1. ' USMAN ALI SHAH, .J.--Rozi Khan petitioner seeks leave to appeal against the judgment and order of the Peshawar High Court dated 29-1-1989, wherein Writ Petition of Taj Muhammad Khan respondent No,1 against the orders of the respondents Nos. 2-4 was allowed vide impugned judgment.
2. ' The case of the petitioner in nut-shell is that he had brought a suit for damages of Rs,2,600 against the respondent No, 1, before the Assistant Commissioner, Alpuri, exercising the powers of Deputy Commissioner under the Provincially Administered Tribal Areas Regulation No, II of 1975, alleging that the said respondent had cut a tree by the side of a water course belonging to the petitioner, due to which the water channel was closed and caused damage to the wheat crop worth Rs,2,400 of the petitioner plus Rs,200 as price of the tree. The respondent No, 1 failed to appear before the Court on 16-9-1982 and the case was decided ex parte against him. Under section 5 of the Regulation a Tribunal under the Chairmanship of Tehsildar Alpuri alongwith two members was constituted to give its finding on the issues specified in the order. On the application of respondent No, 1 the file was sent back to the Assistant Commissioner who asked the respondent No, 1 to submit his written statement. In his written statement the respondent No, 1 raised several legal and factual pleas and totally denied the claim of the petitioner. He claimed that the tree in question actually belonged to him and cut the same but alleged that the petitioner took it away during night time. He also stated that no water channel was passing through his lands for irrigating the lands of the petitioner. The Assistant Commissioner sent the file back to the said Tribunal which after recording the evidence of the parties submitted its award to the Assistant Commissioner on 8-7-1983. Respondent No,1 filed an application before the Assistant Commissioner for re- constitution of another Tribunal, on which he sent back the file to the existing Tribunal for reconsideration of the matter in the light of his observation made in the order. The Tribunal after obtaining the statement of one Muhammad Zaman, submitted its award to the Assistant Commissioner, who vide his order dated 15-8-1984 decreed the suit of the petitioner against the respondent No,1.
3. ' Both the appeal and revision of respondent No,1 before the respondents Nos. 3 and 2 also failed on 28-7-1987 and 8-2-1988 respectively. Being aggrieved the respondent No,1 filed Writ Petition before the Peshawar High Court. A learned Division Bench of the High Court which heard the writ petition, vide its judgment dated 29-1-1989 concluded as under:- "We have also gone through the file of the lower Court wherefrom it is evident that the members of the Tribunal did not take interest in the matter and generally remained absent. Similarly, the appellate and revisional Courts also failed to judicially determine the grievance of the petitioner raised in the grounds of appeal and revision. We are, therefore, of the view that the forums below acted illegally and with mateial irregularity in exercise of their jurisdiction hence the orders of all the forums below are declared illegal, without lawful authority and of no legal effect. Consequently, the case is sent back to the Deputy Commissioner for appointment of a fresh Tribunal to whom reference be made for giving their finding on the issues arising out of the pleadings of the parties in accordance with law."
4. ' We have heard the learned counsel for the petitioner and gone through the findings of the Courts below. The learned counsel contended that the learned High Court in arriving at the impugned conclusion not only acted in disregard of its lawful authority but also exceeded its Constitutional jurisdiction in remanding the case back to the Tribunal for deciding afresh. He further urged that this was an old dispute which has already taken a considerably long time in completion of the trial before the Tribunal, the Chairman of which inspected the spot and given its award in favour of the petitioner.
5. ' A perusal of the record will show that in the remand order dated 26-10-1983, it was specifically observed that the ownership of the parties could be ascertained from the revenue record but no efforts were made on the part of the Tribunal in this regard. The respondent No,1 in his written statement raised both legal and factual pleas and totally denied the claim of the petitioner. He had stated that the tree in dispute was cut by him because it actually belonged to him and as far as the water course is concerend he said that no water channel was passing through his land towards the lands of the petitioner. This fact is the only bone of contention between the parties which could only be legally ascertained from the revenue record which was not touched by the said Tribunal but gave its award on personal knowledge.
6. Under the circumstances we are of the opinion that the learned High Court while exercising its Constitutional jurisdiction has rightly remanded the case to the Deputy Commissioner for re- appointment of a fresh Tribunal to decide the case in accordance with law. The contention raised by the learned counsel for the petitioner has no substance. This petition is, therefore, dismissed.
7. 1989 SCMR 1645 [Shariat Appellate Bench] {{URDU TEXT}} Offence of Zina (Enforcement of Hudood) Ordinance (Vi[ of 1979)-- S. 10(2)-Constitution of Pakistan (1973), Art. 203-D-- {{URDU TEXT}} 1989 SCMR 1647 [Shariat Appellate Bench) {{URDU TEXT}} Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)- -- S. 10(2)-Constitution of Pakistan (1973), Art. 203-D - {{URDU TEXT}} {{URDU TEXT}} 1989 SCMR 1649 (Shariat Appellate Bench] {{URDU TEXT}} Offence of Zina (Enforcement of Hudood) Ordinance (VII of I S. 10(2)-Penal Code (XLV of 1860), S. 362-Criminal Procedure Code (V of 1898), Ss. 265 & 403-Constitution of Pakistan (1973), S. 203-D- {{URDU TEXT}} 1989 SCMR 1652 [Shariat Appellate Bench] {{URDU TEXT}} Prohibition (Enforcement of Hadd) Order (4 of 1979)- Ss. 3 & 4-Constitution of Pakistan (1973), Art. 203-D{{URDU TEXT}}