(b) Constitution of Pakistan (1956), Art (PLP)

SHABIR AHMAD, J.‑By this petition Sardar Sher Muhammad seeks a writ of certiorari, which would render ineffective the order passed on the 9th of July 1958 by Mr. Muhammad Jan, the then Custodian of Evacuee Property, West Pakistan, whereby it was held that the property which the petitioner claims to belong to him was evacuee property.

2. The claim of the petitioner to the property was based on the allegation that he had given his own property situated in a territory which now forms part of India to his nephew, Kartar Singh, who was owner of the property in dispute. It is not denied that the petitioner was originally a Sikh and had embraced Islam long before Partition of British India into Pakistan and India.

3. It can hardly be doubted that under the relevant law it was within the exclusive jurisdiction of the Custodian of Evacuee Property to declare whether or not any property was evacuee property. The writ sought is one of certiorari which can issue only on very limited grounds. When exercising its powers to issue a writ of certiorari, this Court cannot act as an Appellate Court, though it Is undeniable that because of the supervisory powers vested In it, the Court may quash the order of any other Tribunal, judicial or quasi‑judicial, if the impugned order is without juris diction or is based on no evidence at all or the evidence has been misread. It is keeping these principles in view that I proceed to consider whether or not the petitioner is entitled to the writ he has prayed for.

4. Learned counsel for the petitioner urged that the order of the Custodian proceeded on wrong premises. It may be mentioned here that on the day on which the hearing of the case was con cluded before the Custodian the petitioner was not present before him either personally or through counsel. The Custodian had decided to proceed ex parte against the petitioner, because he was of the view that the petitioner was evading service of notice served on him. Learned counsel for the petitioner pointed out that not only had the Custodian acted on wrong premises when he carne to the conclusion that ex parte proceedings should be taken against the petitioner but also acted on wrong premises when he save the finding that the property involved was evacuee property to which the petitioner could lay no valid claim.

5. Taking up the question of ex parte proceedings, one finds that the report on back of the summons issued to the petitioner had been misread in so far as some of the persons who were recorded to have stated that the petitioner was not in the village were taken by the Custodian to have said that the petitioner was in the village and was evading service of the process. Mr. A. S. Salam, Advocate, who appeared for respondent No. 2 urged that even if the Custodian had not misread the report regard ing the service of notice issued to the petitioner, his order would have been that ex parte proceedings be taken against the petitioner, because the statements of persons who said that the petitioner was evading service could not but have been held to outweight the statements of persons who said that he had gone out to attend to a case fn a Civil Court. In my view, the approach of Mr. A. S. Salam is not one that a Court called upon to exercise writ jurisdiction can adopt. I have mentioned already that juris diction to issue a writ of certiorari, though it may be supervisory, cannot be altered into appellate jurisdiction. It would certainly be open to an Appellate Court to come to the conclusion that though the inferior Tribunal had given a finding on wrong assump tions, the finding would have been precisely the same if the assumptions had been correctly, made, but it is not within the province of a Court called upon to exercise writ jurisdiction to say that the material on the record, even after excluding the material which was wrongly taken into consideration, was sufficient for the finding that was given.

6. Learned counsel for the petitioner next urged that even when determining the nature of the property, namely, whether ft was evacuee property or not, the Custodian had proceeded on a wrong assumption. The reasons given by the Custodian for coming to the conclusion that the property was evacuee property are clear from the following remarks made by him:‑ "The alleged exchange in this case was said to have been made orally in 1946. No mutation of the exchange was effected, nor any entry relating to the transaction was made in the khasra girdawart or jamabandls relating to the years 1946, 1947, 1948 and no sanction of the Custodian was obtained for this exchange‑" It is clear that the Custodian took three things into consideration for arriving at the finding adverse to the petitioner, one of which was that the sanction of the Custodian for the exchange had not been taken. Now, this exchange was alleged have taken place in 1946 when, admittedly, there was no evacuee property and no Custodian of that property. Mr. A. S. Salam did not deny that the Custodian had wrongly assumed drat sanction for the exchange has necessary, but urged that even if the Custodian had not been under the wrong impression that sanction was necessary, his order would have been precisely the same that it was. I cannot bring myself to look at the matter in the way that Mr. A. S. Salam would have it viewed by the Court, because as I have said already, the jurisdiction to issue writs differs vastly from the jurisdiction to hear appeals. If this were a case of an appeal against the order of the Custodian, it would have been open to this Court to come to the conclusion that the finding was justified by the material on the record which could be properly considered, but as the case has not come before this Court in the exercise of appellate' or revisional jurisdiction, the method in which Mr. A. S. Salam wanted the case to be dealt with cannot be adopted. It may be that; the Custodian would have given precisely the same finding even if he had not been under the impression that sanction of the Custodian was necessary with regard to the alleged sale, but it is equally possible that his finding would not have been same as it was. I am clear in my mind that if the Tribunal of special jurisdiction, whose order is sought to be declared inoperative, has taken Into consideration a matter which could not at all be taken into consideration, occasion for exercise of writ jurisdiction arises.

7. Mr. A. Salam then urged that even if the Custodian's order could be quashed on the grounds, urged by learned counsel for the petitioner, it should not be quashed because it was obvious that the petitioner was laying claim to property which was not his but was evacuee property. This argument cannot receive serious consideration, not only for the reason that this Court is not an Appellate Court with regard to orders of the Custodian of Evacuee Property but also for the reason that the decision of the question whether or not the property was evacuee property is in the exclusive jurisdiction of the Custodian of Evacuee Property, and if any Tribunal, other than the Custodian, be that Tribunal even one which can quash the order of the Custodian in exercise of writ jurisdiction, were to give a decision one way or the other regarding the character of the property, that decision would be entirely with out jurisdiction.

8. In view of what I have said above, I would accept the petition and issue a writ of certiorari certifying that the impugned order is not binding on the petitioner, but would make no order as to casts. ANWARUL HAQ, J.‑I agree. K. B. A. Petition accepted.