FEDERATION OF PAKISTAN and 2 others vs Major (Retd.) MUHAMMAD SABIR KHAN

1. ' MUHAMMAD AFZAL ZULLAH, C.J.--This appeal through leave of the Court is directed against the judgment of the High Court of Balochistan; whereby the Constitutional Petition filed by the respondent in a land (title/possession) case, was allowed.

2. ' The order for grant of leave reads as under:-- "The respondent filed a Constitutional Petition in the Balochistan High Court, Quetta seeking relief that the action of the petitioner dispossessing him from agricultural land in dispute may be declared as without lawful authority and the petitioner be. Directed to hand over possession of the land to him. The ownership of the land was claimed by respondent on the basis of certain registered and un-registered sale deeds executed between 1965 to 1971 by persons named in the documents as owners thereof. The Constitutional Petition was resisted on the ground that the land belonged to Government of Balochistan and was meant for the establishment of Corps Scouts of Mahsud Scouts.The respondent was said to be the first contingent Commander of the Forces posted at Khuzdar at the relevant time and was entrusted with the job of procuring lands for that purpose. It was also averred that the possession of the land had all along been within the control of the Scouts. The learned High Court referred to as many as 10 documents produced on behalf of the respondent and two brought on the record on behalf of the Government. An objection was raised before the High Court on behalf of the petitioner with regard to the maintainability of the Constitutional Petition on the ground that the matter involved disputed questions of fact. This plea was, however, rejected by the learned High Court.

2. It was contended by the learned counsel for the petitioner that in the first place a Constitutional Petition did not lie under Article 199 of the Constitution and such jurisdiction, in any case, could not be invoked in matters requiring determination of factual controversies and detailed inquiry which required recording of evidence."

3. ' From the bare reading of the impugned judgment it appears that the learned Judges deciding the Writ Petition were not oblivious of the seriousness and strength of the objection to the competency of the Writ Petition which must have been raised as a preliminary objection from the appellants side. At some stage they also, it seems, realised that it might be difficult to resolve serious factual controversy between the parties. However, it was felt by them that they would be able to resolve by making reference to admitted positions and records.

4. ' In actual exercise, however, the learned Judges relied upon disputed documents and disputed versions. Therefore, what they originally thought possible in reality did not materialize when rendering the judgment and giving reasons in support thereof. When all this was put to the learned counsel for the respondent who opposed the present appeal and defended the High Court judgment, he contended that there was no dispute of title between the parties before the High Court, therefore, the question of possession could be resolved in Writ jurisdiction and having been resolved, this Court should not interfere. When further questioned: as to whether, the respondent claims title in the land also he in the first instance answered in the affirmative and admitted that this is strongly disputed by the appellants' side. Thus even in the very beginning a serious dispute .

5. Regarding a very important factual aspect of the case has arisen. He did not like our deciding the same in these proceedings because it would involve recording of voluminous evidence.

6. ' He then took the position that even now the question of title can be left to be determined by the Civil Court. He also stated that the matter having gone before the Revenue Authorities the same dispute has been resolved against the respondent and in favour of the appellants and that the respondent has gone before the higher forum for redress. Both the learned counsel were unaware whether the Civil Court has or has not been approached by either party. They, however, have stated that the Civil Court, if approached, would have the jurisdiction in the matter.

7. ' Regarding the position of the record learned counsel for the respondent relied on such records which were relied upon by the High Court and which are seriously disputed and/or interpreted otherwise by the appellants.

8. Thus after hearing both the learned counsel the final position that emerges is that the question of title is involved. Not only this the question of possession also cannot be resolved except, through proper trial. With due respect to the High Court this case did not qualify for entertainment in the Writ jurisdiction and the Writ petitioner in his own interest should have been advised to approach the other proper forum. With these remarks this appeal is allowed, the impugned judgment is set aside and parties are left to seek and prove remedy in accordance with the law in the proper forum. No order as to costs.