1. ' MUHAMMAD AFZAL ZULLAH, CJ.---This appeal through leave of Court is directed against the dismissal by the High Court of appellant's Constitutional Writ Petition which had arisen out of a land dispute case. Leave to appeal was granted to examine the same point which was involved in C.P.
2. Nos.262-P to 263-P of 1983 and C.P. 15-R of 1984. The land ownership dispute had earlier been finally resolved by the Chairman Dir, Swat and Chitral Land Disputes Tribunal.
3. ' The brief facts given by the learned counsel for the appellant are that the suit land measuring 1 Torah is in village Jabbar, District Dir. As distinguished from Chitral where according to him a presumption could be raised that all land belong to the Ruler, in regard to Dir and Swat there was no such presumption, land could belong to individuals in proper proprietorship concept. In this case the one Torah disputed land belonged to Sambali Khan an ancestor of the appellant. It was forcibly seized by the Ruler who, distributed it amongst the state servants from time to time and ultimately to the contesting respondents side without any justification. The appellant claimed restoration by an application in 1%7. Neither the successor of the Ruler nor the contesting respondents produced any record to the contrary. The matter came before the Inquiry Commission, it was held to be state property and was so declared by notification dated 15-9-1972.
4. A revision and then the writ petition having failed, leave to appeal was granted as noted above.
5. ' We have heard both the learned counsel at length. Mr. Muhammad Sardar Khan brought to our notice that the other appeal arising out of the petition with reference to which leave was granted in this case in which leave was granted together with another appeal to examine and determine some improved method of land dispute resolution of the areas like the one involved in this case have been dismissed by this Court. It was visualised at one stage that a third effect at legislation which might satisfy the people involved in these disputes, could be a wayout, because it has been generally agreed that a large number of litigants were not satisfied with the machinery invoked and provided from time to time.
6. ' The dismissal of said appeals notwithstanding, learned counsel for the appellant argued that they were decided on the facts and circumstances thereof and the decisions of the High Court therein were upheld in the context thereof. He therefore, further argued that this appeal should also be heard and decided on its own merits. The other side welcomed this suggestion and it is with this purpose that we have heard it at length.
7. ' Two questions arise on merits; One whether Sambali Khan was ever the owner of the suit land; if so whether its having gone to a widow named Mst. Zeeno, as stated by the learned counsel for the appellant, as a limited estate, would make any difference. Secondly if it belonged to Sambali Khan also, it could revert back from Mst. Zeeno to the heirs of Sambli Khan on account of her being a limited owner, she also being from the family of Sambali Khan could or had become a source of direct devolution finally towards the appellant, was there any impediment for the appellant to inherit it.
8. As has already been mentioned there is always a feeling in such like cases that the concrete evidence for giving final clear findings was neither before lower authorities nor before the High Court. Mostly the decisions are rendered on the high probability principle and there is nothing wrong in doing so provided the material available was in the circumstances before the forum concerned and or it was noticed in the orders concerned. Even under the Evidence Act this recourse is possible where the "evidence" as defined in the said Act is not forthcoming. And judgment regarding "proof' of a certain fact could be rendered "if after considering the "matters" before it, the Court considers its existence so probable that a prudent man ought, under the circumstances of the partkular case, to act upon the supposition that it exists."
9. See the cases of The State v. Habib Rehman (PLD 1983 Supreme Court 286), Said Wali v. Yaqoot Khan (PLD 1983 Supreme Court 440) and Muhammad Arshad v. The State (1992 SCM R 1187).
10. The word evidence has been defined but the word "matters" which could include evidence as defined as well as other matters did not fall strictly within the scope of evidence. In the cases like the present one the matters would include that material as well which would fall within the scope of mixed 8 facts and law. Amongst others, they will also include documents, presumptions, statements, which might otherwise be not included in the strict scope of evidence. The selection of word "matters" instead of evidence when defining proof, by the legislature in its wisdom, was perhaps to decide a large number of cases of this nature wherein evidence in stricto senso would not be available.
11. ' Applying the above mode of assessment of material in this case, we proceed to answer the questions arising therein.
12. True there is no direct evidence nor any has been relied upon by the learned counsel for the appellant that Sambali Khan was the real owner of the suit land and that the Ruler had not any superior right therein. Yet one can easily visualise a strong probability that a prudent man in the circumstances of this case, on account of conduct of the parties, could act on the supposition that the exclusive properietary right in the property did belong to Sambali Khan -- on the basis of the conduct of the parties themselves. It is admitted position that all concerned except for later improvements, afterthought and embroidery of contradictory nature, for a very long time (for some generations) admitted it so. For example, even when submitting the written statement in the High Court it was admitted from the respondents side that Sambali Khan was murdered because of the ownership of this property. And the question of inheritance regarding the same property was the underlying motive for the murder. This fact, it can be safely presumed remained a common ground between the parties for a very long time and perhaps from generation to generation accepted it.
13. This mode of proof is adoptable in the Islamic dispensation also, even if not in any other. When there is such a vacuum on a question of law left by' statutory silence, the prevailing mode having full Constitutional support, would be that of Islamic common law. See Muhammad Bashir v. The State (PLD 1982 SC 139).
14. The same principle and mode would be attracted to another element of material in this case namely; a unanimous Jirga resolution passed by the elders of the area representing the views of hundreds may thousands of people passed in 1975, that the suit land belonged to Sambali Khan. In Islamic common law such a mode of proof is adoptable in absence of any direct I evidence; though generally speaking, it would fall within the mischief of so called hearsay principle.
15. ' As already noticed, in Dir private ownership was not an impossibility--statement of the learned counsel for the appellant in this behalf has not been refuted. There is no other impediment for us to proceed on the supposition that the suit property did not belong to Sambali Khan.
16. Next question is the nature of the estate held by Mst. Zeeno during her lifetime, in the suit property.
17. There is no statutory command that the customary law relating to widow's life Estate was to be applied in the area concerned at the relevant time. That being so, the vacuum in the statutory dispensation as well, will have to be filled in by the Islamic common law under which it would be assumed that she owned it without any incumbrance of life estate and there was nothing wrong in her passing it to the progeny of the appellant through the devolution in succession or otherwise.
18. This supposition also gets strengthened by the additional fact that notwithstanding her intervention, in the other elements of proof discussed above, the suit property has to be found to the of Sambali Khan, which could be transmitted by inheritance to the appellant.
19. ' The next question is whether the Ruler could confiscate the property in any manner other than lawful on the mere assumption that he was a "Ruler" as distinguished from "ownership". This again can be decided on the basis of Islamic common law on account of void having been left by the absence of any statutory command on this issue. In Islamic law the Ruler as well as the citizens the Ruled can own and enjoy property as a personal attribute of freedom and manifestation of Human Rights. To own property is well recognized basic right of the individual in an Islamic State. See the well-known case of Qazalbash Waqf v. Chief Land Commissioner, Punjab, Lahore (PLD 1990 Supreme Court 99). Hence, the confiscation so-called relied upon from the other side, by the Ruler of the State by itself was unconstitutional besides being unlawful; unless, there was some other legal permission/command other than the so-called mere right of the Ruler to confiscate, even if in the sense of acquisition law.
20. ' The last question relates to the existence or otherwise of any legal justification for confiscation or acquisition of the suit property which as held above belonged to Sambali Khan and after him to his heirs and ultimately to the appellant.
21. ' Learned counsel for the appellant did assert that there was no such justification but the material we have relied upon for coming to the conclusion that it belonged to Sambali Khan also furnishes enough "matter/proof' to act on the supposition like a prudent man that there was a legal justification for so-called confiscation. While admittedly that it belonged to Sambali Khan, and could form a subject of inheritance on his death, the devolution got diverted on account of his murder by his own successor through whom the appellant seeks inheritance.
22. ' The statement/admission from the respondents side has to be read as a whole. The attempt to avoid the consequence of such a factual supposition on the ground that there was no law in the Dir State justifying such confiscation must fail. Indeed the learned counsel for the appellant is right that there was no such statutory command at least none has been relied upon from any side before us.
23. In this situation again it is Constitutional compulsion in Pakistan and a command for all the Courts, to fill this void by the Islamic common law I dispensation. It is agreed by the learned counsel for the appellant that under the Islamic Law of inheritance an heir loses the right to inherit, if found guilty of having murdered the person who is the source of inheritance. See the case of Aminullah v. The State (PLD 1982 SC 429 at page 443).
24. ' The appellant in this case, therefore having succeeded on all other issues would fail to get the property as heir of Sambali Khan. In this view of the matter the appeal fails and is dismissed.
25. However, on account of difficult and complicated questions of Constitutional and other law involved therein there shall be no order as to costs.