1979 SCMR 501 (PLP)

Date of hearing :11th June, 1979. NASIM HASAN SHAH, J.‑This petition is directed against the order of the Peshawar High Court dated 19‑12‑78 dismissing the constitutional petition filed by the petitioner which was directed against the orders of the Deputy Commissioner, Dir, and later confirmed by &g Provincial Govern ment in :he Home Department. The facts, briefly stated, are that one Bawar Khan resident of Sarai Bala Qalash Tehsil Timargarh, District Dir, was the owner of one "pao" of land situate in village Sarai Bala. Bawar Khan's wife had died during his life time and he was issueless. The .petitioner is son of one of the brothers of the said Bawar Khan whereas respondents Nos. 1 and 2 Faizullah and Habibullah are his real uncles being the other brothers of Bawar Khan. According to the petitioner, Bawar Khan had sold the said one "pao" of land to the petitioner for a consideration of Rs. 10,000 on 23‑9‑

73. The petitioner came into possession of the said land as its owner under the aforesaid sale deed. Sometimes later that year, Bawar Khan died and after his death, respondents Nos. 1 and 2 asserted that on his death, the same had devolved upon them as his brothers and that the same may be distributed amongst the three brothers according to Shariat. The matter came up before the Tehsildar Timargarh who with the consent of the parties, made a reference of the dispute to Qazi of Timargarh for a Shariat settlement of the matter. The said Qazi by his decision announced on 5‑4‑74 rejected the claim of the respondents 1 and 2 and declared the petitioner to be the owner of the land in question by virtue of the sale‑deed referred to above. The said decision was then referred to the Qazi‑ul‑Qazat of Dir for con firmation or otherwise. The said Qazi‑ul‑Qazat disagreed with the Qazi of Timargarh and accepted the claim of respondents 1 and 2 vide his order dated 4‑12‑

74. The petitioner assailed the order of Qazi‑ul‑Qazat before the Assistant Commissioner, Timargarh, to whom the decision of Qazi‑ul- Qazat was sent for implementation. The Assistant Commissioner found that the Qazi‑ul‑Qazat had not given a definite finding of his own in the case and he, therefore, forwarded the case to the Tehsildar for a fresh reference to a mutually acceptable Qazi. The matter was then referred to Qazi Fazalur Rehman of Balambat. The said Qazi gave his decision on 27‑6‑75 observing that since the decision under Shariat was available on the file which quite detailed (presumably the reference being to the decision of Qazi Fazalur Rehman of Timargrah), he found that the matter could not be re‑opened having assumed finality. The case was then returned to the Tehsildar who forwarded it to the Assistant Commissioner and the latter agreed with the decision given by Qazi of the Timargarh as endorsed by Qazi of Balambat and accepted the petitioner's ownership over the land in question, vide his order dated 5‑9‑

75. The respondents 1 and 2 feeling aggrieved with order of the Assistant Commissioner challenged it by filing an appeal before the Deputy Com missioner. This appeal was accepted by him who ordered that the property in question be distributed amongst the legal heirs of the late Bawar Khan, namely, his three brothers. This order of the Deputy Commissioner was then challenged by the petitioner before the Additional Commissioner by an appeal who vide his order dated 31‑8‑76 dismissed the said appeal. The petitioner's revision to the Provincial Government was also dismissed vide order dated 2‑4‑

78. His constitutional petition filed against the last mentioned order was also dismissed by the High Court on the ground that the order of the Deputy Commissioner was very clear wherein the order of the Qazi‑ul‑Qazat had been upheld who had found that the case set up by the petitioner was concocted and fictitious and that he had no basis to stand upon and that the disputed property should be distributed amongst the heirs of Bawar Khan. Hence this petition for leave to appeal. Maulvi Sirajul Haq in support of this petition has contended that the 'Dastur‑ul‑Amal' of Dir State is divided into various chapters. Chap ter IV deals with dispute regarding immovable property while the question of inheritance is dealt with in a separate and distinct chapter. The present case was a case regarding the dispute in respect of an immovable property and had to be dealt with under Chapter IV and not dealt with a case of inheritance as dealt with by the Deputy Commissioner and the higher officers. This misc9nception according to him, has resulted in a complete diversion of the case into wrong channels and, therefore, interference is called for. We find that the contention raised before us has not been raised in the Courts below and this position was also frankly conceded by the learned counsel before us. We cannot allow this contention to be raised at this late stage. Otherwise it has been found as a matter of fact that the so‑called sale‑deed which was relied upon by the petitioner was fictitious and concocted document and could not stand in the way of inheritance of the property by the heirs of the deceased Bawar Khan. This finding of fact was rightly not interfered with by the High Court and we also see no ground for interfering with. The upshot is that this petition must fail and is dismissed hereby. Petition dismissed.