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Civil Review Petition No. 4/R of 1986 in Civil Appeal No. 23/P of 1982, decided on 8th March, 1986.
(Review of the order of Supreme Court, dated 9th December, 1985 passed in Civil Appeal No. 23/P of 1982).
‑‑‑O. XXVI‑‑Review petition‑‑Observations of Supreme Court in judgment passed in appeal were to the effect that case was to be remanded to High Court for decision of the matter one way or the other but instead it was recorded in judgment that order of Additional Secretary should be restored‑‑Review petition allowed and case remanded to High Court for decision afresh on merits and in accordance with law.
M. Yunus Shah, Senior Advocate Supreme Court, Q. Atiqur Rahman Advocate Supreme Court and M. Shakirullah Jan, Advocate‑on -Record (absent) for Petitioners.
Respondent No. 6 in person.
Date of hearing: 8th March, 1986.
.‑‑This review petition arises out of judgment of this Court delivered in Civil Appeal 23/P, dated 9‑12‑1985 wherein it was observed:
"We cannot uphold the finding of the learned High Court. The matter into consideration was to see whether or not the Additional Secretary, Home and Tribal Affairs Department, Peshawaz had passed his order, dated 4‑10‑1981 after proper appraisal of the evidence, and was his aforesaid order, supported by any legal precedent. The High Court in such matter can go into the question and decide the matter one way or the other..."
But instead of remanding the case to the High Court it was recorded that the order of A.C. Timargara, dated 7‑6‑1970 shall stand restored. Review of the order of this Court dated 9‑12‑1985 is now sought on the ground that the learned High Court had dismissed the writ petition in limine and, therefore, if this Court was of the view that the preliminary order of the High Court was erroneous then the writ petition should have been ordered to be admitted to full hearing, and the case remanded to the High Court because the learned High Court had not announced any judgment in the writ petition; or that if this Court was of the view that on account of misreading and non‑reading of evidence writ petition was competent on question of facts then even in such cases, time and again it has been laid down by this Court that in such cases the High Court should not substitute its own finding of fact in place of the finding of the Tribunal and the only course open was to remand the case to the Tribunal directing it to read the evidence properly again and then decide in accordance with law.
2. We have examined the contentions raised by the learned counsel. Notice was issued to the respondent who appeared before us today and did not seriously contest the issues. We agree that the findings have been inadvertently recorded inasmuch as the order of A . C . Timargara, dated 7‑6‑1970 was restored, whereas the case should have been remanded to the High Court. Accordingly, we allow this review petition and remand the case to the High Court to hear the writ petition afresh on merits, and decide in accordance with law.
M . Y . H . Petition allowed.
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