' This is an application under Article 9 of the Provisional Constitution Order 1981, for issue of a writ of certiorari or a writ of like nature directed against the reversing order dated 18-4-1984 of learned Additional District Judge, Gujrat, setting aside order dated 31-3-1982 of learned Rent Controller ordering eviction of the respondents from the premises in dispute. Facts relevant for the decision of the present constitution petition are that Irshad Ahmad and others applied to Rent Controller for ejectment of Abdul Hameed and others from the property in dispute on the grounds, (i) default in payment of rent, (ii) subletting of the premises by Abdul Hameed to Abdul Qadeer and others, (iii) reconstruction of the premises in accordance with the approved building plan, and (iv) personal requirement. Respondents, in their statement of defence, repudiated the contents of the eviction petition and pleaded absence of the relationship of landlord and tenants. Rent Controller framed following preliminary issue:- "Whether the relationship of landlord and tenant exists between the parties."
' Petitioners produced Rehmat Khan (A.W.1), Abdul Aziz (A.W.2) and Irshad Ahmad petitioner appeared as his own witness in support of the ejectment petition. Approved building plan, receipts for payment of tax, assessm ent records and a copy of F.I.R. were also tendered in evidence. On the other hand, Muhammad Boota, Bashir Ahmad in addition to Hameed appeared in defence. Rent Controller vide order dated 31-3-1982, relying on oral evidence and documents adduced in evidence, including the contents of the F.I.R. Exh . A.5/1 containing some admission contrary to the stand of Abdul Hameed that the property in dispute was his ancestral property, found in favour of the writ petitioners. An appeal was filed in the Court of learned District Judge, Gujrat, which was transferred to the file of the learned Additional District Judge. Court of appeal vide order dated 18- 4-1984, accepted the appeal, reversed order of the Rent Controller, holding that the relationship of landlord and tenant did not exist between the parties. Ejectment petition, in consequence, was dismissed. Impugned order dated 18-4-1984 is under challenge at the instance of the unsuccessful party. Arguments addressed by the learned counsel for the parties have been heard and with their assistance record has also been gone through.
2. Learned counsel for the petitioners vehemently contended that the evidence placed on record including the contents of the F.I.R. clearly showed that the relationship of landlord and tenant subsisted between the parties. It was stated that the documentary evidence brought on file by the petitioners was sufficient to prove their ownership and Abdul Hameed respondent's possession as tenant holding under the petitioners. On the other hand, there was no evidence to show that the property vested in Abdul Hameed. The main plank of defence was that Abdul Hameed, derived title to the property in dispute on inheritance, from his father. This fact was clearly belied by the contents of the F.I.R Exh.A .5 which contained an admission in unequivocal terms stating that the property in dispute was allegedly purchased by him from Abdul Malik its previous owner and predecessor-in-interest of the present writ petitioners. The cumulative effect of the entire evidence brought on the record was rightly considered by the Rent Controller and issue of relationship of landlord and tenant was correctly answered. The reversing order passed by the learned Additional District Judge, did not take notice of the F.I.R. which was properly proved and exhihited as part of evidence without any objection from the opposite side. Identity of the maker of the F.I.R was beyond dispute as Abdul Hameed had admitted in his deposition that it was he who had reported the matter to police and lodged the F.I.R. In this view of the matter, it was contended that learned Additional District Judge acted without jurisdiction and in violation of the law in holding the F.I.R. to be not proved properly. In this, the Court of appeal, omitted to consider a very important piece of evidence which went in favour of the writ petitioners and titled the scales in their favour. Omission to consider this very important piece of evidence having bearing on the issue of relationship of landlord and tenant, has clearly prejudiced the approach of the court of appeal.. Copy of the F.I.R. was put in evidence, without any objection from the opposite side. The fact of the making of the F.I.R. was admitted by Adbul Hameed. In this view of the matter, it was seriously contended that the learned Additional District Judge was in serious error in observing. "It is pertinent to point out here that the Rent Controller has wrongly placed reliance on copy of F.I.R.A.5/1 as it was not proved by its author (A.S.I.)." Learned counsel for the respondents in exercise of his right of reply, argued that the evidence on record was hardly sufficient to prove that the necessary relationship of landlord and tenant, existed between the parties. The Court of appeal had taken due notice of the evidence both oral and documentary and then in proper appreciation thereof, returned a finding against the writ petitioners. This being a finding of fact, may be at variance, was not open to scrutiny in constitutional jurisdiction. Even otherwise, the order Aid not suffer from any jurisdic tional error. As regards F.I.R. Exh.A.5/1, it was contended that in the absence of its author it could not be said to have been properly proved and made part of the record. To support his contention, learned counsel referred to Jaseemud Din Sarkar and others v. Emperor AIR 1931 Cal. 622 and King Emperor v. Vithu Balu Kharait AIR 1924 Bomb.
510. On examination of the two decisions referred to, it may straightaway be said that they do not provide much help. Both the cases pertained to the statements made under section 162, Cr. P.C. ratio of these two decisions therefore, is inapplicable to the facts of the case under consideration.
3. I have paid due consideration to the contentions raised at bar.
Learned counsel for the petitioners was on a firm ground in stating that the copy of the F.I.R. was proved in accordance with law and was part of the record and could not be ignored by the learned Additional District Judge in appreciation of the evidence made by him for finding out the existence of relationship of landlord and tenant. At the time, the document was tendered and marked exhibit the respondents did not raise any objection, if any, relating to its mode of proof which having been once waived could not be reagitated. No such objection was raised in the grounds of appeal before the learned Additional District Judge. It is well-settled principle of law that objection to the mode of proof, when not raised at the proper time, cannot be reserved to to taken subsequently.
Had the objection been taken at the proper time, the A petitioner could take appropriate steps to bring the author in the witness-box to prove the authenticity of the F.I.R. That apart, Abdul Hameed had himself admitted in his statement that it was he Who had reported the matter to the police and lodged the F.I.R. In this view of the matter, objection regarding mode of proof could not be raised, may be suo mote by the learned Additional District Judge. Even otherwise,' F.I.R. is a public document and its certified copy was admissible in evidence, without further proof. In Mst. Noor Khatun v. Noor Khan' PLD 1956 Lah. 293 Kaikaus, J. observed: "Another point argued on behalf of the appellant is that a report which was made by the defendant at the police station, about the abduction of the plaintiff has been illegally received in evidence. It is urged by the learned counsel in the first place that that report is not a public document and could not have been proved by a certified copy. Here, the learned counsel is clearly wrong. It is a report entered in a register kept in the police station under section 155 of the Criminal Procedure Code in which reports of non-cognizable offences are recorded. It is a public document because it is an act of a public officer of the executive branch of the Government. The document is relevant under section 35 of the Evidence Act, and it is a public document within the meaning of section 74.
Another objection taken is that the production of the certified copy does not prove the identity of the person who made the report. There is however evidence aliunde to prove that fact."
' The learned Additional District Judge contrary to the statement of law in PLD 1956 Lah. 293 omitted Exh.A.5/1 from his consideration. Petitioners, were entitled to the opinion of the Court regarding the admission made in the F.I.R. Exh.A.5/1 and its legal results. Learned counsel for the respondents contended that even if this document had been considered by the Court, result would have been not materially different. Admission at the most showed that Abdul Malik was the owner of the property in dispute from whom Abdul Hameed had purchased it. Omission from consideration, therefore, has not prejudiced the petitioners in any manner. With this part of the argument, I do not find myself in agreement. Rent Controller, on cumulative assessment of the entire evidence including the contents of the F.I.R. found in favour of the writ petitioners. If copy of the F.I.R. had not been excluded from consideration by the learned Additional District Judge the result was a matter of guess. Precisely, speaking if the contents of the F.I.R. had been considered alongwith the other evidence, the result may have been different from the one arrived at in the impugned order by the learned Additional District Judge. The question then arises whether omission to consider a piece of evidence havinig bearing on the decision, lays the case open for interference in constitutional jurisdiction. In more than one decision, this Court has observed that in such like situations, interference in contitutional jurisdiction is apposite. In Saleh Muhammad v.
Muhammad Ros and others P I. 1) 1962 (W.P.) Lah. 68, a Bench decision, this Court observed:- "Occasion for exercise of writ jurisdiction with a view to setting aside finding on questions of fact can arise only on very limited grounds. The circumstances in which a finding of fact given by a tribunal of exclusive jurisdiction in a matter may be rendered ineffective by the High Court in the exercise of its writ jurisdic tion would be either that the finding has been given on the basis of no evidence at all or the evidence has been so completely misread that the finding cannot be based on evidence."
' In Sardar Sher Muhammad v. Rao Bashir Ali Khan and another PLD 1962 (W.P.) Lah. 172 a decision by Shabbir Ahmad and Anwarul Haq. ,JJ. , the Court observed:- "A writ of certiorari can issue only on a very limited ground and though it is undeniable that because of the supervisory power vested in it the High Court may quash the orders of any other tribunal judicial or quasi-judicial, if the impugned order is without jurisdiction or is based on no evidence at all or the evidence has been misread yet the jurisdiction though supervisory, cannot be altered into appellate jurisdiction. It is open to an appellate Court to come to the conclusion that though the inferior tribunal had given a finding on wrong assumption, the finding would have been precisely the same if the assumption had been correctly made but it is not within the province of a Court called upon to exercise writ jurisdiction to say that the material on the record even after excluding the material which was wrongly taken into consideration, was sufficient for the finding that was given."
' Side note (b) of the aforesaid report reads:- "If a tribunal of special jurisdiction has taken into consideration a matter which could not at all be taken into consideration then occasion for exercise of writ jurisdiction arises and the order of such tribunal can be sought to be declared inoperative by a writ petition."
' In yet another case, N.M. Khan and another v. Chief Settlement & Rehabilitation Commissioner Pakistan and another PLD 1962 (W.P.) Lah. 468, late Shabbir Ahmad, Actg. C.J. as his Lordship then was, observed:- "Ordinarily a Court called upon to issue a writ has to accept as correct the findings of fact given by a tribunal for exclusive jurisdiction. This, however, does not mean that the findings of fact given by a tribunal of exclusive jurisdiction are sacrosanct under all circumstances. If a tribunal of exclusive jurisdiction had when arriving at a finding of fact, misread the evidence, or had considered evidence, which could not have been considered at all or had failed to consider evidence, which it was bound to consider or should have considered the finding of the tribunal of exclusive jurisdiction cannot claim immunity from examination by the Court which possesses power to issue a writ against orders of tribunal of exclusive jurisdiction."
' Court of appeal in view of the law laid down in PLD 1956 Lah. 293 could omit from its consideration copy of the F.I.R.A.5/1. Exclusion of this piece of evidence from consideration has affected the final conclusion arrived at by the Court below. Rent Controller had rightly considered this piece of evidence brought on record in accordance with law. Looking at the matter from this angle, I am of the opinion that the learned Court below had committed an error of law apparent on the face of the record in excluding the copy of the F.I.R. containing certain admissions from its consideration. This error has opened the doors for interference in constitutional jurisdiction. Appeal accordingly has not been disposed of in accordance with law.
4. In the result of the aforesaid discussion, writ petition is allowed, impugned order dated 18-4-1984 passed by the learned Additional District Judge, Gujrat is set aside and declared to have been made without lawful authority. The result is that the appeal filed by the respondents, shall be deemed to be pending requiring decision on merits. I am told that the learned Additional District Judge, who decided the appeal has since been transferred from Gujrat. Case is remitted to the learned .District Judge Gujrat for decision of the appeal afresh in accordance with law after affording opportunityof hearing to the parties concerned. No order as to costs.