FAZLE RAZAQ vs JAN SADIQ And Other
The petitioner sought leave to appeal against the judgment of the Peshawar High Court which dismissed his Constitutional petition against concurrent findings ordering his eviction from a property claimed by the respondents as ancestral property. The matter was initially adjudicated through a Jirga and Tribunal under the Provincially Administered Tribal Area Civil Procedure (Special Provision) Regulation, 1975, resulting in a majority verdict for the respondents, which was upheld in appeal and revision. Before the Supreme Court, the petitioner contended that evidence was not recorded in accordance with Article 8 of the Regulation, that a plaintiff failed to appear as a witness, and that admissions by certain brothers of a plaintiff were ignored. The Supreme Court held that questions of fact and appraisement of evidence, including procedural objections not raised before the lower forums, cannot be agitated or determined in Constitutional jurisdiction or in leave to appeal proceedings. Consequently, the Court found no merit in the petition and refused leave to appeal, laying down the principle that factual disputes and evidentiary weight fall outside the scope of constitutional review.
- Can a question of fact or procedural irregularity regarding the recording of evidence, not raised before the lower forums, be raised for the first time in constitutional jurisdiction?
- Whether the appraisement of evidence by a tribunal or Jirga can be re-examined in proceedings arising out of constitutional jurisdiction?
- Does the law require all plaintiffs to personally appear as witnesses in civil proceedings?
- Section 4, Provincially Administered Tribal Area Civil Procedure (Special Provision) Regulation 1975
- Article 8, Provincially Administered Tribal Area Civil Procedure (Special Provision) Regulation 1975
ORDER
1. SHAFIUR RAHMAN, J.--The petitioner who has been unsuccessful as a defendant in all the forums seeks leave to appeal against the judgment of the Peshawar High Court, dated 6-5-1984 whereby a Constitutional petition filed by him was dismissed.
2. The to plaintiff-respondents sought eviction of the petitioner from a property which was claimed by them as their ancestral property. It was described as a garage and was given out to the petitioner at a rent of Rs.45 per annum under a rent note. The Assistant Commissioner before whom the claim was preferred referred it to the Tribunal under section 4 of the Provincially Administered Tribal Area Civil Procedure (Special Provision) Regulation, 1975. The majority verdict returned by the Jirga was in favour of the plaintiff-respondents. An appeal was filed by the petitioner which was dismissed by the Additional Commis--sioner and the revision by the Additional Home Secretary.
3. The petitioner challenged the decision in Constitutional jurisdiction but failed as the petition was dismissed on the ground that the question of title in the property could not be challenged in the Constitutional jurisdiction.
4. The learned counsel for the petitioner contended before us that the evidence had not been recorded in accordance with Article 8 of the Regulation inasmuch as Dr. Yaqoob was not examined in the presence of the petitioner; that the plaintiff Jan Sadiq did not himself appear as a witness and further to brothers of Jan Sadiq had appeared and admitted the gift having been made by their brother Momin Sadiq in favour of the petitioner and that due weight was not given to such an admission.
5. After hearing the learned counsel for the petitioner we find that the first ground was not urged at any stage before the filing of the Constitutional petition. It is not, therefore, possible to determine whether Dr. Yaqoob had been examined in accordance with the require--ment of section 8 or not and if a violation had taken place what was its effect on the proceedings. The Constitutional jurisdiction was not the proper stage to raise such a question of fact and get a determination.
6. One of the plaintiffs did appear and there is no requirement of law that all the plaintiffs must appear as a witness. If at all the petitioner wanted to examine any particular plaintiff for advancing his case he had to make a request.
7. The admissions made by the to brothers of Jan Sadiq had been taken note of but were not given due effect on the ground that some sort of private partition had taken place between the brothers and this admission was not made by those brothers who had interest in the property.
8. We find that the learned counsel for the petitioner is raising questions pertaining to the appraisement of the evidence and such an the exercise cannot be undertaken in proceedings arising out of Constitutional jurisdiction.
9. We find no merit and leave to appeal is refused.
Cited by 1 case
- Dr. JAVAID AKHTAR Versus State 2007 PLD 249