1. MUHAMMAD AFZAL ZULLAH, CJ.--This appeal through leave of the Court is directed against the acceptance by the Lahore High Court an L.PA. Filed by the respondents. It had arisen out of a land settlement case within the jurisdiction of Border Area Allotment Committee.
2. The facts and points noted for examination in the leave grant order are as under:-- "Land measuring 124 Kanals in village Lakhoki, Tehsil and District Lahore was allotted to Muhammad Sharif respondent. The allotment in his favour was subsequently reconfirmed on 19th March, 1962 when his eligibility was scrutinised after the enforcement of the West Pakistan, Border Area Regulation, 1959, by the Border Area Allotment Committee. Thereafter respondent Muhammad Sharif paid price of the land in question on 2nd July, 1964 and mutation in respect of the same was sanctioned on 28th March, 1968 by the Revenue authorities. At this stage the present petitioner moved an application before the Border Area Allotment Committee to the effect that respondent Muhammad Sharif was an imposter and that in fact he was a local and not at all a displaced person. After inquiring into the matter the Committee formed a view vide its order dated 21st May, 1969 that the respondent was in fact a local and an imposter. Consequently it cancelled the land standing in his name and allotted it to the present petitioner the informer. Feeling aggrieved Muhammad Sharif respondent filed Writ Petition No.462-R of 1968 in which he challenged the validity of the Committee's order. His main ground was that having held scrutiny twice before the Border Area Allotment Committee was not competent to hold another scrutiny or inquiry and to review its previous order. The writ petition was dismissed by a learned Single Judge of the Lahore High Court Lahore on 27th May, 1969. Thereupon Muhammad Sharif respondent challenged the aforesaid order in L.P.A. No.256 of 1969 which was accepted on 11th October, 1980 as stated above.
3. It was argued by the learned counsel for the petitioner that it had been admitted as a fact that Muhammad Sharif respondent was an imposter and a local and therefore was not entitled to the allotment of the land in question which he had obtained through fraud. Reliance was placed by the learned counsel on PLD 1965 SC 459 (Khadim Mohyuddin and other v. Rehmat Ali Nagra and another) as well as 1986 SCMR 529 (Province of Punjab and others v. Member (Colonies), Board of Revenue, Punjab and others)."
4. Leave was granted to consider the validity of the impugned order passed by the High Court.
5. The main reason, for reversal by the L.P.A. Bench of a finding of fact rendered by a learned Single Judge of the High Court who had upheld the plea raised by the appellant; which prevailed with the learned Judges of the Division Bench indeed involved a question of interpretation of law.
6. As argued by the learned counsel for the appellant there were three main items of evidence which having gone against Muhammad Sharif contesting respondent a finding of fact was rendered against him. Two of them, it was held in the impugned judgment, could not be used against him as they were held to be inadmissible. The treatment and reasoning of this question in the impugned judgment is as follows:----- .
7. "In appeal the learned counsel for the appellant drew our attention to the rule laid down by this Court in Das Dewan v. Nazir Beg. (PLD 1970 Lahore 790), that while making an inquiry the Border Allotment Committee would come within the definition of the Court as given in section 3 of the Evidence Act and consequently the question of admissibility of evidence produced during the inquiry before it will have to be decided with reference to the Evidence Act. Under para. 14 of the Regulation the Committee has been vested with all the powers of a Civil Court trying a suit under the Code of Civil Procedure in respect of summoning and enforcing the attendance of any person and examining him on oath or affirmation, compelling the discovery and production of any document and requisitioning of any public record from any office. Such being the case we would subscribe to the view expressed in the precedent case that admissibility of evidence adduced before the Committee is to be regulated by the provisions of the Evidence Act ------------------- ------------------------------------------------------------.
8. This piece of evidence on which the Committee relied to adjudge the appellant as a local resident of village Nakhnal was clearly inadmissible under the provisions of the Evidence Act and as such could not have been formed basis of decision by the Committee .------------------------------ --------------------------------------- The finding of the Committee, based as it is on inadmissible evidence that has materially affected its decision, which is highly prejudicial to the interests of the appellant, cannot stand the test of scrutiny by this Court in writ jurisdiction. Judged in the light of the principles of law of evidence the material placed before the Committee could not lead to the conclusion that the appellant was a local resident of Nakhnal. Consequently the Committee's finding has per force to be disturbed."
9. In the case of Das Dewan relied upon by the L.PA. Bench in the High Court no doubt it was held that the Evidence Act applied to the proceedings before the Border Area Committee. The reasonsing was that "according to para. 14 of the West Pakistan Border Area Regulation, 1959 while holding an inquiry the Border Area Committee is under obligation to act judicially in the matter of summoning and enforcing the attendance of witnesses and examining them on Oath or affirmation. Paragraph 14 clearly gives legal authority to the Border Committee to take evidence. Such being the case it seemed to the learned Judge deciding the said case "that while holding an inquiry the Border Committee would come within the definition of the term "Court" as given in section 3 of the Evidence Act and consequently the question of the admissibility of evidence produced during an inquiry before the Border Committee will have to be decided with reference to Evidence Act". It was also observed that para. 14 of the Border Area Regulation prescribed that while holding an inquiry the Border Area Committee would have all the powers of a Civil Court trying a suit, and particular mention is made of summoning and enforcing the attendance of witnesses and of the discovery and production documents. Accordingly, it was ruled that the Border Area Committee is a person legally authorised to take evidence in the manner permitted to a Civil Court trying a suit under the provisions of the Code of Civil Procedure, a position which would immediately bring the Border Committee within the definition of the term "Court" as contained in section 3 of the Evidence Act.
10. The fact that Paragraph 14 of the Regulation specially mentions the discovery and production of documents in the same manner as is permissible to a Civil Court trying a suit, was also noticed and from all these circumstances an intention of the law-maker was discovered so as to "attach formality to the inquiry conducted by the Border Area Committee".-- of course from the language used in Paragraph 14. And as the evidence concerned in the said case was not found admissible on the touchstone of the provisions contained in the Evidence Act; thus the same was held inadmissible. It is here necessary to note that another judgment of the Lahore High Court in the case of Abdul Hamid v, Malik Karam Dad and 2 others (PLD 1966 Lahore 16) was also cited on behalf of the Border Area Committee to support the contention that the mere fact that the Committee had been given all the powers of a Civil Court trying a suit under the Code of Civil Procedure, did not mean that automatically the provisions of Evidence Act would be attracted. But the said judgment was distinguished on the ground that the Tribunal constituted under the Electoral College Act, 1964 in the case of K Abdul Hamid "was empowered to hold a summary inquiry and there was no specific provision authorising it to summon witnesses"; therefore the Tribunal was purely administrative tribunal not bound by the technicalities of Evidence Act. After noting the above and other distinguishing features in the case of Abdul Hamid it was reiterated in the judgment of Das Dewan that because Border Area Committee was legally authorised to take evidence in the manner permitted to a Civil Court trying a suit under the Code of Civil Procedure, provisions of Evidence Act were attracted to the proceedings before the Border Committee.
11. Learned counsel for the respondents has adopted the entire reasoning in the case of Das pewan.
12. Para. 14 of the relevant Regulation referred to above reads as follows:-- "14. (a) For the purpose of holding any enquiry or scrutinizing any allotment, a committee shall have the same powers as a Civil Court trying a suit under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of --
(i) summoning and enforcing the attendance of any person and examining him on oath or affirmation;
(ii) compelling the discovery and production of any document;
(iii) requisitioning any public record from any office; and
(iv) No legal practitioner shall appear on behalf of any person in any proceedings before the committee."
13. It is not out of place to note that similar language as that of Paragraph 14 has been used in several other Statutes whereunder admittedly it has been ruled almost consistently by the superior Courts that remaining provisions of Civil Procedure Code, other than those mentioned therein and the Evidence Act, did not apply to the proceedings before the Tribunal concerned.
14. In the well-known case of Khadim Mohyuddin v. Rehmat Ali (PLD 1965 Supreme Court 459) despite the fact that the Rent Controller had the power of sommoning and enforcing the attendance of witnesses and compelling production of evidence as are vested in a Court under the Code of Civil Procedure" and further the orders of the Controller were executable "in the same manner as decrees of the Civil Court", it was held that notwithstanding the fact that the Controller was required by the law to hold an inquiry, the question nature of such inquiry was left to him. In other words it was further held that in such inquiries the parties have no right to insist on production of such evidence as they desire to adduce in support of their case. "In short these inquiries may be such as are conducted by an executive officer". It was further held that even if by the use of word "satisfy" a need for inquiry is imported, yet it would not bind the Rent Controller by any particular procedure to be followed in that inquiry. The question of judicial character of the Tribunal was also examined and it was held that although some of the functions of the Controller are judicial in character yet he was not a Court and at the most it may be said that he acts in quasi-judicial capacity.
15. In most of the cases where Evidence Act and/or Civil Procedure Code are not in terms applied to the proceedings before a special Tribunal, the intention of the law-makers goes only to the extent of clothing the authority with a quasi-judicial capacity and not as a Court. It is correct that in some of the laws the special Tribunal concerned is by specific provision in that behalf, conferred certain powers which are essentially of a Civil Court or a Criminal Court. But not in all such laws.
16. The Displaced Persons (Compensation and Rehabilitation) Act by section 23, conferred similar power on every officer appointed under the Act--the same powers as are vested in this case in a Civil Court, for summoning the witnesses and performing many other functions tabulated therein; and further the officers concerned were deemed also to have the same powers as are vested in Civil Court, when trying a suit. Yet neither the Evidence Act nor Civil Procedure Code have ever been held to be applicable to the proceedings before the Settlement Officers nor have they ever been treated as Courts. Their position as executive officers and/or quasi-judicial authorities need not be discussed in this case. This is so; notwithstanding the fact that in addition to the extent to which the Paragraph 14 clothed the Border Area Committee with the powers of a Civil Court, section 23 referred to above, had specifically conferred powers of Civil Court as well as the Criminal Court on the Settlement Officers with reference to several provisions of Civil Procedure Code as well as Criminal Procedure Code and also of Pakistan Penal Code.
17. The said law is complementary to and in the same field as is the law, involved in the present case.
18. A Lahore High Court judgment in the case of Muzzaffar Hussain v. Mst. Ghulam Fatima (PLD 1976 Lahore 1226) while giving the background of these special laws dealt with Section 23 elaborately. It was held that "in the circumstances and keeping in view the background of the legislation, alongwith its various provision, it appears quite clearly that the Authorities were not bound by the strict provisions of the Evidence Act, 1872 and that it was open to them to decide claims and rights of applicants, and determine the same by all means, including, of course, by using the methods of proof under the Evidence Act, 1872, but also by other standards".
19. The following case law was also referred in that case:---- "Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others (PLD 1973 SC 236); Mian Rafi-ud-Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others (PLD 1971 SC. 252) and Sh. Ahmad Sadiq v. Chief Settlement Commissioner and other (PLD 1974 SC 368).
20. Leonard Biermans. `Workers' Union v. Second Industrial Tribunal, West Bengal and others (AIR 1962 Cal. 375); Messrs Ahmad Brothers v. Mahmoodul Hassan Khan (PLD 1965 Kar. 83); Abdul Hamid v.
21. Malik Karam Dad, (P.C.S.) Election Tribunal, Rawalpindi and 2 others (PLD 1966 Lahore 16); Muhammad Aslam Mirza v. Mst. Khurshid Begum (PLD 1972 Lahore 603); Gurmukh Singh v.
22. Commissioner of Income--tax Lahore (AIR 1944 Lah. 353); Maxwell on Interpretation of Statutes, 11th Edn., p.32; Mst. Moselle Elias v. Khawaja Ahmed Said (PLD 1959 Karachi 760); Khadim Mohy-ud-Din and another v. Ch. Rehmat Ali Nagra and another (PLD 1965 SC. 459); Said Hussain and others v.
23. Mst. Mahboob Begum and another (PLD 1970 Lahore 69); Syed Haider Raza v. Syed Imam Ali and Rehabilitation Authority (PLD 1961 Lahore 800); Atchayya and another v. Gangayya (ILR 15 Mad. 138, 47 IC 710); Hari Khemu Gawah v. The Deputy Commissioner of Police, Bombay and another (PLD 1957 SC (Ind) 90); Murli Das v. Achut Das (AIR 1924 Lahore 493); Commissioner of Sales Tax (West), Karachi v. Messrs Kruddsons Ltd. (PLD 1974 SC 180); Messrs Bengal Friends Co., Dacca v. Messrs Gour Benode Saha and Co., Calcutta and another (PLD 1969 SC 477); Farokh Homi Irani v. Nargis Farokh Irani (PLD 1963 Kar. 567); Muhammad Shafi v. Settlement and Rehabilitation Commissioner (Punjab), Lahore and another (PLD 1976 Lahore 153); Cheshire's Private International Law, 7th Edn., pp. 134 and 574); Macfarlane v. Macartney (1921) 1 Ch. D 522); Rousillon v. Rousillon (1880) 14 D 351 and Conflict of Laws by the American Law Institute, Edn. 1934, No.612, p.731 cited but not examined."
24. This Court while holding that the Settlement authorities do hold quasi---judicial proceedings, have not clothed them with the status of "Courts" so as to apply the provisions of the Evidence Act or C.P.C. To the proceedings before them except to the extent permitted/specified by the law. See Dr. Niaz Muhammad Mann v. Sh. Muhammad Ahmad (1988 SCMR 1016); Nawab Din v. Member, Board of Revenue (Settlement and Rehabilitation) Punjab, Lahore and 4 others (PLD 1979 SC 846).
25. In addition to the aforenoticed laws, this Court, in matters relating to a number of other special laws has, as a policy of practice and procedure, adopted more pragmatic and practical view on this controversy as was done in Khadim Mohy-ud-Din's case. See Salah-ud-Din Butt v. Punjab Service Tribunal (PLD 1989 SC 597)---regarding Punjab Service Tribunal Act, 1974. See also Sui Gas Transmission Co. Ltd. v. Islamic Republic of Pakistan (PLD 1959 SC (Pak.) 66) regarding a law on Industrial Disputes. Again in Muhammad Azam v. Muhammad Iqbal (PLD 1984 SC 95) the same principle was followed in cases coming under Family Courts Act. The High Courts have also by and large followed this salutary approach in the Controversy under discussion in Abdul Hamid v. Karam Dad (PLD 1966 (W.P.) Lahore 16)---Re. Electoral Law, and in Messrs Ahmad; Bros. v. Mahmoodul Hassan Khan (PLD 1965 (W.P.) Karachi 83)---Re. Workmen's Compensation Act, 1923.
26. It needs some clarification that the Courts have some times emphasized the need for following the general principles underlying the Evidence Act and the C.P.C. When the particular provision in question, even without the force of codification, is such that it commends itself to be followed as a rule of fairness and propriety ---rather than of technicality or even as a mandate of statutory nature. For example, even in a case covered by the ruling of this Court in the case of Khadim Mohyuddin, it was ruled that Section 114 of Evidence Act contained such matter and principles that even an executive or administrative or a quasi-judicial functionary would do well to invoke the terminology used therein. That will not make the Evidence Act applicable as such. The rule remains the same that its principles whether used in the same language or paraphrased p otherwise, may be utilised as rules of fairness and justice ---Salah-ud-Din case(PLD 1988 SC 221).
27. In the light of the foregoing discussion with respect we do not agree with the learned Judges of the L.P.A. Bench who rendered the impugned judgment nor with the learned Judge who decided the case of Das Dewan. The impugned judgment is set aside. The case is remanded to the High Court for fresh decision of the L.PA. On merits this time on the assumption that the Evidence Act and C.P.C.
28. As such, are not applicable, with no order as to costs.