1. ' KHILJI ARIF HUSSAIN, J.---In the petition, petitioner has impugned orders 'dated 29-9-1997 and 18- 8-1998 passed by the Chairman Evacuee Trust Board and Secretary to Government of Pakistan and Ministry of Religious Affairs respectively.
2. ' Brief facts for the purpose of deciding the petition are that premises bearing No.G2 of the building situated at Plot No.C.T.9/18 Kazi Noor Muhammad Lane Old Town Karachi comprised of only ground floor was transferred to respondent No.5 by Deputy Settlement Commissioner vide PTO No.08363 dated 20-12-1960 and PTD No.RYC-5210 dated 4-8-1965. The said property was sold by the respondent No.5 to the petitioner through a registered sale-deed dated. 28-6-1971. After purchasing the said property the petitioner applied in the office of City Survey Karachi for the grant of certified copy of extract and the same was refused on the ground that they have received a direction from the Evacuee Trust Property Board not to issue any extract in respect of the property in question. The petitioner filed an application under sections 8 and 10 of Evacuee Property (Management and Disposal) Act XIII of 1975 dated 24-9-1997' before respondent No.2. An application under sections 8/10 of Evacuee Property (Management andDisposal) Act XIII of 1975 was also filed by the respondent No.3 and petitioner filed his written statement to said application.
3. After recording the evidence and hearing the parties the respondent No.2 vide his order dated 29- 9-1997 declared that the property in question was owned by Panchayat Punjabi Daras of Karachi at the time of partition and is an Evacuee Trust Property.
4. ' Aggrieved by the said order the petitioner filed revision petition before respondent No.4 which too was dismissed on 18-8-1998.
5. ' By this Constitution petition the petitioner has assailed the said two orders.
6. ' Heard Mr. Muhammad Ali Jan, learned Advocate for the petitioner and Mil. Anwar Hussain, learned Advocate for the respondent No.l.
7. ' Mr. Muhammad Ali Jan, learned Advocate for the petitioner argued that since deed of Trust has not been produced by the respondent to establish that the property was owned by a Charitable Trust the order in the absence of the Trust Deed passed by respondents Nos.3 and 4 are liable to be set aside and declared illegal and unlawful. The learned Advocate argued that there was no material evidence on the record to establish that the property in question was owned by a Charitable Trust and in the absence of Trust Deed the finding of respondents Nos.3 and 4 declaring the said property then belongs to a trust is a finding without any evidence and the orders are liable to be set aside. Learned Advocate in support of his contention relied upon the case of Government of Pakistan v. Nizamuddin through Legal Heirs and another (1994 SCM R 1908), Divisional Evacuee Trust Committee, Karachi v. Abdullah and 2 others (1970 SCM R 503), Muhammad Yaqub v.
8. Additional Secretary (1999 M LD 2068).
9. ' On the other hand Mr. Anwar Hussain, learned Advocate for 'the respondent argued that the property was transferred in favour of the respondent No.5 on his NCH Form by the Deputy Settlement Commissioner and not against the verified evacuee claim of respondent No.5. The learned Advocate argued that the transfer order in favour of predecessor-in-interest of the petitioner cannot be validated as the same was passed after the target date and not issued bonafidely and further same does not fulfil the ingredients of section 10 of Act XIII of 1975. He argued that the property was shown as a Trust Property in the record of right. In support of his contention learned Advocate relied upon the cases of Qazi Akbar Jan and others v. The Chairman, District Evacuee Trust Committee Peshawar and others (1991 SCM R 2206) and Secretary, District Evacuee Trust Property v. Qazi Habibullah and 2 others (PLD 1991 SC 586).
10. We have taken into consideration respective arguments advanced by the learned Advocates and also gone through the record. It appears from the record of rights maintained by the City Survey Karachi that "Panchayat Punjabi Daras of Karachi" was sho'wn as owner of the property. The contention of the learned Advocate for the respondent that from perusal of Gazette Notification, record of CDC, KMC, it is established that the owner of the property in question was Panchayat Punjabi Daras of Karachi and it has been recorded in the record of that the said property is "rent free" property clearly prove the nature of the Trust have force, that property in question was owned by the Charitable Trust prior to the partition.
11. ' In the case of Government of Pakistan v. Nizamuddin through Legal Heirs and others, 1994 SCM R 1908 (supra), in the context of the facts of the case Hon'ble Supreme Court held that "in the absence of any evidence to show the nature of trust, or to prove the fact that the income arising from the property was being applied to charitable, religious or educational purposes, the order passed by the Chairman of the Board holding the property as an evacuee trust property was an arbitrary order based on no evidence". In the case of Divisional, Evacuee Trust Committee, Karachi v. Abdullah and 2 others, 1970 SCM R 503 (supra), the Hon'ble Supreme Court held that merely because in the sale-deed one property in favour of Panchayat acquired for the maintenance of Hindu widows does not by itself prove that the Panchayat was a religious or charitable institution or that property acquired by the Punchayat was trust property. The Hon'ble Court further held that, to find out as to whether the property is trust property detailed scrutiny of the Revenue Record as on 14th August 1947 is necessary. In the case of Secretary, District Evacuee Trust Property v. Qazi Habibullah and 2 others, PLD 1991 SC 586 (supra) Hon'ble Supreme Court held that if sufficient prima facie evidence was adduced for showing that the property in question was attached to a religious or charitable institution and said evidence was not displaced by any other reliable.Evidence, the burden of showing actual creation of trust on the party asserting that the property was attached to a religious or charitable trust was not essential and the matter could be decided on the rule of preponderance of evidence. In the case of Qazi Akbar Jan and others (supra) on the basis of entry in the record showingthe owner of the property as " " Supreme Court upheld the finding of the High Court declaring that the property as was attached to a religious trust.
12. In the instant case although trust deed was not produced but from the finding of facts recorded by respondents Nos.3 and 4 as well as from the record of right it is established that the property was owned by Panchayat Punjabi Daras of Karachi and the same was treated as "rent free property" prima facie established that the property in question wasbelonged to a charitable trust. The petitioner failed to point out from the record any evidence to dislodge the finding of fact recorded by respondents Nos.3 and 4.
13. ' For the foregoing reasons the petition is dismissed in limine. These are the reasons of short order dated 6-4-2004.