1989 PLP 1874 (SCMR)

USMAN ALI SHAH, J‑‑Leave to appeal has been sought by the petitioner against the order of the Peshawar High Court, Peshawar dated 24‑10‑1988, whereby in constitutional jurisdiction the learned High Court declined to interfere with the findings of the respondents Nos. 5 to 7 concurrently decided in favour of the respondents Nos. 1 to

4. The background of the case in brief is that a declaratory suit was instituted by the plaintiffs/respondents Nos. 1‑4 in the Court of Assistant Commissioner Buner for the land in dispute measuring 41 kanals 16 marlas, bearing khasra Nos. 33, 34 and 35 situate in village Tanta. The defendant/petitioner contested the suit. The .matter was referred to a Jirga headed by Tehsildar Chagharzai for opinion. During the jirga proceedings the petitioner's son and special attorney voluntarily offered an oath to the respondent No. I and his witness Umara Khan that if they took oath on the Holy Qur'an, he will withdraw from the suit. Respondent No. 1 and Umara Khan took the oath on which the Jirga gave its award in favour of the respondents Nos. 1‑4 and the suit was decreed in their favour by the Assistant Commissioncr, vide his order dated 29‑11‑19.1‑

1. The petitioner filed a review petition which was rejected by the Assistant Commissioner vide order dated 8‑2‑1986. His appeal and revision before the respondents Nos. 6 and 7 were also dismissed. Constitutional petition of the petitioner before the Peshawar High Court, Peshawar was dismissed in limine vide impugned judgment. We have heard the learned counsel for the petitioner and gone through the record and the findings of the Courts below. The petitioner has lost throughout in all the Courts below. The main contention of the learned counsel before us is that Jumma Gul the son and special attorney of the petitioner was not authorized to administer oath to the defendant party and decide the case under the Oaths Act as no such powers are given to him in the written power of attorney to do so. A perusal of the said power of attorney clearly shows that Jumma Gul attorney has the powers to do so. The relevant portion of the power of attorney in this behalf is given below:‑ It is apparent from the contents of the said power of attorney that the petitioner has given all those powers which the attorney has used legally in the instant case and the petitioner is now bound to ratify it. The question involved in this petition is essentially with regard to the question of fact which is concluded concurrently by the learned Courts below. We do not find any justification for any interference in this behalf with the impugned judgment, which does not suffer from any legal defect. The result is that this petition has no force and is accordingly dismissed. Leave to appeal refused. M.A.K./G‑197/S Leave refused.