P L D 1972 Rev (PLP)

The brief facts of the case are that one Ghulam Chaus held horse‑breeding tenancy comprising square No. 15, Killas Nos. 20 to 24, square No. 20, Killas Nos. 9 to 13 and square No. 21, Killas Nos. 4 to 25 total area measuring 25 acres in Chak No. 35/12‑L, Tehsil and District Sabiwal. The said Ghulam Ghaus was murdered in 1953. According to his letter No. 8/139/11‑A, dated 14‑3‑1955, the District Remount Officer was in favour of allotment of the tenancy to Sami Ullah the only son of the deceased. But he was not acceptable to the D. C. vide his Memo. No. 687/Cly., dated 25‑4‑1955, as he was involved in the murder of his father. The allotment was therefore made by the D. C. on the revised recommendation of D. R. O. in the name of Mst. Inayat Begum for a period of 4 years on compassionate grounds in consideration of her being the only person to look after the family consisting of two marriageable daughters and a son, vide D.C.'s order dated 8‑6‑1955. It was noted in the D. C.'s order that this allotment would not be quoted as a precedent in future for allotment of tenancy of this nature. The lease con tinued to be renewed in the name of Mst. Inayat Begum from time to time, obviously as she continued to fulfil the conditions of the lease.

2. Mst. Inayat Begum died in 1969. The case for the allotment of the tenancy was again taken up. The District Remount Officer recommended Sami Ullah vide his memo. No. 8/ 139/Camp dated 16‑7‑1969. The Colony Assistant returned it to D. R. O. to consider other contestants also. The District Remount Officer repeated his recommendation in favour of Sami Ullah, on the grounds of the Government orders contained in Memo. No. 868, dated 19‑2‑1952 which lays down preference should be given to the heirs of the deceased breeder. This matter came up before D. C. Jaffery in a regular hearing who vide his order dated 30‑3‑1970 referred the case back to District Remount Officer directing him to recommend a suitable person other than Sami Ullah after summoning all other candidates. Sami Ullah filed an appeal before the Commissioner against this order which was dismissed by the Commissioner on 1‑6.1970 with a direction to the Collector that he may also bear Sami Ullah and pass orders on merits Sami Ullah filed a revision before the Board of Revenue. That too was rejected with the stipulation that the Collector should hear Sami Ullah and decide the case on merits in accordance with the orders and instructions applicable to such cases.

3. In persuance of the orders of the Collector dated 30‑3‑1970 the District Remount Officer forwarded the names of the following persons in order of priority. (i) Sub. Muhammad Asghar, (ii) Sub.‑Major Muhammad Yaqub and (iii) Havaldar Muhammad Hussain, vide his Memo. No. 8/139‑Camp dated 23‑4‑1970. The Collector heard the recommendees of the District Remount Officer as well as Mst. Sofia Begum and Sami Ullah, the daughter and son of the deceased horse‑breeder. The Collector after going into the merits of the candidates including Sub. Muhammad Asghar respondent, allotted the tenancy in the name of Mst. Sofia Begum daughter of the deceased horse‑breeder considering her to be the most deserving and rightful candidate, vide his order dated 6‑4‑1971.

4. Four aggrieved persons namely Sub. Mohammad Asghar, Sami Ullah, Havaldar Muhammad Hussain and Sub.‑Major Mohammad Yaqub went in separate appeals before the Commis sioner, Multan Division, against the order of the Collector dated 6.4‑1971. The Commissioner vide his order dated 18‑6‑1971 held that the tenancy which was allotted to Mst. Inayat Begum was for a limited period in order to enable the widow to look after her children and marry away her daughters and that this was not a regular grant in favour of the heirs of the deceased per son but only on compassionate grounds. Sami Ullah petitioner was also excluded considering him undesirable, having taken part in instigating the murder of his father. The recommendation of the District Remount Officer was given due weight in case of other recommendees and accordingly Sub. Muhammad Asghar, respondent was selected as most eligible person for the allotment of the disputed land.

5. Now Mst. Safia Begum has come up in appeal and Sami Ullah and Muhammad Hussain have come up in revision before the Board of Revenue against this order of the Commissioner dated 18‑6‑1971.

6. The learned counsel for Sami Ullah, Mst. Safia Begum and Havaldar Mohammad Hussain have argued before me about the claims of their respective clients in considerable detail.

7. I do not find that Havaldar Mohammad Hussain's claim could be given much weight as in his recommendation dated 23‑4‑1970, the D. R. O. has clearly stated about Havaldar Mohammad Hussain that his "knowledge and experience regard ing breeding and animal management is poor as compared with serials 1. (Sub. Mohammad Asghar) and 2. (Sub.‑Major Mohammad Yaqub) above. I do not consider him suitable candidate for the grant. Hence not recommended." The learned counsel for Mohammad Hussain has not been able to advance any grounds which could be given due consideration to upset the recommendation of the D. R. O. and the orders of the Collector and Commissioner which ignored his claim. It is also alleged by the counsel for Sub. Muhammad Asghar that Mohammad Hussain is settled in Burki near Lahore under the Border Allotment Scheme where his residence is compulsory.

8. The main claim of Mst. Safia Begum is based on the instructions of the Govt. which lay down that preference should be given to the heirs of the deceased, which apparently weighed with the Collector when he allotted the grant in her favour. But there are two weighty reasons for making an exception in this case and not allotting her the tenancy namely : (i) The District Remount Officer in his Memo. of 23‑4‑70 did not consider her suitable, although her claim was before him for consideration. (ii) She is a young girl of marriageable age and it could not be expected that she will be able to fulfil the spirit of the Govt.'s intentions behind grants for horse‑breeding.

9. The main claims of Sami Ullah are based on two basic grounds namely (i) That he is the son of the deceased Mst. Inayat Begum and also the son of the earlier deceased Ghulam Ghaus. (ii) He had been recommended by the District Remount Officer before the Collector's order dated 30‑3‑1970, debarring him from consideration.

10. The learned counsel for Sami Ullah has quoted Govt. instructions and various rulings to prove that Sami Ullah being the heir of the deceased has to be given preference, and that D. R. O.'s recommendation should normally be accepted. There are, however, certain difficulties in accepting his claim for this grant.

11. It is conceded by the learned counsel that Sami Ullah was directly involved in the murder of his father. It is stated that he engaged 2 assailants for the murder and paid them with ornaments. The learned counsel has tried to contend that since he had been already pardoned by the State as an approver, no disability could be attached to him. In rebuttal of this argument, it has been contended on behalf of other claimants that Shariat Law is very clear on the subject and according to Sunni Law by which he is governed he is not entitled to inheritance (section 58 Mohamedan Law by Mulla). The learned counsel for Sami Ullah has in this regard stated that it was not a question of inheritance but that of a Govt. grant and that Muslim Law of inheritance would not be applicable to a terminable lease of this nature. He has also produced a copy of Jama Bandi for the year 1967‑68 to show that inheritance was mutated in favour of Sami Ullah alongwith other heirs. I have seen mutation No. 165 and find that there is no mention either in the report of the Patwari or Lambardar or the Revenue Officer's attesting order that Sami Ullah was involved in the murder of his father. The report of the Patwari dated 30‑3‑1954 only states that Ghulam Ghaus had been murdered on 3‑11‑1953. His heirs were available in accordance with the pedigree table. He was, therefore, proposing the mutation accordingly. This was considered, in the usual manner, by the Revenue Officer and decided in favour of the heirs noted by the Patwari, vide Revenue Officer's order dated 11‑4‑1954. The sanction of the mutation can, however, have no limitation on the operation of the Muslim Law as such, which is clear and lays down that under the Sunni Law a person who has caused the death of any, whether Intentionally or by mistake, negligence or accident is debarred from succeeding to the estate of the other. It is true that this is not a case of succession to estate. But the question that arises is whether in an Islamic State the clear mandates of Islamic Law should be ignored altogether and that they should not have any bearing on the Govt. In exercising its rights and discretions in awarding a grant. If the petitioner Sami Ullah had been acquitted of murder by the Court it would have been a different matter. But in this case the petitioner has turned approver by confessing his guilt and this moral stigma of being responsible for the murder of his father must attach all his life.

12. The learned counsel for Sami Ullah, has also contended that Sami Ullah was very young when the murder took place and that this is not a case of succession to the tenancy of Ghulam Ghaus, the father of the petitioner but that of succession to the mother Mst. Inayat Begum. This argument however amounts to splitting of heir Mst. Inayat Begum was not a grantee in her own rights but had succeeded to the grant of Ghulam Ghaus on compas sionate grounds as a special case (without the precedent being quoted) as Sarni Ullah at that time also was considered debarred from succeeding to the grant of his father the original allottee. In this regard the learned counsel for Sub. Muhammad Asghar has argued that Sami Ullah was now estopped from claiming tenancy from his mother's side because he did not apply for the tenancy on the death of his father Ghulam Ghaus and the disqualification that accrued to him at that time would be applicable even now, although it may be shown as a succession to his mother's grant.

13. The learned counsel for Sami Ullah also contended that Sami Ullah being pardoned by the State is no longer to be treated as an accused but as a witness. This would be so under the Criminal Procedure Code. He also contended that nowhere in the qualifications for the grant or disqualifications for the grant it had been laid down that an approver was disqualified from holding a grant. It would technically be so. But to my question as to what was the status of an approver under the Shariat Law, the learned counsel for Sami Ullah could not give a straight answer except for quoting that under the Criminal Procedure Code he did not suffer from the handicap of being treated as an accused, and having been discharged by the Court he did not suffer from any handicaps. It is apparent, that there is no link between the Criminal Procedure Code and the Shariat Law in this matter. Whereas the Shariat Law is clear with regard to the disability of a person involved in murder with regard to inheritance, the Criminal Procedure Code which does not cover laws of succession etc. is silent on the subject.

14. With regard to the point that Sami Ullah was recom mended by the District Remount Officer, the perusal of the records some of which have been quoted in this order have indicated that the D. R. O. from the beginning was being guided by the orders issued in this behalf, by the Board of Revenue Govt. regarding succession to Horse‑breeding Grants which laid down that preference should be given to the heirs of the deceased grantee if he had been fulfilling the conditions of the grant. The D. R. O. had not taken into account the involvement of Sami Ullah in the murder of his father and as early as March 1955, soon after Sami Ullah had been accepted as an approver, he made his recommendation in favour of Sami Ullah for the allotment of the grant. His subsequent recommendations on the death of Mst. Inayat Begum were therefore, also guided by the same orders of the Govt., as on earlier occasions. As I have observed earlier, the circumstances in this case are such that an exception has to be made to the general orders of succession laid down in Memorandum No. 868, dated 19‑2‑1952.

15. The learned counsel for Sami Ullah has taken exception to the portion of Commissioner's order viz. "this was in 1955 but somehow the widow continued to have the lease extended till her death in 1969" and has pointed out that under the terms of the lease, the lease once granted has to be renewed every three years, if the grantee continues to fulfil the conditions of the grant. This is correct. The Commissioner, apparently, had overlooked this fact. But it has no material bearing on the question as to who should be given the grant after Mst. Inayat Begum's demise.

16. With regard to the claim of Sub. Muhammad Asghar, the learned counsel for Sami Ullah has contended that he has been recommended by the District Remount Officer only after Sami Ullah was excluded by the explicit order of Collector dated 30‑3‑1970. Sub. Muhammad Asghar has 10 acres of land in Thal under the Refugee Resettlement Scheme under peasant grant for which residence is compulsory. In this regard, however, Sub. Muhammad Asghar has produced a copy of Memorandum No. 7778/617/III/WR‑I, dated the 3‑8‑1970, from G. H. Q. in which the G. H. Q. itself while stating that Sub. Mohammad Asghar has 10 acres of land in the Thal strongly recommended him for allotment of stud land. It is obvious, therefore, that the G. H. Q. is condoning the requirement of his residence in the Thal. In this regard the learned counsel for Sub. Mohammad Asghar has also contended that if his Thal grant is cancelled because of his residence in Chak No. 35/ 12‑L, where the Horse‑breeding Grant is situated, that will be his loss with which the other claimants were not concerned.

17. The learned counsel for Sami Ullah has also contended that brothers of Sub. Mohammad Asghar also have grants and that it was not equitable that all Government grants should be showered on one family. This is a far‑fetched argument. The brothers of Sub. Mohammad Asghar are independent families and their holdings cannot be taken into account in determining the claim of Sub. Mohammad Asghar. The Horse‑Breeding s Grant is further for a specific purpose for maintaining and breeding horses and is not to be treated as a charity by the Government.

18. It has been contended by the learned counsel for Mohammad Hussain that Sub. Mohammad Asghar has no experience of horse‑breeding as in his application he has not claimed so. The D. R. O. on the other hand, has in his recom mendation dated 23‑4‑1970, stated that Sub. Mohammad Asghar, "has good experience of animal‑breeding and animal management".

19. The learned counsel for Sub. Mohammad Asghar has contended that Sub. Mohammad Asghar is a resident of Chak No. 35/12‑L, the Chak in which the grant is situated, has been a B. D. Member of the Chak for the last 10 years is a law‑abiding citizen and has been trying for this grant since 1969, when finally he was recommended by the District Remount Officer. He does not suffer from any handicap and is therefore, a fit person to get the grant.

20. I have given considerable thought to all the arguments advanced on behalf of the contestants and have come to the conclusion that the orders of the Board of Revenue/Govt. with regard to succession of Horse‑Breeding Grant cannot ipso facto be made applicable in this case, and that there are circumstances in this 4 case, discussed above, which justify an exception being made to the general policy laid down by the Board /Govt. in regard to succession, on which reliance has been placed by the learned counsel for Sami Ullah and Safia Begum.

21. In view of these considerations I uphold the order of the Commissioner whereby he allotted the grant in question to Sub. Mohammad Asghar and reject the appeal and revision petitions accordingly. Parties may be informed and orders issued accordingly. Order accordingly.