-1981.
12. The matter was then taken up in remand by the then Administrator Residual Property and disposed of vide his order dated 8-12-1981. This learned officer took note of the fact that the property in dispute had been transferred by the order of the D. S. C., dated 28-3-1960 in its entirety to one Abdul Hamid. There was an appeal against this order which was accepted by Additional Settlement Commissioner, Mr. Muhammad Akram Khan on 20-6-1%0 and the property was transferred to Amin-ud-Din father of Zaheerud-Din. There was a further revision before Syed Ijaz Hussain Shah, Settlement Commissioner, which was dismissed on 22-5-1960. It was also noted by him that some rooms on the first for of this property were in possession of Allauddin brother of Salahuddin petitioner. He also took note of the eviction proceedings against Allauddin which culminated in the order. Of High Court dated 7-4-1979 passed in S. A.
0. No, 372 of 1978. And the institution of civil suit leading to civil petition for special leave to appeal before the Supreme Court of Pakistan and the proceedings under Scheme No, 9 at the instance of the present petitioner Mir Salahuddin. After elaborately noting the contentions raised from both the sides, the learned Administrator Residual Property, Lahore by his impugned order dated 8-12-1981 recorded the following findings : -
(i) that the silence of Salahuddin during the eviction application filed against Allauddin showed that the stand of the two brothers was alike.
(ii)that Salahuddin petitioner had filed application under Settlement Scheme No, 9 (Residual Property Scheme) and prior to that he had never given an application under any other Scheme.
From this fact, he inferred that the idea cropped up in his mind to have the godown treated separate from the rest of the property after 7-4-1979 when the S. A. O. Of his brother Allauddin was dismissed by the High Court against bis eviction on 7.4-1979.
(iii) It was furthar held that Nishter Road (Brandreth Road) in the year 1947 could not be declared to be commercial area and even if that be assumed that it was a commercial area even them either Allauddin or Salahuddin should have given an application before the Settlement and Rehabilitation Authorities but they never did so. The reason for this was that when the property was transferred in favour of the father of Zaheer-ud-Din, so all the occupants including these two brothers knew that the property stood so transferred.
(iv) The learned Administrator Residual Property found himself unable to agree with the argument of Salahuddin petitioner that since Zaheerud-Din knew that he had not been transferred the godown, therefore, he did not pay the entire transfer price. The reasoning of the Administrator Residual Property was that firstly Zaheer-ud-Din had obtained the transfer order in the year 1974.
Secondly, the balance of transfer price amounting to Rs, 3,200 was paid by him, in pursuance to the Department's notice of the year 1978. Thirdly, he was of the view that the petitioner could not capitalise on the weaknesses of the opposite side because according to him the failure of Salahuddin to apply for the transfer of the alleged godown upto 24-4-1979 spoke volumes.
(v) He repelled the contention of the counsel for Salahuddin to the effect that the opposite side namely, respondent No, 3 had admitted the possession of Salahuddin. This learned officer was of the view that the stand of the two brothers was alike and their desire to perpetuate their possession of the property could not adversely affect the opposite side.
(vi) He further repelled the contention of the petitioner Salahuddin that mere condonation of delay and permission to file the form did not adversely affect the interest of Zaheer-ua-Din respondent No, 3 because the case was now going to be deciaed by the Deputy Administrator. The reasoning given by him was that this was similar to the story 'of `the Arab and the camel'. The camel had sought permission of the Arab to put his neck under the tent toward off cold but ultimately occupied the whole of the tent.
(vii) After spot inspection, he came i.o the conclusion that the place in dispute was located in the centre of the house and was clearly and visibly part and parcel of the said house.
' For all these reasons, the application of Salahuddin petitioner was dismissed and the property was held to have already been transferred to Zaheetud-Din.
13. The petitioner has thus approached the High Court by way of the present writ petition.
14. When this petition came up for liming hearing, in order to appreciate the full facts of the case and the submission of the learned counsel, had summoned the record and also called for parawise comments.
15. 1 have heard the learned counsel for the petitioner at length on various dates. The departmental stand is to the effect that the property already stood transferred to the father of respondent No, 3 and thuswa s not available for disposal under the Residual Property Scheme. I propose to deal with the contentions of the petitioner raised at the hearing.
16. The foremost attack of the petitioner is directed against the entitlement of respondent No, 3 Qazi Zaheer-ud-Din on the reasoning that on the demise of Qazi Amin-ud-Din, the original transferee, respondent No, 3 has got himself declared as successor-in-interest through the exclusion of other heirs. This ground seems to have been raised in order to lend strength to the maintainability of the writ petition, otherwise I fail to understand how is it the concern of the petitioner. To my mind, he does not have the locus standi to agitate pro bono publico the question of inheritance of Qazi Amin-ud-Din. It is the concern of the legal heirs and they can sort out the matters amongst themselves. This is not a ground which can be captalised by the petitioner in order to succeed in the present proceedings.
17. The next contention of the learned counsel for the petitioner is that no limiting date could be prescribed for submission of applications under para. 3 of Settlement Scheme No, 9 (Residual Property Scheme). Reliance has been placed on the decision of the Supreme Court in re : Ch. Aftabf Hussain v. The Chief Settlement Commissioner, Pakistan, Lahore and 2 others (1).
I have considered the submission but I find no merit inlit. The enunciation of law made by the learned Supreme Court was based on the wording of the relevant provision of Settlement Scheme No. 1 framed under the Repealed Displaced Persons (Compensation and Rehabilitation) Act, 1958. I am unable to subscribe to the reasoning of the learned counsel that for all times it has been laid down that under no circumstances a limiting date can be legitimately prescribed by the Authorities acting under any statute. The present proceedings arise out of Act XIV of 1975. The case in hand is more aptly governed by the principle laid down in this very judgment at page 82 of the report as under :- "The C H. Form submitted by the second and third appellants was apparently intended as a second string to their bow if the first appellant's second C. H. Form was not considered valid. It was admitted only conditionally and was rejected, it seems rightly, when it was found that the house had already been transferred ' Moreover, this argument cannot succeeded for the reason that the position elucidated by the learned Supreme Court and followed by the High Court is that where it is found that the property already stands transferred, the application being belated can be rightly rejected on that ground.
The case in hand is covered by the latter category and not by the former. Additionally, the Residual Property Scheme, as is quite evident from its plain provisions, is only applicable to such properties as did not already stand transferred. In the present case, the finding is to the effect that the property in dispute stood transferred in the year 1960 in favour of the predecessor in interest of respondent No, 3 and even a final transfer order issued in 1974. Therefore, refusal to condone the delay or to entertain the application of the petitioner appears to me to be unexceptionable.
18. The next argument of the learned counsel for the petitioner is to the effect that the Administrator had to condone or not to condone the delay but he has wrongly assumed jurisdiction by entering upon the merits of th case. The argument seems to be not well based. It was incumbent up to the Administrator Residual Property, while considering the request of the petitioner to condone the delay and to entertain his application under the Residual Property Scheme, to address himself to the question whether the
19. {{FOOT NOTE}}
(1) PLD 1965 SC 68 {{FOOT NOTE}} ' property was an available property or not and if it was available whether the delay had to be condoned. I think the Administrator Residual Property has done well in firstly informing himself about the whole background of the case and then applying his conscious mind for the purpose of the decision of the question whether the application was to be entertained or not on the ground that the property already stood disposed of and whether in such circumstances the delay could be condoned. This jurisdiction was inherent in the Administrator Residual Property and it cannot reasonably be said that he assumed a jurisdiction which he did not possess. Moreover, the petitioner himself gave the application for condonation of delay and entertainment of his application for transfer and having done so, he cannot now turn around and be heard against his own conduct. The learned Supreme Court of Pakistan in the case of Ghulam Mohi-ud- Din (1) has already held that a party invoking the jurisdiction of a tribunal by his conduct is precluded from subsequently challenging the order passed on his own initiative.
19. The further ground urged by the learned counsel for the petitioner is that respondent No. 1 had himself earlier ordered on 20-11-1979 that it was not a fit case for the condonation of delay as the property stood transferred and therefore it had the jurisdiction to take a contrary view and thus his review application was competently filed.
I must observe in this respect that even if the order was admininstrative in nature, the ratio of the case of Pakistan v. Muhammad Himayatullah Farukhi (2) would fully stand attracted to the facts of the present case. In the precedent case, the Supreme Court had laid down the principle of locus poenitentiae even by virtue of the General Clauses Act. It was thus ruled that where an order had been passed and conveyed, it took legal effect and on the basis of it rights accrued in favour of the party, then the functionary did not possess the locus poenitentiae to vary or alter that order. The order dated 20-11-1979 was passed and conveyed and thus it took legal effect and created a right in favour of respondent No, 3 inasmuch as his entitlement could not be subjected to attack by virtue of the Residual Property Scheme. C Furthermore, there is no provision under Act XIV of 1975 or the Scheme framed thereunder providing for review of a previous order. The framers of the Scheme in their wisdom had only made a provision for a revision of the order of the Deputy Administrator Residual Property. The power of review therefore had to be specifically conferred and cannot be conceded as being inherent in Administrator Residual Property. Reference may advantage. Ously be made to the ratio of the decision of the learned Supreme Court in re : Muzaffar Ali v. Muhammad Shafi (3). The argument therefore, instead of going in favour of the petitioner, is against him.
20. It was next contended by the learned counsel for the petitioner that this Court ought to take notice of the fact that in the course of previous Writ Petition No, 56/R of 1980, the report submitted by the Department was in favour of the petitioner inasmuch as it had been stated therein that the property was an available property. I may, however, observe that the stand taken by the Department in the present case is to the contrary as it has been categorically stated that the property stood transferred way back in 1960 and is not an available property. I can do no better than observe that the reports of the Settlement Department in the previous writ petition and the present petition only go to show the mind and the attitude of the functionaries holding certain posts. The opinions expressed in the report are in no {{FOOT NOTE}}
(1) PLD 1964 SC 829 (2) PLD 1969 SC 407
(3) PLD 1981 $ C 94 {{FOOT NOTE}} manner binding and would not be advancing the case of the petitioner because the proceedings were being contested by private respondent No,
3. The impugned order of the Administrator Residual Property is to be adjudged on its own merits. At any rate, whatever is the evidentiary value of the two reports, the letter cancels the former. The argument therefore fails.
21. The learned counsel for the petitioner further sought to argue that by virtue of second proviso to section 2 of the Displaced Persons (Compensation and Rehabilitation) Act in respect of composite property, unless a declaration was made, the commercial part of the property could not be treated as a part of the house. The learned counsel relied on the ratio of Abdul Majid's case (1).
' The argument of the learned counsel cannot be sustained for many reasons. Firstly, the ratio of Abdul Majid's case would not apply to the facts of this case because the finding is that the room in question which is described by the petitioner to be a go down is located in the middle of the house and i.e a part of the house. Secondly, the petitioner is in no position to make collateral attack on the orders of the Additional Settlement Commissioner of the Settlement Commissioner passed way back in the year 1960 which have attained finality in law. The petitioner never assailed those orders as some of the other occupants did but failed. There can be no collateral attack on those orders in these proceedings more than two decades thereafter. The petitioner not having agitated against the orders of transfer reconciled to his fate and thus acquiesced in those orders. On no conceivable principle therefore, I can entertain this argument or sustain it. The argument is accordingly repelled.
22. Lastly, the learned counsel for the petitioner argued that the impugned order of the Administrator Residual Property stood vitiated for the reason which weighed with him that the writ petitioner had not applied under Scheme No 1 and therefore he could not claim transfer under Scheme No,
9. According to the learned counsel this was against the spirit of the Scheme.
' The argument in my view does not seem to proceed on correct appreciation of the reasons and the findings of the learned Administrator Residual Property. A perusal of his order would show that while taking stock of the entire background of the case and the various stakes through which the litigation has passed, he observed that the petitioner, for the first time had thought of having the godown in his possession declared as a separate unit after 7-4-1979 when the S. A. O. Against the eviction of his brother Allauddin had been dismissed by the Lahore High Court. The chain and sequence of events, as already noticed in the earlier part of my judgment, would itself show that the petitioner entered the arena after his brother Allauddin had lost the legal battle .Upto the High Court. The brother of the petitioner had been allowed 15 days' time for vacating the premises by the High. Court on 7-4-1979. Thereafter, the petitioner filed the suit for declaration and injunction on 19- 4-1979. It was still later that he thought of approaching the Authorities under, the Residual. Property Scheme in his effort. To strike at the very entitlement of the landlord by filing the aforesaid civil suit in respect of which a civil petition for special leave to appeal is pending before the learned Supreme Court. This was a relevant circumstance for the Administrator Residual Property to consider for deciding the question whether the ford {{FOOT NOTE}}
(1) 1967 C 437 {{FOOT NOTE}} ' was to be entertained or the delay was to be condoned or not and whether the proceedings before him were bona fide. The finding of respondent No. 1 is not to the effect that the provisions of Residual Property Scheme are not available to persons who did not apply under Settlement Scheme No. 1. 1 am therefore unable to read into the impugned order something which is conspicuous by its absence.
23. In the last analysis, I am firmly of the view that in the patent background of this case and facts established, the inference is irresistible that the petitioner is making his last attempt to catch a straw like a drowning man in his effort to revive water-logged disputes and matters which have become transactions past and closed. The provisions of Settlement Scheme No, 9 are not meant to be abused so as to affect the finality of the orders under the Displaced Persons (Compensation and Rahabilitation) Act, 1958 which stands repealed with effect from 1-7-1974. The very fact that on interpretation of various orders and documents it has been held by the Administrator Residual Property that the property in dispute of which the go down forms part already stands finally transferred in favour of respondent No, 3 concludes the matter. It was not open for the Deputy Administrator or the Administrator to go behind the final orders passed under the law as F it stood at the relevant time and therefore the refusal of the request of the petitioner to condone the delay and to entertain his application for transfer under Scheme No, 9 on the ground that the property already stood transferred is not open to any valid exception. It is not a case where a property had been transferred to a transferee under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 by description of a room of two, which clearly showed that there was still available some part of the property for disposal under the Residual Property Scheme. The whole property having been rightly or wrongly transferred, the matter cannot be reopened after decades because there was litigation between the petitioner's brother and the respondent and the petitioner is also interested in putting his weight in favour of his brother and to safeguard his own interest at the cost of the transferee.
24. No other point was urged before me.
25. I do not think this is a fit case where I should come to the aid of the petitioner in exercise of my discretionary jurisdiction. The writ petition G has no merit and the same is accordingly dismissed in Ihnine.
P I, D 1983 Lahore 510 Before Mazharul Haq, J.
MUHAMMAD RAMZAN-Convict-Appellant versus THE STATE-Responarnt Criminal Appeal No, 74 of 1981, heard on 4th June, 1983.
Penal Code (XLV of 1860)- --- Ss. 304, Part I, 300, Exception IV & 302-Sudden fight-Parties liking almost opposite to each other - Both sides armed and receiving injuries-Attack unpremeditated Deceased receiving solitary fatal injury-Which party offered provocation or assault first, immaterial in such circumstances-Accused, held, cannot be said to have taken undue advantage or acted in cruel and unusual manner in circumstances-.
Conviction of accused altered from S. 302 to S. 304, Part I, P. P. C.-Accused remaining in custody for 2 years before trial and served period of 2i years after conviction sentenced to period already undergone. [p. 514],1 & B Hafiz Muhammad Tariq for Appellant. Anwar Bhora for A.-G. For the State.
Date of hearing : 4th June, 1983.
' Muhammad Ramzan (45 years), his brother Muhammad Rafiq (35 years) and their cousin Muhammad Shafiq (25 years) were tried under sections 302/34, 307/34 and 323/34, P. P. C. By the Additional Sessions Judge, Faisalabad for the murder of Abdul Haq and for inflicting injuries to Muhammad Afzal and Muhammad Munir. The Additional Sessions Judge vide his judgment dated 22-1-1981 convicted Muhammad Ramzan under section 302, P. P. C. And sentenced him to life imprisonment and a fine of Rs, 2,000, and in default to undergo further rigorous imprisonment for six months. He also convicted Muhammad Ramzan, Muhammad Rafiq and Muhammad Shafiq under section 323/34, P. P. C. For causing simple injuries to Muhammad Afzal and sentenced then) to suffer R. I. For a period of six months each. He further convicted and sentenced them for three months' R. I. Each for causing injuries to Munir Ahmad. The sentences were, however, ordered to run concurrently. Muhammad Ramzan has come up in appeal.
2. Briefly the facts of the case are that on 10-9-1977 at about 9-00 a. m. The womenfolk of Muhammad Ramzan i. e. His wife and mother quarrelled with the wife and mother of Muhammad Afzal, complainant and exchanged abuses. Muhammad Ramzan also abused and pushed the mother and wife of Muhammad Afzal out of his house. Later on, being informed by his wife Mst.
Salam Parveen, Muhammad Afzal along with Abdul Haq deceased went to complain to the mother of Muhammad Ramzan, but and of Muhammad Ramzan's wife started abusing them. Muhammad Afzal and Abdul Haq abused them in retaliation and pushed them. So Muhammad Ramzan had a grudge against the complainant party. Thereafter in order to avenge the insult Muhammad Ramzan alongwith Muhammad Rafique and Muhammad Shafique came out in the lane and gave Lalkara that they will avenge the insult. They started abusing the complainant party. All the three were armed with Lathis and while raising Lalkara they assaulted the complainant pary.
Muhammad Ramzan inflicted Lathi blow to Abdul Haq, which hit him on the head and he fell down.
Muhammad Rafique inflicted injuries to Muhammad Afzal on the head. Muhammad Munir and Muhammad Boota were attracted by the alarm and reached the spot. Muhammad Munk tried to rescue Muhammad Afzal, but Muhammad Shafique caused a Lathi blow on his head. Thereafter Muhammad Rafique and Muhammad Shafique inflicted further Lathi blows to Muhammad Afzal and Muhammad Munir. Muhammad Boota intervened and rescued them. The accused went away.
Abdul Haq became unconscious. While Abdul Haq was having being carried to Jaranwala, he expired on the way. Afterwards, Muhammad Afzal went to Police Station, Jaranwala and made report Exh. P. K. To S. I. Muhammad Ibrahim Khan on 11-9-1977 at 2-00 a. m. The same night. The police station is at a distance of 15 miles from the place of occurrence. After registration of the case, the A. S. I. Went to the place of occurrence and sent the dead body of Abdul Haq for post- mortem examination to the Hospital.
3. P. W. 1 Dr. Khurshid Ahmad held his autopsy the dead body of Abdul Haq and found the following injury of blunt weapon "Contused swelling 3' x 2" on right side of head 3" above right .
' The Doctor found a depressed fracture of right temporal bone under this injury. A big clot of blood was observed inside the skull cavity. The brain had been compressed. In his opinion, injury No. 1 was sufficient to cause death in the ordinary course of nature and the cause of death was shock and compression of this brain.
' The Doctor also examined the witnesses. On the person of Muhammad Munir, he found the following simple injuries caused by a blunt weapon :-
(1) A lacerated wound 1r x 1/3" x scalp deep on top of head left side.
(2) A contusion 3"x 1" on left upper arm. The duration of the injuries was about 24 hours.
' The same day at 4-45 p. m. The Doctor examined Muhammad Afzal and found the following simple injuries caused by blunt weapon on them.
(1) A lacerated wound x scalp deep on right side of head.
(2) A lacerated wound i" x f" x skin deep on left side of head.
(3) A lacerated wound 1/3" x1/4" x skin deep on right side of head.
(4) An abrasion i" x 4" on back of right elbow joint.
(5) An abrasion i" x 4" on back of right elbow joint.
(6) An abrasion r X 113" on inner side of left forearm.
(7) A contusion 2"x 2" on left side of chest on its upper part.
(8) An abrasion 1/3' x 1/3" on outer side, right lumber area. The duration of injuries was about 24 hours.
4. P. W. 8 Muhammad Ibrahim A. S. I. Arrested the accused on 11-9-1977. Ramzan led to the recovery of Lathi Exh. P. 2 which was taken into possession vide Memo. Exh. P. G. Similarly Rafique and Shafique produced Lathis Exh. P. 3 and Exh. P. 4 which were taken into possession vide Memos. P. H.
And P. J. Respectively. The A. S. I. Prepared the injury statement Exh. P. L. And inquest report Exh. P. M.
He also prepared the injury statement (Exh. P. Q.) of Muhammad Ramzan, appellant and sent him to the Doctor for medical examination.
5, P. W. 1, Dr. Khurshid Ahmad Khan, examined Muhammad Ramzan accused on 12-9-1977, and found the following two injuries :-
(1) A contused abrasion 4" X r on mid line of head.
(2) A contusion 2" x 1" on back of right wrist joint. Both the injuries were simple caused by blunt weapon, The duration of the injuries was about two days.
6. After completing the investigation the accused were sent up for trial. They denied guilt and ascribed the case to enmity. Muhammad Ramzan appellant while explaining the case against him, made the following statement I am innocent. On 10-9-1977, at noon time, there was a quarrel between and my aunt Bani wife of Muhammad Alam, over the construction of the intervening well of or respective houses.
' Mst. Gullan, sister of Afzal P. W. And his wife Mst. Salaman and his monther Mst. Rashidan sided with my aunt and started abusing me which annoyed me and then I pushed them out of my house and also injured Mst. Saleema and Mst. Rashidan. At about 6-00 p. m. The same day I went to the street for calling Mst. Niamat Bibi to help the delivery case of my wife and when I was returning to my house from the house of Mst. Niamate, Afzal, Abdul Haq and Munir while armed with Dangs assaulted me near my house. I raised an alarm after having fallen to the ground which attracted Rafique and Shafique to the spot who rescued me by giving some blows to the assailants. Abdul Haq fell upon a log of wood in front of his house. My wife M.St. Allah Rakhi gave birth to a son after the occurrence the same day."
' Rafique and Shafique accused supported his statement. No accused led evidence in the case.
7. Relying on the prosecution evidence, the trial Court found Muhammad Ramzan appellant guilty of the murder. However, it came to the conclusion that since Muhammad Rafique and Muhammad Shafique did not inflict any injury to Abdul Haq, therefore, section 34, P. P. C. Was not invoked. Thus, they were only convicted for causing injuries to the witnesses.
8. The learned counsel for the appellant contended that since Muhammad Ramzan had insulted Mst. Gullan, Mst. Saleema and Mst. Rashidan, therefore, the motive was with the complainant party.
Further contended that the statement of the accused that his wife was in the family way and he had gone to fetch Mst. Niamate, a mid-wife was supported by the admission of P. W. 5 Mst.
Saleema wife of P. W. Afzal that Ramzan's wife gave birth to a son the same night.
9. I have considered the matter. Muhammad Ramzan has not denied his presence at the spot.
Therefore, the sole question for determination will be whether he was attacked by the complainant party and his co-accused acted in his defence and whether Abdul Haq received the fatal injury by a fall. The later part of his statement that Abdul Haq suffered the fatal injury by a fall was a highly improbable story. On the other hand, it is quite clear that both parties were armed with blunt weapons. This is borne out by the medical evidence. Prosecution witnesses have concealed the injuries suffered By Muhammad Ramzan. It thus follows that both sides have exaggerated. This is further supported by the contradiction in the statement of P. W. 6 Muhammad Afzal informant and his wife P. W. 5 Mst. Salma Perveen. According to her, the main occurrence, in which, Abdul Haq suffered fatal injury took place at 1-00 p. m. When her husband, who was a school master came home and was informed by her about the insult offered to, her in the morning by Ramzan. But according to Afzal, when he returned home, his wife told him that Ramzan had insulted her in the morning. On hearing this, he went to the house of Ramzan to lodge a protest, but he was not there.
He protested to his wife and mother, who abused him and he along with Abdul Haq quarreled with them and pushed them both. Further according to him, to avenge this insult, the accused appeared at his house in the evening at 6-00-p. m. And the main occurrence took place then. This discrepancy about the timing of the main occurrence in the statements of Muhammad Afzal and his wife to my mind explains away the whole case. It appears that the prosecution story as given by Mst. Salma Perveen P. W. 5, wife of the informant was nearer truth. Very likely a sudden fight ensued on the protest of Muhammad Afzal, in which, both sides were injured. Parties lived in the same lane and their houses were almost opposite to each other. Under the circumstances of this case, there was thus no question of a premeditated attack. In assessing the evidence trial Court erred in holding that when Abdul Haq was abusing Muhammad Ramzan, it did not mean that he was fighting with him. It, therefore, did not give the benefit of Exception IV to section 300, P. P. C. To the accused. It may be mentioned here that in the explanation to Exception 4, it is enacted in clear terms that "it is immaterial in such cases, which party offers the provocation or commits the first assault". The whole incident was undoubtedly without premeditation in the heat of passion upon a sudden quarrel. Since both sides were armed and Abdul Haq received solitary fatal injury, it cannot, therefore, be said that the appellant too under advantage or acted in a cruel and unusual manner.
I, therefore, alter his conviction from 302 to 304, Part I, P. P. C. As to sentence, Muhammad Ramzan remained in custody before his trial for over two years and thereafter, served a period of two years and five months after his conviction. Taking the two periods of his detention into consideration, I sentence him to a period of imprisonment already undergone by him, which 8 to my mind would meet the ends of justice in this case.. In addition, he is fined Rs, 3,000 in default of payment of fine, he shall suffer one year rigorous imprisonment. The fine, if realised, shall be paid to the heirs of the deceased.
10. In so far as his conviction on the two counts under section 323, P. P. C. For causing injuries to Muhammad Afzal and Muhammad Munir was concerned, neither P. W. 6 Muhammad Afzal nor P. W.
7 Muhammad Munir attributed their injuries to Ramzan. I, therefore, acquit him. His conviction and sentence on these two counts are set aside.