FAZAL JAN Versus ROSHAN DIN

ORDER

1. MUHAMMAD AFZAL ZULLAH, C J .‑‑Leave to appeal has been sought by Mst. Fazal Jan plaintiff/petitioner; against the dismissal by High Court, of her Civil Revision. It had arisen out of her suit for declaration relating to inheritance. It was dismissed. The appeal also failed.

2. The petitioner's claim was that she had inherited the suit property through her father Abdur Rehman who was the real paternal‑nephew Fazal Din, the original owner. The respondents' plea, as it appears from the sketchy facts brought on record of this petition, was that the petitioner had nothing to do with Fazal Din. It was also held so by the High, Court on account of discrepancies in this behalf in various statements made by the petitioner. Another plea raised was that the respondents' side was the owner by virtue of the mandatory in operation of the law relating to extinguishment of occupancy tenancy and if that is accepted the petitioner would have no case. Question of limitation was also raised which was decided against the petitioner by the learned lower Courts.

3. After hearing the petitioner, at some length, she tried to show her connection through her father directly 'with Fazal Din. He, it seems, was the occupancy tenant. We summoned the record also but it is clear from its examination that the case was badly conducted not only' from the petitioner s side but also from the respondents' side. All the relevant documents were not brought on record. The trial Court was not denuded of' power to summon all the necessary revenue record and also, to summon the. Patwari so as to supply omissions from both sides. It was also the duty of the two higher appellant Court. It seems that it was an appropriate case for exercise of power under Order XLI, Rule 27, C.P.C. for bringing on record additional evidence. The suo moto exercise of this power would also have been fully justified in the facts and circumstances of the case. This is demonstrated by the fact that petitioner examined two witnesses besides herself to support her claim regarding her possession of the suit land and agreement Ex.P2 was also placed on road showing that she was in possession of the land which was with one Misri son of Mis Ziina Pathan on contract cultivation basis and that he had similarly its possession under her father. P.W.3 Khairullah had supported the petitioner but P.W.2 made a short statement saying that he had earlier made a statement in favour of the petitioner and that he had nothing more to say. As against this the evidence led from the respondents' side is the statement of Mujahid Khan defendant who deposed that he had pre‑empted the sale of this land and had obtained pre emption decree in that behalf. And for this reason only, according to him, the petitioner/plaintiff had no connection with the land. On this the counsel for the defendants closed the evidence with the following statement:‑‑

4. On the contrary the counsel for the plaintiff had not closed her evidence because he had stated as follows:

5. The original record of the trial Court shows a miserable jumble of papers which also, it is possible, might have resulted in miscarriage of justice. It is high time that the Chief Justices of the High Courts may look into this sorry state of record maintenance by the Civil Judges when conducting the trials. The Registrar of this Court will after carefully noticing the flaws in this behalf in the present case address a separate letter to the Registrars of all the High Courts. And if need be the subject may also be considered in the next meeting of the Chief Justices.

6. Be that as it may, after having the experience of hearing the petitioner in person it is not surprising that her case also has not been properly handled. She appeared in person before this Court as well as before the First Appellate Court. It is almost impossible to get any coherent picture from her jumbled up submissions. And that also explains the so‑called discrepancy pointed out in the High Court for her version about her connection with Fazal Din ‑‑ whether it was through her father or uncle.

7. That, however, should not have deterred the Court or higher appellate Courts from digging out and discovering the truth and reality. The petitioner has at least made a claim that she got the property from her grandfather Fazal Din whether real or through her own father or a predecessor grandfather through a paternal‑uncle. On the other hand the respondents' case starts and ends with Mst. Piari who no doubt is mentioned as widow of Fazal Din; but it is not clear as to whether she got the property from Fazal Din or through some other source. If it was through Fazal Din then the question of the character of Mst. Piari's estate should also have been thoroughly examined. And in that context the reversionary of Fazal Din might have been found out. The petitioner was one of the claimants in this behalf with further claim and material in her support that she remained in possession of the land. There is another circumstantial support for the petitioner's case; namely, there were abrupt entries in the record of rights in the name of Mst. Piari in 1961‑62 ‑‑ there is no link of the suit land with her prior thereto. It appears that everything happened in a haste may be at stage indecent as well. There was mutation of ownership on the basis of what has been described in one of the impugned judgments as statutory process. There another mutation of gift thereafter. There were sales also one after the other it all culminated then in a pre‑emption decree ‑‑ it is not known in circumstances; whether through contest or consent.

8. A strong possibility cannot be excluded that a woman like the petitioner as we saw her in Court, being unable to manage and hold and protect her property, others might have taken undue advantage of her incapacity. For all these and other related reasons we consider it a fit case for grant of leave to appeal.

9. The record shall be prepared meticulously with the assistance off the counsel for the parties. The petitioner, it is apparent from appearance is incapable of conducting this complicated case herself; therefore it is in the interest of justice that she should also be provided with assistance of a competent experienced civil lawyer. This assistance (it is further emphasized), to the lady would also be deemed to be in pursuance of fundamental right contained in Article 25, Clause (3); wherein an assumption has been made that the State ' shall make special provision for the protection of women and children. The protection here does not only mean the protection of the body but also the rights. These rights include the property rights.

10. Although the word "State" here, prima facie, does not include judiciary as it is not included in the definition in this behalf in Article 7 of the Constitution; yet in the peculiar context of Article 25(3) "the State" would here also included the judicial functionaries. The question of protection of the rights of women and children arises almost in every case wherein they or either of them are involved. Accordingly the "State" here would include the Presiding Judges who hear and decide such like cases. Additionally the definition in Article 7 would not prevent a Court directing the State to perform the function visualised in Article 25(3). Thus in both senses; namely, contextually as well as by statutory definition the, petitioner can be provided with legal assistance through engagement of a competent counsel. He should be able to sort out the confusion created mainly by the incapacity of the woman/petitioner who as stated by her has none to help and look after her affairs. We order accordingly that the counsel shall be engaged at State expense.

11. The question as to why she should not have been provided assistance from free legal aid agencies it suffices to observe that they are not at all up to the mark and the purpose underlying Article 25(3); which would not be served by recourse to such like free aid alone. See the case of Mst. Zubaida (Cr. Appeal No.18(S) of 1988), 1990 S C M R 895 convict of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Her case was similarly mismanaged and on this discovery on a Jail Petition the Supreme Court had granted special leave to appeal.

12. The petitioner seems to be a pauper. There shall be no security for costs.

13. This appeal shall be heard at Peshawar. The office to suggest a panel of lawyers from which the learned counsel would be selected to assist the Court on payment of his fee as already ordered, by the State.

14. M.B.A./F‑181/S Leave granted.