FAZALE WAHID Versus ADDITIONAL HOME SECRETARY N.-W.F.P.

SAIDUZZAMAN SIDDIQUI, J.--- The petitioner is seeking leave to appeal against the judgment of a learned Division Bench of the Peshawar High Court dated 11-1-1994 whereby the Writ Petition No.22/19094 was dismissed,

2. The petitioner claims to be a donee of the property belonging to late Bazir Khan situated in Ningolai, Tehsil Kabal District Swat by virtue of a gift alleged to have been made in favour of the l5etitioner on 22-1-1961. It is not disputed that said Bazir Khan was survived by his two daughters Mst/ Badshaheen and Mst Bakht Ranra. These two daughters of late Bazir Khan instituted a suit on 24-12-1977 before the Deputy Commissioner, who was entitled/competent to entertain their claim under Regulation No.II of 1975, claiming their Sharai share in the land. The matter was referred by the Deputy Commissioner to the Jirga for trial of the case and through a unanimous award delivered by the Jirga the suit instituted by respondents Nos.4 to 8 was dismissed. Acting on the recommendation of the Jirga the Deputy Commissioner dismissed the suit on 10-7-1980. Respondents Nos.4 to 8 filed appeal against the decision and through an ex parte order the Appellate Court set aside the judgment of the Deputy Commissioner dated 10-7-1980 and referred the case to a new Jirga for decision afresh. On revision filed by the petitioner the judgment of the Appellate Court in the case was set aside by the revisional authority and case was directed to be disposed of by the Appellate Court afresh after hearing the parties. On remand of the case the Appellate Authority confirmed the decision of the Deputy Commissioner dated 10-7-1980 dismissing the suit of respondents Nos.4 to 8. Respondents Nos.4 to 8 preferred a revision application against the judgment: of the Appellate Authority which accepted the revision petition, set aside the judgment of the Appellate Authority and remanded the case to the original Court to re-hear and decide the case in accordance with the points formulated in the judgment of the Revisional Authority. The petitioner challenged the decision of the Revisional Authority in a writ petition which was dismissed. On remand of the case the original Court by judgment dated 24-1-1988 decreed the suit of respondents Nos.4 to 8. On appeal preferred by the petitioner against the judgment of 24-1-1988 the case was remanded for decision by a new Jirga. However on revision application filed by respondents Nos.4 to 8 the Revisional Court set aside the order of the Appellate Court and restored the original decree of the original Court dated 24-1-1988. The Order of the Revisional Court was challenged before the learned Division Bench of the Peshawar High Court through Writ Petition No.22/1994 which was summarily dismissed by the impugned judgment.

3. Learned counsel for the petitioner in seeking leave to appeal against the impugned judgment contended before us that the observation in the order of the Revisional Court that the gift was made by Bazir Khan in the name of his two daughters in 1981 is against the record as the gift was made by Bazir Khan in favour of the petitioner and not in favour of his two daughters. To this extent the contention of the learned counsel for the petitioner appears to be correct, however, the learned Judges rightly declined to interfere with the case in exercise of their jurisdiction under Article 199 of the Constitution as in the order original Court namely the Deputy Commissioner it was categorically held of the t the basis of the claim of the petitioner was the gift dated 22-1-1961 which that did not bear any thumb-impression or signature of the donee. The learned Judges of the High Court also took into consideration that the transaction of this nature required to be signed from any Hakim or Mushir or the Ruler himself under the prevailing practice and that such transactions were also registered in the record but in this case neither the document was endorsed in the manner stated above , _ nor it was entered in the register maintained for such transactions. The controversy regarding execution or otherwise of the gift deed being a factual controversy, the learned Judges declined to go into this question under Article 199 of the Constitution of Pakistan.

We have carefully gone through the judgment of the learned Judges of the High Court and find that the discretion exercised by the learned Judges of the High Court in refusing to go into the disputed questions of fact in exercise of their jurisdiction under Article 199 of the Constitution, was a proper exercise of their jurisdiction. The impugned order is substantially a just order in the circumstances of the case. We, accordingly, refuse to grant leave and dismiss the petition.

A.A./F-337/S Leave refused.