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Writ Petition No. 370 of 1981, decided on 22nd September, 1985.

‑‑‑S. 6‑‑Revisional jurisdiction‑‑Remand of case ‑Phrase "hearing the matter on merit", meaning and scope‑‑Phrase "hearing the matter on merit", held, would include, decision on question of limitation, jurisdiction and on any other objection that could be raised by a party before Court/Tribunal while re‑hearing matter.‑‑[Words and phrases].

‑‑‑Art. 9‑‑Qanun‑e‑Shahadqt Order (10 of 1984), Art. 133‑‑Quashment of orders‑‑Requirement‑‑High Court, held, could strike down orders of Authority where opportunity to cross‑examine witnesses of adversary was denied to party‑‑Where party or counsel was responsible for failure to avail of opportunity of cross‑examination, High Court would refuse to interfere in constitutional jurisdiction.

‑‑‑Art. 9‑‑Constitutional jurisdiction, exercise of‑--Adjudication by Tribunal of exclusive jurisdiction that matter in dispute was old and closed chapter and that same could not be re‑opened‑‑Such view of Tribunal being substantiated by record, High Court, held, would not interfere in constitutional jurisdiction .

H. Z. Mahfooz Khan for Petitioners.

Muhammad Latif for Respondents.

Date of hearing: 22nd September, 1985.

----- Muhammad Khairul Azam and two others residents of village Lavi, Tehsil Darosh, District Chitral have challenged in this Constitutional Petition the judgment and order of respondents 3 to 5 passed against them.

2. According to the petitioners they alongwith Gul Azam and others (not party in the petition) were the ancestral owners of agricultural land measuring 70 Chakoram which was forcibly taken possession of by respondents Nos. 1 and 2, that the action of the respondents was assailed before Mehtar Chitral before the merger of the State but neither any enquiry was conducted nor any legal order was passed for redressing their grievance. It was in the year 1958 that late Sardar Behram Khan, then Wazir‑L‑Azam of Chitral State declared respondents Nos. 1 and 2 entitled to 10 Chakoram of land by purchase from the petitioners through receipt, dated 25th Muharram 1318 A . H . It is alleged that on the appointment of a Commission under the Settlement of Disputes of Immovable Property Chitral Regulation of 1974, an application was made to it for restoration of the excess land held by the respondents but no action was taken on it. Finally they made an application to the Assistant Commissioner on 31‑8‑1975 which was rejected and their appeal dismissed by the Board of Revenue with the direction to approach the officer appointed under para. 5(1) of Regulation of 1974 vide order, dated 14‑9 1976. The application made to the Assistant Commissioner, the relevant authority under the law, was however, dismissed holding it barred by time.' On the rejection of their appeal by the Board of Revenue a revision petition was filed before the Federal Land Commission, Rawalpindi. The learned Member of the Federal Land Commission set aside the aforementioned order, remanded the case with the director that the petitioners he heard and the decision be made on merits afresh In pursuance to the order of the learned Member, Federal Land Commission fresh enquiry was made in which evidence of the parties was recorded. On consideration of the evidence led by the parties the petitioners claim was rejected mainly on the ground that it was an old dispute finally determined long ago of which he had no jurisdiction to reopen it. This order was affirmed in appeal holding the matter Kohna not open to reconsideration under the Settlement of Disputes of Immovable Property Chitral Regulation of 1974. Review petition moved before Mr. Justice (Retd.) Qaisar Khan, a Tribunal appointed under Presidential Order 13 of 1980, was however, dismissed being incompetent.

3. In this background of the case the petitioners have prayed for quashment of the aforementioned orders and for rehearing of the case on merits in accordance with law.

4. The learned counsel for the petitioners contended that the predecessor of the petitioner had never sold the land in suit in favour of respondents 1 and 2 and that the deed produced was a fake and forged document. It was further contended that in case the deed is held to be a valid one it covered only 10 Chakoram of land and no more hence the petitioners were entitled to the remaining 60 Chakoram of land. It was further argued that the orders of the lower Forums can be struck down even on the ground that the petitioners were not afforded an opportunity to cross‑examine the witnesses of the defendant/ respondents during the proceeding before the Assistant Commissioner. It was argued that when the Member, Federal Land Commission in exercise of his revisional jurisdiction remanded the case with the direction to rehear the case on merits the question of limitation and jurisdiction could not have been reagitated in the lower. Court.

5. The learned counsel for the respondents, however, repelled all these contentions. It was argued that the Tribunal of competent jurisdic tion having enquired into the matter by recording evidence of the parties and hearing them the decision given on question of facts is not open to scrutiny in writ jurisdiction, especially when the orders are based on proper appraisal of the evidence. Reference was made to the order of the Member, Federal Land Commission where their main grievance was that their case be tried and heard in accordance with law by the lower forum. It was in that context that the case was remanded with the direction to hear the petitioners on merits and determine the case in the light of the evidence produced and other relevant circumstances. This order was fully complied with as both the parties were given sufficient time to lead their evidence, whereafter the orders impugned in this petition were based on the proper appraisal of that evidence. The allegation of the petitioners that no opportunity was given to the petitioners to cross‑examine the witnesses for the respondents have been controverted by making reference to the record.

6 After hearing the learned counsel for the parties we find no substance in this writ petition. After remand of the case both the parties led their evidence oral as well as documentary which was made the basis of the impugned orders. It was conceded before us by the learned counsel for the petitioners that a Tribunal before whom review petition was filed had no jurisdiction in the matter as review was competent only against the revisional order of the Member, Federal Land Commission. There is no substance in the arguments of the learned counsel for the petitioners that the words 'hearing the matter on merits does not include the decision on question of limitation and jurisdiction. Determination of the matter in accordance with law mentioned in the order of remand would definitely include the objections that could be raised by the opposite party while rehearing the matter.

7. There was, however, some substance in the contention of the learned counsel for quashing the orders on the ground that the petitioners were not afforded opportunity to cross‑examine the witnesses of the defendant‑respondents. It may, however, be made clear that it is not the duty of the Court to get the attendance of the Advocate representing a party but in cases where adjournment is granted and the cross‑examination is reserved the order of the Court refusing cross‑examination of the witnesses at the adjourned hearing would definitely render the proceedings incompetent and vitiated unless the parties waives their right of cross‑examination. Unfortunately the contention is factually incorrect as from the perusal of the original file it is undoubtedly proved that after recording the evidence of the witnesses for the defendants at the request of the petitioners the cross‑examination was reserved and it was after about 4 months that. all the witnesses were thoroughly examined in Court. The learned Assistant Commissioner as well as the learned Member, Board of Revenue have specifically referred to this fact when similar arguments were advanced before them.

8. From the documentary as well as oral evidence available on the record the land in dispute was held to be in possession of the predecessor‑in‑interest of respondents 1 and .2, for the first time when the petitioners' predecessor agitated the matter unsuccessfully in the year 1910. This fact finds support from the applications made in the year 1933 and 1935r copies Exh.D.10 and D.11. It is mentioned in the order, dated 17‑2‑1953 on the record of the judicial file that the dispute related to the period 1910 hence is Kohna. This order was conveyed through a letter which is reproduced as under:‑‑

No. 1047/WA‑17/1 dated Chitral the 26th August, 1958

To

The Judicial Council,

Chitral State, Chitral.

Memorandum

Reference attached application of Jemadar Mulki Azam of village Lawei, Tehsil Drosh, dated 6‑8‑1958 to the address of Political Agent, Malakand.

Mulki Azam may be informed that the case has already been decided and declared 'Kohna' it cannot, therefore, be reopened.

He may further be told that he had already been informed of the above by the Secretary, Tribal Affairs Department, Peshawar, vide his memo. No. 1857/T A/155, dated 15th May, 1958. As such there is no need of submitting false applications to the high officials, which cause waste of time.

(Sd.)

Wazir‑i‑Azam,

Chitral State.

Consequently the finding of the Tribunal of exclusive jurisdiction holding that the matter is an old and closed chapter and cannot be reopened is fully substantiated by the record which needs no interference in extraordinary writ jurisdiction. We, therefore, dismiss this petition with no order as to costs.

A. A. Petition dismissed.

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