P L D 1984 Peshawar 176 (PLP)

MUHAMMAD ISHAQ KHAN, J‑This Order in W. P. No. 422/81 will also dispose of connected W. P. Nos. 423/81, 432/ 1. and 543/82, as common questions of law and fact are involved in all the four writ petitions.

2. In W. P. No. 422 of 1981, Hassan Noor and five others have chal lenged the orders of respondents 2, 3, 4 and 5, namely, Judicial Council, Chitral : Deputy Commissioner, Chitral ; Additional Commissioner, Mala kand Division and Additional Secretary, Government of N: W. F. P., Home and Tribal Affairs Department, Peshawar. The grievance of the petitioner is that they are the owners of different parcels of land measuring about 27 `chakoram' situate in village Lusht, Tehsil and District Chitral, and that the impugned orders passed by the aforementioned respondents 3, 4 and 5 dated 21‑1‑1978, 23‑1‑1980 and 22‑10‑1981 be declared as without lawful authority and of no legal effect, and the petitioners be declared as owners. In W. P. No. 423/81, Ghulam Hussain and 9 others have challenged the orders of Judicial Council, Chitral ; Deputy Commissioner, Chitral; Additional Commissioner, Malakand Division and Additional Secretary Home. The petitioners have claimed ownership of different parcels of land measuring 72 `chakoram' situate in different Lusht and Shato‑khora, Tehsil and District Chitral. In W. P. No. 432/81, Ajab Khan and five others have similarly claimed ownership of different parcels of land measuring 55 `chakoram' in villages Lusht and Shatu‑khora, Tehsil and District Chitral. In W. P. No: 543/82, Dana Khan and 2 others have claimed owner ship of different parcels of land situate in village Lusht, Tehsil and District Chitral.

3. The following points were urged by Mr. M. Sardar Khan, learned counsel for the petitioners in W. P. No. 422/81, which were adopted in the other writ petitions :‑ (1) That under the customary laws of Chitral (then prevailing), all cases of civil nature instituted before the Deputy Commissioner were first referred for enquiry to S. D. A. and upon receipt of his report were sent by the Deputy Commissioner, to the Judicial Council and the report of the S. D. A. was sine qua non for further proceedings by the Judicial Council and since in the case in hand, no such enquiry was made nor any report sent to the Deputy Commissioner by the S. D. A., therefore, on the application of Shahzada Burhanuddin, reference to the Judicial Council was in violation of the customary law and void. (2) That the Judicial Council did not give any reasonable and fair opportunity to the petitioners and, therefore, the entire proceedings were void ; and (3) That the proceedings before the Judicial Council were biased.

4. We have also heard the learned counsel for the respondent (Mr. Zahoor‑ul‑Haq, Bar‑at‑Law) and have perused the record with great care. The first point worth consideration is that four writ petitions were filed by the same parties in this Court, which were dismissed by a judgment of the Division Bench, reported in Hassan Noor and 5 others v. Deputy‑, Commissioner. Chitral and 2 others (P L D 1975 Pesh, 196). These writ petitions were decided on the 1st of April, 1975. The only point urged in these writ petitions was that the order of the Deputy Commissioner, Chitral, dated 16‑10‑1973 by which he took cognizance on an application filed before him by Shahzada Burhanuddin Khan, respondent, and earmarked to S. D. A. Chitral for enquiry with the direction that his consequent report should be submitted to him within ten days, was without lawful autho rity. The only contention raised in the reported case was that after coming into being in the former State of Chitral of Regulation No. I of 1974, the Deputy Commissioner had no jurisdiction to take cog nizance of all subsequent proceedings based on the order of Deputy Commissioner dated 16‑10‑1973. As mentioned earlier, these writ petitions were dismissed on 1‑4‑1975.

5. It is relevant to remark that the Judicial Council forwarded its recommendations to the Deputy Commissioner on 11‑10‑1974, copy appended to the writ petition as Annexure 'J'. As such the petitioners are not entitled in law to re‑agitate their grievances against the recommenda tions of the Judicial Council in a second writ petition, which they had not challenged in W. P. No. 361/74 alongwith 3 other writ petitions, which was still pending in this Court. This being the position, the attack against the Judicial Council "hat it was biased and that it had not given proper hearing to the petitioners and that in the absence of enquiry by the S. D. A., the proceedings before the judicial Council were illegal, is not available to the petitioners in the second writ petition. Reliance can conveniently be placed on the authorities reported in Mirza Muhammad Yaqub v. The Chief Settlement Commissioner, Lahore and another (P L D 1965 S C 254), Muhammad Suleman and another v. Settlement Authorities and others (1969 S C M R 162) and Abdul Ghafoor v. Settlement and Rehabilitation Commissioner, Karachi and 3 others (1971 S C M R 602). The gist of the above authorities is that a litigant is not allowed to split up his grounds to seek relief in respect of same cause of action and make different petitions at different times.

6. Coming to the second contention of the learned counsel for the petitioners that the Judicial Council did not give them a fair opportunity, it is held that the contention is without any force. The order sheets will sufficiently demonstrate the factual position that the petitioners were given every opportunity to defend their cases, but assuming for the sake of arguments without conceding that their grievance was genuine, then the same lacuna got cured when the matter went up in appeal‑ to the Additional Commissioner, Malakand Division who disposed of the appeal on 23‑1‑1980. The order of the learned Additional Commissional (respondent No. 4) sufficiently demonstrates the factual position vis‑a‑vis the grievance of the petitioners that the members of the Judicial Council did not give proper opportunity to the petitioners for hearing and also that the members of the Judicial Council were biased against them. To crown it further, the. petitioners preferred a revision‑petition before respondent No. 5, who, by his detailed order, dated 22‑10‑1981, dismissed the same dealing, in full details, with the allegations raised by the petitioners. On this view of the matter, we get support from a Full Bench authority reported in Muhammad Ishaq and another v. Dr. Saiduddin Swaleh and another (P L D 1959 (W P) Kar. 669) wherein the observations made run as under "Natural justice‑Denial of bearing in Court of first instance, but party heard by appellate or revision Court‑Whether constitutes failure of natural justice. Where a party was not given an opportunity to show cause and so was not heard by the Court of first instance, before passing an adverse order, no notice being required by statute, but the party was heard by the appellate or revisional authorities, and the question was whether the order should be set aside as void for failure of natural justice on the ground that it was passed without an opportunity to show cause being granted : Held, (by Kaikaus, J., Wahiduddin Ahmad, J. agreeing) that it will have to be determined in each case whether the principle of natural justice has been sufficiently complied with on account of an opportunity of hearing before an appellate or revisional authority. The fact that the original order was passed without notice did not necessarily mean that the order was to be set aside."

7. With regard to the allegation that the order of the Deputy Com missioner sending the ease to the Judicial Council directly without refer ring to the S. D. A. is factually not correct, a perusal of the application of respondent No. 1 annexed to the writ petition carries the following order :‑ "SDA. Chitral for enquiry and report within ten days. D. C. Chitral." Even otherwise the aforementioned ground regarding the sending of the case to the Deputy Commissioner, Chitral with the report of the S. D. A. was neither taken in appeal to the Additional Commissioner, nor taken in the revision petition before the Additional Home Secretary and as referred to earlier, was never the ground taken in Writ Petition No. 361/74 alongwith three other writ petitions, dismissed vide judgment of this Court reported in P L D 1975 Pesh.

196. In our view, the petitioners are, therefore, not permitted by law to take this ground for the first time in the present writ petition‑a point which was never agitated before the lower Courts. Reliance is placed on Syed Alarn Hussain and others v. Syed Shamim Akhtar and another (PLD1974SC100).

8. In the case in hand, there is a concurrent finding of facts by the, four forums, namely Judicial Council, Deputy Commissioner, Chitral, Additional Commissioner, Malakand Division and Additional Home Secretary, N.‑W. F. P. In such a situation, High Courts and the Supreme Court seldom interfere with such a concurrent finding of facts in writ jurisdiction. If any authority is needed on the point, the authority reported in Muhammad Aslant Khan v. Atta Muhammad and 8 others (1969SCMR16) can be cued with advantage, wherein it was held as under :‑ "Constitution of Pakistan of Pakistan (1962), Art. 98‑Question of fact- Concurrent finding by Tribunals below‑Finding cannot be disturbed unless based on no evidence‑High Court, held, justified in not going behind finding in writ jurisdiction‑Special leave to Appeal to Supreme Court, refused." Besides above, the grievance of the petitioners raised in the writ petitions pertains to title of the land and the superior Courts seldom entertain such petitions particularly when complicated questions of facts are involved therein. Syed Saghir Ali v. Mehar Din and others (1968SCMR 145) is a direct authority in support of our view, which lays down as under :‑ "Constitution of Pakistan (1962), Art. 98‑Writ‑Disputed questions in volving investigation into facts‑Cannot be decided by short‑handed method of writ‑Such questions should be properly raised in suit for decision on basis of evidence and in relation to issues drawn out of pleadings."

9. The net result of the discussions gone before is that we find no force in the present four connected writ petitions, which are hereby dismissed, with no order as to costs. M. Z. M. Petition dismissed.