1. ' BASHARAT AHMAD SHAIKH, J.---This appeal, by leave of the Court, challenges the order passed by a learned Single Judge in the High Court, whereby a writ petition filed by respondent Tufail Hussain was accepted and order passed by the learned Custodian of Evacuee Property on 1st of March, 1992, cancelling the proprietary rights granted earlier to Tufail Hussain to the extent of 3 Marlas of land, was set aside.
2. ' The facts of the case are that appellant Muhammad Anwar was allottee of evacuee land under Survey No,177 in Village Dhangrote in Tehsil Kotli. As admitted by him in the written statement filed in reply to the writ petition, Tufail Hussain and Muhammad Anwar entered into an agreement as a consequence of which possession of the disputed land was handed over to Tufail Hussain respondent by appellant Muhammad Anwar. Consequently Tufail Hussain constructed a residential house on the land mentioned above. However, the position adopted by Muhammad Anwar is that the agreement was in respect of one Kanal while respondent Tufail Hussain claims that it was for 1 Kanal, 3 Marlas. Muhammad Anwar executed an affidavit on 16th of May, 1984 stating that he had given the land in dispute to Tufail Hussain for constructing a house due to personal relations with him. It is stated in the affidavit he would have no objection if the allotment of the land is cancelled from his name and allotment is made in favour of Tufail Hussain. On 3rd of June, 1984 Muhammad Anwar made a statement before the Assistant Rehabilitation Commissioner in which he reiterated the contents of the affidavit mentioned above. Consequently the allotment of Muhammad Anwar was cancelled and a fresh allotment in favour of Tufail Hussain was made and an allotment permit was issued on 19th of May, 1984. In the affidavit, the statement made before the Assistant Rehabilitation Commissioner as well as the report submitted by Assistant Rehabilitation to Deputy Rehabilitation Commissioner the measurement of the land is incorporated as 1 Kanal 3, Maralas. Subsequently Proprietary Rights Transfer Order was issued in the name of respondent Tufail Hussain on 22nd of November, 1986 in respect of 1 Kanal, 3 Maralas of land. On 17th of April, 1988, Muhammad Anwar filed a review petition before the Custodian of Evacuee Property who, in his order announced on 1st of March, 1992, cancelled the Proprietary Rights Transfer Order to the extent of 3 Marlas. The learned Custodian saw the original files and found that Muhammad Anwar made a statement on 3rd of June, 1984 that land under Survey No,177, measuring 1 Kanal, 3 Marlas was allotted to him and stated that he would have no objection if fresh allotment is made in favour of Tufail Hussain by cancelling the one subsisting in his own name. He noted that although recommendations made by the Assistant Rehabilitation Commissioner were in accordance with the statement of Muhammad Anwar but in the order ultimately passed by Rehabilitation Commissioner on 19th of June, 1985 granting permission for cancellation and re-allotment was only in respect of land measuring 1 Kanal and not 1 Kanal, 3 Marlas. It was further noted by the learned Custodian that after obtaining permission of the Rehabilitation Commissioner the Assistant Rehabilitation Commissioner issued a chit of 1 Kanal and 3 Marlas. The learned Custodian held that the order of allotment passed by the Assistant Rehabilitation Commissioner was illegal to the extent of 3 Marlas and cancelled it.
3. ' When the order of the Custodian was challenged before the High Court in writ petition, it was argued before the High Court that in the affidavit of Muhammad Anwar and his statement before the Rehabilitation Commissioner figure denoting 3 Marlas was interpolated. The learned Judge in the. High Court rejected this plea on the ground that no proof had been brought forward in support of the allegation of forgery. It was then contended before the High Court that in the order of the Rehabilitation Commissioner the permission for cancellation was granted in respect of 1 Kanal which proved the factum of forgery. This plea was also rejected by the High Court by observing that the order of the Rehabilitation Commissioner by which he is said to have granted permission for 1 Kanal had not been brought on the record of the High Court.
4. ' The learned counsel for the appellant, Raja Muhammad Siddique Khan, submitted that the High Court fell in error in basing its conclusion mentioned above on the ground that the order of the Rehabilitation Commissioner had not been brought on record. He submitted that the order of the Rehabilitation Commissioner had been reproduced in the order of the learned astodian of Evacuee Property which was impugned before the High Court. It was further contended by the learned counsel that in para. 5 of the writ petition it had been averred that the Rehabilitation Commissioner accorded sanction in respect of land 1 Kanal, 3 Marlas which stands falsified by the order of the Rehabilitation Commissioner reproduced in the order of the learned Custodian. The learned counsel submitted that, in any case, the permission for cancellation was for one Kanal and the allotment permit for 1 Kanal, 3 Marlas issued in favour of the respondent was illegal.
5. ' In reply Mr. Muhammad Azam Khan, the learned counsel for the respondent, vehemently urged that the allegation of interpolation is a disputed question of fact which cannot be decided in a writ petition. He also contended that the High Court had correctly expressed the view that no evidence had been brought on the record in support of the allegation of forgery. He submitted that in the order of the learned Custodian of Evacuee Property it had been stated that in the statement made by Muhammad Anwar measurement of land was incorporated as 1 Kanal, 3 Marlas. In the statement made by Muhammad Anwar before the Assistant Rehabilitation Commissioner and in the recommendations made by Assistant Commissioner, Kotli the same measurement is given. It was contended by the learned counsel that it clearly eliminated any chance of forgery. Mr. Muhammad Azam Khan also submitted that in absence of original order passed by the Rehabilitation Commissioner it could not be concluded that he had not given permission for cancellation of 1 Kanal and 3 Marlas.
6. In our view the view taken by the learned Judge in the High Court that forgery had not been proved is plainly correct. It was for the appellant to prove forgery but no proof has been produced to prove it. Apart from that, measurement of 1 Kanal, 3 Marlas is mentioned in the affidavit sworn by appellant Muhammad Anwar and the statement made by the appellant before the Assistant Rehabilitation Commissioner. Then the same measurement is given in the recommendatory note submitted by the Assistant Rehabilitation Commissioner to the Deputy Rehabilitation Commissioner. In this situation interpolation stands falsified. It may also be added that in the order of the learned Custodian impugned before the High Court there is no mention of any allegation of forgery.
7. ' It is correct that in the order of the learned Custodian he reproduced the order passed by the Rehabilitation Commissioner wherein he gave permission in respect of 1 Kanal but we note that while doing so the Rehabilitation Commissioner also wrote that it was being done in accordance with the recommendation of the Deputy Rehabilitation Commissioner. The recommendations of the Deputy Rehabilitation Commissioner as well as Assistant Rehabilitation Commissioner are part of the High Court file. A perusal of the recommendations shows that the Assistant Rehabilitation Commissioner specifically made recommendation in respect of 1 Kanal and 3 Marlas and the Deputy Rehabilitation Commissioner owned the recommendations made by the Assistant Rehabilitation Commissioner. The measurement of the land is mentioned in words and figures separately at different places. As already noted the allotment permit in favour of Tufail Hussain issued on 19th of May, 1984 is also in respect of 1 Kanal 3 Marlas. In these circumstances how was it that the Rehabilitation Commissioner granted approval in respect of 1 Kanal is a matter which is open to different interpretations. It may have been a deliberate act but for that there is no reason on the record. When allottee's statement was for 1 Kanal, 3 Marlas and the recommendation was also for the same there is no reason for Rehabilitation Commissioner to withhold his approval in respect of 3 Marlas. On the other hand it could be a mistake which seems to be probable, but in exercise of writ jurisdiction questions of fact cannot be decided on conjectures and surmises.
8. Therefore, we find weight in the argument that the original order should have been placed on the record for proper adjudication of the matter. In its absence no clear cut finding can be given. Be that as it may, in our opinion, in these circumstances the learned Custodian fell in error in passing the order impugned before the High Court as will be presently seen.
9. ' The power of review vesting in the learned Custodian of Evacuee Property is contained in subsection (6) of section 43 of The Pakistan (Administration of. Evacuee Property) Act, 1957, which is to the following effect:-- "(6) The Custodian or Additional Custodian may on application made tohim in this behalf within the prescribed period or of his own motion at any time and after giving notice to the parties concerned and the Rehabilitation Authority, review his own order or an order passed by his predecessor-in-office on any ground whatsoever as the justice of the case may require: Provided .............................................
10. It is plainly the requirement of the provision reproduced above that power of review can be exercised only if the justice of the case so requires. Where a statute confers discretionary power for doing justice the repository of the power, before exercising it, must be satisfied that order sought to be set aside had occasioned some injustice. In this context we may profitably refer to a judgment of the Supreme Court of Pakistan in Raunaq Ali v. Chief Settlement Commissioner (PLD 1973 SC 236) wherein, dealing with analogous discretionary power vested in the High Court, an order passed without jurisdiction was not set aside when it was found that it did not work any injustice by making the following observations:-- "An order in the nature of a writ of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality, the extraordinary jurisdiction ought not to be allowed to be invoked."
11. In our view justice of the case did not warrant the order passed by the learned Custodian of Evacuee Property. Apart from the facts noted above, we may point out that it is admitted in the written statement filed in the High Court by appellant Muhammad Anwar that a residential house has been constructed by Tufail Hussain on the land in dispute. In fact in the affidavit sworn by appellant Muhammad Anwar on 19th of May, 1984, he deposed that he was giving land measuring 1 Kanal, 3 Maralas to Tufail Hussain for the purpose of constructing a house. While making the statement before the Assistant Rehabilitation Commissioner on 3rd of June 1984 he stated that land measuring 1 Kanal, 3 Maralas is already in possession of Tufail Hussain and,that he had collected building material for raising a boundary wall. Alongwith his written statement filed in the High Court an affidavit of one Sikandar Hayat son of Bagh Hussain was filed. In that affidavit there is a deposition that Tufail Hussain was in possession of 1 Kanal, 3 Marlas of land. Since this affidavit was filed by Muhammad Anwar himself he is bound by its contents. It follows that even before formal allotment the disputed land was given in possession of the respondent by Muhammad Anwar. Subsequently an allotment permit was also issued. On the basis of these proceedings and with Muhammad Anwar's consent Tufail Hussain has constructed a house on the area measuring 1 Kanal, 3 Marlas. The only negative factor is the confusing fact pointed out by the learned Custodian of Evacuee Property that the Rehabilitation Commissioner accorded permission in respect of 1 Kanal. In our considered view justice of the case did not warrant that the learned Custodian of Evacuee Property should have exercised his revi'w powers after many years on 1st of March, 1992.
12. Justice of the case demanded that Muhammad Anwar should not be allowed to turn round and take advantage of an ambiguity after having completed all the legal formalities as far as he himself was concerned and that too after having allowed Tufail Hussain to construct a house. We are, therefore, clearly of the view that the exercise of power in the present case by the learned Custodian is not covered by subsection (6) reproduced above.
13. ' As an upshot of the foregoing discussion we find no force in the appeal and, therefore, order its dismissal with costs.