2020 PLP 2052 (CLC)

ROZI KHAN BARRECH, J.

The instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter "the Constitution") carries the following prayer clause: "A) By declaring that the act of the respondents Nos. 1 to 7 is illegal, by means of which they; are interfering in the property in dispute property Khushkaba Bazigir, measuring

, bounded as East:- Dahico, West: - Mountain, North : Arzghrodo Mountain, South : - Wapsi Zaro. B) To direct the respondents Nos. 1 to 7 to stop interference in the property of in land in dispute, which will otherwise cause loss and injury to the petitioner and other shareholders therefore, the respondents are not entitled to making any kind interference in the property in question. C) To direct the respondents Nos. 1 to 7 and their tribesmen / companions for removing the construction material from the property in question and not to make any sort of interference in the property in question in future. D) Respondents Nos. 8 and 9 be directed to take strict legal action against the respondents Nos. 1 to 7 for restraining them from illegal interference / encroachment over the property in question. E) Any other relief which this Hon'ble deems fit and proper may also be extended in favour of petitioner in the interest of justice equity and fair-play.

2. The petitioner has filed the instant constitution petition with the averments that he is a legal and lawful co-owner/co-sharer of property Khushkaba Bazigir (hereinafter "property in question"); that predecessor in interest of petitioner being representative of Zehri tribe purchased the property in question from the head of Kurd tribe namely Khair Muhammad Kurd about 125 years back, and in this regard an agreement was also executed in Farsi. It is contended that sometimes back the respondents Nos. 1 to 7 started illegal interference in the property in question and dumped the construction material over the property in question and tried to start construction of boundary wall over it. It is further contended that the petitioner and his elder tribesmen approached the respondent No. 9 for taking action against respondents Nos.1 to 7 but respondent No.9 being under influence of respondent Nos. 1 to 7 did not take action against them. Hence, this petition.

3. I have heard the learned counsel for the petitioner and have gone through the available record.

4. The perusal of record shows that the instance taken by the petitioner and documents attached with the petition establish the fact that there are certain controversial questions involved in the matter, which cannot be resolved while exercising constitutional jurisdiction of this court, however, fate of the instant petition cannot be decided on basis of such documents authenticity whereof can only be determined and established before a civil Court and it requires a full-fledged enquiry and scrutiny, that too, after providing full opportunity of hearing to both the parties.

5. Another moot question, which requires determination by this Court, is that whether in presence of alternate remedy, the instant writ petition is maintainable? In this. regard, I am of the view that constitutional jurisdiction of this Court cannot be invoked in all matters as a matter of right, rather such jurisdiction has certain circumventions, which the Court is required to keep in view, while exercising its extraordinary jurisdiction. Availability of alternate remedy is one of the limitations, which bars exercise of constitutional jurisdiction by this Court. If any case-law is required, reference can safely be made to the case of "Rana Aftab Ahmed Khan v. Muhammad Ajmal", (PLD 2010 SC 1066) wherein it was observed that. "We have considered the above and are constrained to hold that the constitutional jurisdiction (reference Article 199) of the High Court in all the cases cannot he invoked as a matter of right, course or routine, rather such jurisdiction has certain circumventions which the Court is required to keep in view while exercising its extraordinary discretionary powers, as the conditions mentioned in Article 199 of the Constitution are obviously meant for the purposes of regulation of the Courts jurisdiction and the availability of "other remedy" is one of such limitations." Admittedly, there are certain controversial questions, which cannot be resolved in exercise of constitutional jurisdiction as a thorough probe and investigation would be needed to set the controversy at rest, particularly when a specific allegation of foul play on the part of the respondents has been leveled by the petitioners. It is well settled by now that the superior Courts should not indulge in investigation of disputed questions of fact, which necessitate taking of evidence. This can more appropriately be done in the ordinary civil procedure for litigation by a suit. The extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts. Controversial questions or facts adjudication on which is possible only after obtaining all types of evidence in power and possession of parties can be determined only by Courts having plenary jurisdiction in matter an on such ground constitutional petition is not maintainable. While invoking constitutional jurisdiction it is mandatory for a patty to establish a clear legal right which should be beyond any doubt and controversy. In the light of alleged foul play, as pointed out by the petitioner, the legal right and entitlement of the petitioner is controversial and such disputed questions of fact cannot be decided in constitutional jurisdiction. In this respect reference can be made to the case of "Secretary to the Government of the Punjab v. Ghulam Nabi (PLD 2001 SC 415), wherein it was held that: "It hardly needs any elaboration that "the superior Courts should not involve themselves into investigations of disputed question of fact which, necessitate taking of evidence. This can more appropriately be done in the ordinary Civil Procedure for litigation by a suit. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts" Thus, in view of the above, the case of petitioner is not maintainable, as such, dismissed in limine with no order as to costs. ZC/111/Bal. Petition dismissed.