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Civil Petition No. 190-P of 1984, decided on 21st October, 198

(Against the judgment and order of the Peshawar High Court, dated 6-5-1984, in Writ Petition No.92/84.)

--- Arts. 185(3) & 199--Leave to appeal--Petitioner raising questions pertaining to appraisement of evidence--Such exercise, held, could not be undertaken in proceedings arising out of Constitutional Jurisdiction- Leave to appeal refused.--[Evidence].

Muhammad Ismail Quraishi, Advocate Supreme Court, instructed by Nur Ahmad Khan, Advocate-on-Record (absent) for Petitioner.

Nemo for Respondents.

Date of hearing: 21st October, 1984.

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.

The two 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. 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.

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 two 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.

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.

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.

The admissions made by the two 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.

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.

We find no merit and leave to appeal is refused.

M.Z.M. Leave refused.

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