FOREST DEVELOPMENT CORPORATION, N.-W.F.P. through Managing Director Versus INHABITANTS OF LOCAL ROYALTY-HOLDERS

IJAZ-UL-HASSAN KHAN, J .---Regular First Appeal No.92 of 2000 by Forest Development Corporation N.-W.F.P. through its Managing Director, is directed against the judgment and decree of learned Civil Judge/Illaqa Qazi, Dir dated 22-6-2000, whereby suit of respondents/plaintiffs for recovery of royalty and damages has been partially decreed.

2. Forest Development Corporation is a statutory body and takes in its possession on behalf of Forest Department N.-W.F.P., marked trees. After deducting its expenses of felling, extracting and transporting the timber, makes payment to royalty-holders and Forest Department at the ratio of 40/60. The Corporation entered into an agreement with the respondents/royalty-holders in respect of Compartments Nos.408/409/410 of forest i.e. Dog Darra District Dir. Tenders were invited and after acceptance of the same, work order was issued in the name of the contractor. The officials of the appellant-Corporation cut 1,21,460/37 feet timber from the forest in question. The grievance of the respondents/ royalty-holders is that when the timber reached at a place namely "Chinar", the official of the appellant-Corporation in conspiracy with some local people obstructed the transport of the timber from Shringal Transport Depot and subsequently put the same on fire on account of which the royalty-holders sustained huge losses. Many applications were given to officials of the appellant-Corporation to seek help of the local police and District Administration but the applications remained un-responded.

3. The suit was resisted on all grounds legal as well as factual and the claim of the royalty-holders was denied. The parties were put to trial on following issues:-

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4. After recording such evidence as the parties wished to adduce, learned trial Judge took up Issues Nos. 1 to 4, 6 and 10 together and came to the conclusion that despite several applications submitted by the royalty-holders to the District Administration, no step was taken for protection of the timber, which was resultantly set to fire by some miscreants in conspiracy with the officials of the appellant-Corporation. It was also held that the contractor was not responsible for the mishap and it was the responsibility of the local administration to ensure protection of the timber. The claim of the respondents for royalty was accepted and the remaining claim was denied. Resultantly, suit was partially decreed and a preliminary decree was passed per the impugned judgment.

5. We have heard at length S. Mir Muhammad, Advocate for the appellant-Corporation and Mian Fazal Hussain, Advocate for the respondents/royalty-holders. We have also gone through the evidence with their able assistance.

6. After hearing the arguments of the learned counsel for the parties in the light of the material on file, we find ourselves in agreement with learned counsel for the appellant-Corporation that the impugned judgment suffers from the vice of misreading and non-reading of evidence which has resulted in manifest injustice. A perusal of the record would reveal that the trial Court has misread the evidence and misinterpreted the law in favour of the respondents/royalty-holders. The documentary evidence brought on the record has also been excluded out of consideration and put at shelf without any justifiable reason. It is not discernible from the material on record that the timber in question was burnt due to negligence of the officials of the appellant-Corporation and as such they are responsible for the loss sustained by the royalty-holders. It is an established principle of "Qanun-e-Shahadat" that a person who assets/alleges a particular fact and wants the Court to believe that such fact exists, he shall be required to prove the existence of such a fact. The evidence led by the royalty-holders clearly suggests that the officials of the appellant-Corporation were not behind the occurrence and the timber was put to fire by violent mob duly equipped with arms and ammunition. The findings recorded on issues Nos.1 to 4, 6 and 10 are not in consonance with the material on record and cannot be allowed to remain intact. Per the relevant clauses of the agreement deed it was the sole responsibility of the contractor to ensure safe transaction of the timber to its destination. The appellant-Corporation could not be held responsible for any default or lapse on the part of the contractor. We feel that the evidence of the appellant-Corporation has not been given due weight which is comparatively more credible. We are satisfied that the officials of the appellant-Corporation had no hand in the occurrence as a result whereof the timber was burnt to ashes on the night between 4th and 5th October, 1993.

Pursuant to above, we accept the appeal, set aside the impugned judgment and decree and dismiss the suit of respondent/royalty-holders with no order as to costs.

H.B.T./450/P Appeal accepted.

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