P L D 1972 Lahore 628 (PLP)

Art. 98‑‑-Writ jurisdiction

Interference with findings of a Tribunal of special jurisdiction on questions of fact--‑Can be made only when findings entirely unjusti fied and arbitrary‑

Evidence available on record supporting con clusion arrived at‑--Finding on such evidence‑--Not unjustified or arbitrary. Sutlej Cotton Mills. Okara v. Industrial Court, West Pakistan. Lahore P L D 1966 S C 472; Kh. Muhammad Anwar and other." v. The Rehabilitatinn Authority P L D 1960 Lah. 201 and Muhammad Yousuf v. Assistant Collector of Customs, Karachi and others P L D 1970 Kar. 97 rel. N. M. Khan and another v. The Chief Settlement and Rehabi litation Commissioner, Pakistan and another p L D 1962 Lah. 468 and Mrs. Keays Byrne v. Settlement Commissioner P L D 1963 Lah. 88 ref. Muhammad Aqil Mirza for Petitioner. Ch. Amjad Khan for Respondents. Date of hearing: 19th April 1972. The facts of the case are that one Gujjar, a right‑holder died in India during the disturbances of 1947 leaving behind two daughters namely Hajran, the petitioner and Hashmat Bibi, and Mst. Bhulli, his wife. Mst. Bhulli and Hashmat Bibi both came to Pakistan while Mst. Hajran, the petitioner was abducted in India and was detained there. Mst. Bhulli has since died and respondents Nos. 1 and 2 have been impleaded to the petition as her legal heirs. Mst. Hashmat Bibi has also since died and respondent No. 3 who is her husband has been implead ed as her legal representative.

2. After having come to Pakistan Mst. Bhulli submitted her claim for the agricultural land belonging to her husband. She was issued the entitlement certificate for an area equivalent to 141 bighas of land. It was, however, not disclosed by her that Mst. Hajran, the petitioner was also one of the heirs of her deceased husband. She and her daughter Mst. Hashmat Bibi were consequently allotted land on the basis of their verified claim in Tehsil Mailsi, District Multan. Mst. Bhulli was given 1/8th share while 7/8th share of the land was allotted in favour of Mst. Hashmat Bibi.

3. Thereafter Mst. Hajran, the petitioner was recovered from the illegal custody of the Sikhs through the efforts of the Government of Pakistan in 1955. After she came to Pakistan she submitted her claim for her share in the land left by her father and according to the petitioner a fresh mutation was sanctioned on 14‑9‑1960, vide the order of the A. C. II on the back of Annex 'A'. According to this mutation 1/8th share in the land was given to Mst. Bhulli, widow and 7/8th share to both the daughters, namely Mst. Hashmat Bibi and Mst. Hajran, the petitioner. Mst. Hashmat Bibi died in 1957 and her entire share was mutated in favour of her mother on 27‑2 1957, vide Annex 'B'. At this, litigation with regard to inheritance of the property left by Gujjar started between the parties. The A. R. C. (Land), Mailsi, conducted the necessary inquiry who decided by his order dated 7‑4‑1961 that 1/8th share in the land should go to Mst. Bhulli, widow and 7/8th share should be inherited by Mst. Hajran and Mst. Hashmat Bibi as daughters of Gujjar deceased. It is significant to note that during these proceedings before the A. R. C. (Land), Mailsi, it was claimed by Mst. Bhulli that her husband had also two sons from her namely Amir‑ud‑Din and Bashir Ahmad who also came to Pakistan and died here in 1948. She claimed that according to law they were also entitled to inherit along with other legal heirs. Mst. Hajran who is step‑daughter of Mst. Bhulli also claimed that her two brothers namely Nizam‑ud -Din and Ghulam Nabi had also come to Pakistan and as such they were also entitled to inherit the estate left by their father. Both the said pleas were not accepted by the A. R. C. (Land) who held that Amir‑ud‑Din, Bashir Ahmad and Nizam Din and Ghulam Nabi had died in India during the lifetime of their father and as such Mst. Bhulli being widow and Mst. Hajran and Mst. Hashmat Bibi being daughters alone were entitled to inherit the property left by Gujjar deceased, according to law. This order of A. R. C. (Land) was challenged in appeal by Mst. Bhulli before the Deputy Rehabilitation Commissioner (Land), Multan, who by his order dated 25‑4‑1962 accepted the same and held that the two sons of Gujjar deceased namely Amir‑ud‑Din and Bashir Ahmad were also entitled to inherit the property of their father as they died in Pakistan in 1948 at Chak No. 19 Mojianwala, Tehsil Pakpattan, District Sahiwal. This order of the D. R. C. (Land) was challenged in revision by the petitioner before the Additional Rehabilitation Commissioner who by his order dated 20‑11‑1962 dismissed the same. The petitioner challenged this order in the High Court by Writ Petition No. 761 /R of 1963. This writ petition was accepted by my learned brother Bashiruddin Ahmad, J., by his judgment dated 4‑3‑1966, whereby the case was remanded to the D. R. C. (Land), Multan to decide the same afresh after proper inquiry in the presence of the parties. Thereafter the matter was taken up by the A. R. C. (Land), Mailsi on remand by the High Court who recorded the statements of the witnesses and decided the case against the petitioner. Appeal was filed against this order before the D. R. C. (Land), Multan who after recording some fresh evidence himself accepted the appeal, He held by his order that Mst. Bhulli, widow and Mst. Hajran and Mst. Hashmat Bibi being daughters of Gujjar deceased were alone entitled to inherit the property. This order was, however, set aside by the Settlement Commissioner in revision who held that two sons of Gujjar deceased from Mst. Bhulli came to Pakistan and died here in 1948. He, therefore, held them also entitled to Inherit the property of Gujjar deceased in addition to the petitioner as well as her step mother, Mst. Bhulli and her step‑sister Mst. Hashmat Bibi. The petitioner has now come up to the High Court and has challeng ed the validity of the impugned orders passed against her.

4. It has been contended that the Settlement Commissioner has misread the evidence on record. According to the learned counsel for the petitioner, the Settlement Commissioner (Land) has wrongly relied upon the statements of P. W. 1, P. W. 3, P. W. 6, P. W. 9, P. W. 10 and P. W. 11 produced before the lower settlement authorities as they were not the eye‑witnesses of the attack made by the Sikhs on the group of people Including Gujjar deceased and his children at a distance of three miles from village Bewipur. It is further contended that the statement of Akbar Khan witness produced by the respon dents has been wrongly relied upon as his statement was only a hearsay. It is further contended that the Settlement Com missioner has failed to take note of the changed version of the story with regard to the burial of the two children namely Amiruddin and Bashiruddin. According to the first version as put forward by Mst. Bhulli they were buried in village Fujian wala while according to subsequent version they were buried in village Tibi Lal Beg, Tehsil Pakpattan, District Sahiwal. It is submitted that even affidavits of some persons including that of P. W. 1, Ali Muhammad were produced in support of the first version. It is submitted that the material change in this version with regard to burial of the two children has not been adverted to by the Settlement Commissioner. It is further submitted on behalf of the petitioner that the case was remanded by the High Court to the Deputy Rehabilitation Commissioner to decide the matter afresh after proper inquiry in the presence of the parties but in disregard of this direction the case was forwarded to the A. R. C. (Land) who conducted the inquiry and also decided the case on merits by his order dated 13‑11‑1967. It is further contended that the Settlement Com missioner has also failed to note that when the first Inheritance mutation was entered at the instance of Mst. Bhulli, no reference whatsoever was made to the said two children as being successors. In interest of their father Gujjar deceased. The learned counsel has contended that the story of the arrival of the said two children in Pakistan after the independence of the country was concocted after the arrival of the petitioner in Pakistan. It is submitted that the learned Settlement Commissioner has failed to take note of this material aspect of the case that the allegation about the death of the two children was made in order to deprive Mst. Hajran, the petitioner of her due share In the property left by Gujjar.

5. The learned counsel for respondents Nos. 1 to 3 has argued that the writ petition is not maintainable as the findings of fact made by competent Tribunal cannot be challenged under Article 98 of the late Constitution of 1962. The evidence produced by the parties has been appraised and the mere fact that another view of evidence on record is possible, cannot be a ground for interference in writ jurisdiction. It has been argued on behalf of the respondents that the fact that the said two children died in Pakistan, has been proved on record and found to be correct by the competent authorities. The evidence produced by the parties with regard to this aspect of the case his been duly appreciated by all the settlement authorities. The Settle ment Commissioner, however, has disagreed with the finding of fact made by the Deputy Settlement Commissioner after perusing the whole record. It is submitted that he was competent to hold contrary to the findings of the Deputy Settlement Com missioner. The learned counsel has further submitted that the conclusion arrived at by the Settlement Commissioner is supported by the evidence on record and it is not open to interference by the High Court while exercising the jurisdiction under Article 98 of the late Constitution,

6. I have carefully examined the evidence produced by the parties. The main grievance of the petitioner appears to be that the evidence on the record has been misread by the Settlement Commissioner who has observed In his impugned order that the Deputy Settlement Commissioner has failed to consider the evidence of the eye‑witnesses namely 1 P. Ws. 1, 3, 5, 6, 9, 10 and 11 before him who had witnessed the attack made by the Sikhs on the group of Mohajirs including Gujjar deceased and his children at a distance of three miles from village Bevipur where from they came to Sirhand Camp. It is submitted that the said witnesses whose statements have been appended with the wilt petition never made any such state ment and they never saw the Sikhs attacking the group of Mohajirs including Gujjar deceased and his children. I have seen the statements made by the said witnesses. P. W. 10, Rahim Bakhsh has stated that he belonged to village lalotri which was at a distance of about three miles from the village of Gujjar deceased. He went to Tibi Lai Beg in the year 1954‑55 and was told by the people there that Amiruddin and Bashir Ahmad sons of Gujjar deceased had died in that Chak and were buried there. P. W. 11, Faiz Muhammad is the real brother of Mst. Bhulli deceased. He has also admitted not to be the eye‑witness of the attack of the Sikhs on the group of the Mohajirs which included Gujjar and his children. He has stated that he found her sister and her two sons and daughter at another place after the attack of the Sikhs and had brought them to Sirhand Camp. P. W. 9, Jan Muhammad Chas stated that he belonged to village Jalotri situated at a distance of about three miles from the village of Gujjar deceased. He was married to Mst. Hashmat Bibi daughter of Mst. Bhulli who has since died. He has stated that he had accompanied Mst. Bhulli from India along with many others and had travelled up to Kasur together. He has further stated that at that time Amiruddin and Bashir Ahmad sons of Gujjar deceased were alive, who died after their arrival in Pakistan at Tibi Lal Beg and were buried there. P. W. 6 is Akbar Ali. He also belonged to village lalotri. He has also stated that he accompanied Mst. Bhulli along with many others from India up to Kasur and at that time her two sons, Amiruddin and Bashir Ahmad were alive. He has further stated that they both died at village Tibi Lal Beg and were buried there. `P. W. 5, Abdul Ghani also belonged to village Jalotri. He has stated that the group of the people which included Mst. Bhulli and his group got together at a place known Rasala where from they travelled together up to Kasur from where Mst. Bbulli went to Teshil Pakpattan accompanied by her two sons and daughter. P. W. 3, Khushi Muhammad has stated that he belonged to village Lachhmangarb, Tehsil Sirhand. This village was situated at a distance of about 18 miles from the village of Gujjar deceased. He has stated that he did not know either Gujjar deceased or Mst. Bhulli till they got together at Kasur in the Camp. Mst. Bhulli was accompanied there by her two sons who died in the Chak Tibi Lal Beg and were buried there. P. W. 1 Ali Muhammad has stated that he belonged to village Jalotri in India. He accompanied Mst. Bhulli and her children i.e. her two sons and one daughter from India up to Kasur. He has further stated that he also came to village Tibi Lai Beg, Tehsil Pakpattan where Mst. Bhulli had come from Kasur. Here two sons of Mst. Bhulli died and were buried there.

7. I have quoted from the statements of the witnesses as referred to in the Impugned order in order to show that the fact whether the said two children, Amiruddin and Bashir Ahmad survived the attack made by the Sikhs on the group of the people which included them was vary much the subject- matter of their evidence. It is true that it has not been stated by the said witnesses that they witnessed the attack of the Sikhs on them but all of them have categorically stated that after the said attack they were found to be alive and they came to Pakistan along with their mother, Mst. Bhulli and died in village Tibi Lal Beg. While discussing the evidence on this point in the impugned order the Settlement Commissioner appears to be fully alive to the disputed facts. It shows that there was sufficient material before him placed on the record by both the parties, on the basis of which he came to the conclusion that the said two children came alive to Pakistan and died here. It is true that the evidence produced by the petitioner shows that the said two children also jumped into the well along with their mother and died there. This evidence has however, not been accepted by the Settlement Commissioner. According to law merely because another view of the evidence is possible would furnish no ground for interference in writ jurisdiction. It is not possible to re‑appraise the evidence which has been construed in favour of the respondents as this is not the function of this Court. Reliance in this respect can be placed upon Ghulam Nabi and another v. Khan Muhammad Afzal Khan, Settlement Commissioner, Lahore (1970 S C M R 68).

8. It has been argued on behalf of the petitioner that if the said two children had survived and had come to Pakistan then they would have been shown as legal heirs of Gujjar deceased at the time of the first mutation entered at the instance of Mst. Bhulli. It is argued that this aspect has been totally ignored by the Settlement Commissioner. This contention is not supported by the facts of the case. It is clear from the Impugned order that this aspect has been adverted to and the explanation as given by the respondents for this omission has been accepted by the Settlement Commissioner. The decision of the Settlement Commissioner in this regard may be erroneous but the same has been given after due appraisal of the evidence. The Impugned order shows that the Settlement Commissioner after discussing the merits and demerits of the version as given by the respective parties came to the conclusion that the said two children had reached Pakistan alive. In this case on a. previous writ petition, as mentioned above, the High Court remanded the case for decision of the question of fact by the settlement authorities as to whether Amiruddin and Bashir Ahmad, two sons of Gujjar deceased had come to Pakistan or not. The Settlement Commissioner had eventually found that the said two children had come to Pakistan after the death of' their father. This conclusion cannot be said to be based on no evidence. It is also not the case of misreading of evidence. If some of the witnesses have been wrongly described by the Settlement Commissioner to have witnessed the attack made by the Sikhs on the group of Mohajirs including Gujjar deceased and his family though the said witnesses have not deposed to that fact, it does not mean that their statements cannot be relied upon by him. Everyone of the said witnesses; has stated that the two children survived the attack of the Sikhs, were seen by them alive in India and they came along with their mother to Pakistan, and died here after their arrival. The disputed fact involved in this case is as to whether the said two children arrived In Pakistan alive after the death of their father or not. The Settlement Commissioner has after due scrutiny of the evidence found that the version given by the respondents in this regard is correct. This is a finding of fact and is not open to review in the present proceedings as this Court cannot re‑examine the evidence. It may be possible that after re‑appraisal of the evidence on record this Court may come to a different conclusion but since this cannot be done while exercising jurisdiction under Article 98 of the late Constitution, therefore, the finding of the Settlement Commis sioner in this regard cannot be interfered with. It is a finding of fact by a competent Tribunal.

9. It has been argued that the evidence of some of the witnesses is based on hearsay and the same cannot be taken into consideration under the law. It may be so, but the fact remains that the majority of the witnesses had deposed that they saw both children alive in India who accompanied their mother and sister to Pakistan and died here. As against this version, the petitioner and her witnesses pleaded that both the children had died in India. The Settlement Commissioner after examination of the evidence has not found favour with the version of the petitioner. This being the position it cannot be said that he was not conscious of this aspect of the case. It has also been argued that the witnesses produced by the respondents did not belong to Bevipur, the village to which Gujjar deceased belonged. This aspect of the case was also argued before the Settlement Commissioner. After dealing with the same he has observed that the most disputed act as to whether both the children came to Pakistan or not has been fully proved by the evidence of the respondents. The learned counsel for the petitioner has further argued that the case was re manded by the High Court to the Deputy Rehabilitation Commis sioner (Lands). Multan, for fresh decision after proper inquiry but the inquiry as well as the decision was made by the Assistant Rehabilitation Commissioner (Land). It is submitted that since the initial order has been passed in violation of the direction as contained in the High Court's order, therefore, all the subsequent proceedings are liable to be quashed. This contention has no force in the circumstances of the case. It is admitted that this objection was raised before the Deputy Rehabilitation Commissioner when the case came up before him for hearing and he allowed the parties to adduce evidence in support of their contentions so that the fresh inquiry into the disputed fact may be conducted by himself in compliance with the order of the High Court. The Deputy Rehabilitation Commissioner (Land) had adverted to this aspect of the case in his impugned order and has stated that he has held fresh Inquiry in com pliance with the direction of the High Court In view of this the objection raised with regard to this aspect has no force.

10. According to law if all the material facts of the case have been taken into consideration before coming to the final conclusion then the same may not be interfered with. A fallacious method of appreciating the findings unless it amounts to a material mistake in assumption is merely an error in recording the finding as to the fact and such an error has never been held to be an error of law justifying interference even under section 100 of the Code of Civil Procedure. It cannot be considered to be a valid ground to say that the authority is not properly appreciating the evidence and the Tribunal has acted without lawful authority. Reference in this respect can be made to Ch. Muhammad Ibrahim v. Sh. Muhammad Rafiq, Settlement and Rehabilitation Commissioner, Lahore (P L D 1966 Lah. 294). This Court does not in exercise of its special jurisdiction against such Tribunal act as a Court in appeal but restricts itself to consider the question affecting the jurisdiction of the Tribunal or correcting the illegalities apparent on the face of the record. In the present case the Settlement Commissioner had the jurisdiction and sufficient material was also before him to come to a decision. This Court may interfere in those cases in which the finding of a Tribunal of special jurisdiction on a question of fact is entirely unjustified, and arbitrary. As discussed above since there is evidence to support the conclusion arrived at by the Settlement Commissioner, therefore, it cannot be said that his finding is unjustified or arbitrary. Reliance in this respect can be placed upon Sutlej Cotton Mills. Okara v. Industrial Court, West Pakistan, Lahore (P L D 1966 S C 472), Kh. Muhammad Anwar and others v. Rehabilitation Authority (P L D 1960 Lah. 201) and Muhammad Yousuf v. Assistant Collector of Customs, Karachi and others (P L D 1970 Kar. 97).

11. The learned counsel for the petitioner has relied upon N. M. Khan and another v. The Chief Settlement and Rehabilitation Commissioner, Pakistan and another (P L D 1962 Lah. 468) and Messrs Keays Byrne v. Settlement Commissioner (P L D 1963 Lah. 88) in order to show that the findings of fact given by a Tribunal of exclusive jurisdiction are not sacrosanct in all circumstances and if said tribunal has when arriving on finding of fact misread the evidence or has considered evidence which cannot be considered at all or has failed to consider the evidence which it is bound to consider or should have considered, then the finding of the said Tribunal cannot claim immunity from examination by this Court. No exception can be taken to this principle of law which has been enunciated by the learned Judges in the said cases, but it cannot be said that in the circumstances of the present case, that the decision of the Settlement Commissioner is based on no evidence or is the result of any misreading of evidence. He heard the parties, examined the record and then gave his decision to the effect that the version of the respondents was correct. The said authorities are, therefore, not helpful to the petitioner.

12. In view of the above discussion, there is no force in the writ petition which is hereby dismissed without any order as to costs. S. A. H. Petition dismissed.