IN THE HIGH COURT OF SINDH, KARACHI

Constitution Petition No.D-6607 of 2016

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Date Order with Signature(s) of Judge(s)

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Present:

Aqeel Ahmed Abbasi, J.

Abdul Maalik Gaddi, J.

Haider Gabol

through his lawful attorney

Ajab Khan ……………… Petitioner

Versus

Province of Sindh

& others ……………… Respondents

1. For order on Misc. No.31800/2016.

2. For order on Misc. No.31801/2016.

3. For hearing of Main Case.

Mr. Muhammad Hanif Bhatti, Advocate for the Petitioner.

Date of hearing & Judgment : 15.12.2016

J U D G M E N T

Abdul Maalik Gaddi, J. – Through instant constitution petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has sought following relief(s):-

a) To direct the respondents No.16 & 17 to investigate into the matter and submit the report of such investigation before the Hon’ble High Court and if the respondent No.2 to 15 are found guilty of committing fraud and forgery then reference may be filed against them;

b) To direct the respondents No.2 to 6 to produce all the record of the property in question before the Hon’ble High Court;

c) To direct the respondents No.7 to 15 to stop construction on the property in question till the final disposal of this petition;

d) Any other relief/relieves may be granted by the Hon’ble Court, which may deem fit.

2. The case of the petitioner as setup in the instant petition is that he is one of the legal heirs of Dawood son of Chutto Gabol, who was the owner of the various survey numbers as mentioned in the petition situated in Deh Bitti Amri, Tapo Soghal, Taluka Karachi. It is also averred in the petition that his father Dawood son of Chutto Gabol died on 10.03.1970 and according to him, after the death of his father, respondents No.2 to 6 committed fraud and forgery and fraudulently manipulated the official record and transferred the aforesaid property in favour of respondents No.7, 8, 12 and 15 and now the respondents No.9 to 14 are also claiming right in the property and through this fraud, the petitioner and other legal heirs of the deceased Dawood have been deprived of their legal rights in the property in question. As per the petitioner, he approached to the official respondents to correct the revenue record and take action against the wrongdoer but no action has been taken against them, hence, this petition.

3. Learned counsel for the petitioner has been heard and record perused. Learned counsel for the petitioner during the course of arguments, has reiterated the same facts and grounds, which he has urged in the memo of petition.

4. Through this petition, the petitioner has alleged fraud committed by the respondents in respect of the land owned by his father and sought relief that the legal action be taken against the respondents. It appears from the contents of the petition that the dispute in between the parties relates to the disputed title over subject property, which requires proper adjudication by the relevant forum and the Court of appropriate Civil/Criminal jurisdiction after recording evidence. It is pertinent to mention here that the petitioner in para 3 of this petition himself alleged that forgery has been committed by the respondents in revenue record in respect to the property in question, which according to petitioner was owned by his father. It would be advantageous to reproduce the said para of the petition, which reads as under:-

“3. That Dawood son of Chutto Gabol had died on 10.03.1970, after the death of Dawood son of Chutto Gabol, the respondents No.2 to 6 committed fraud and forgery and fraudulently manipulated the official record and fraudulently transferred the property in question in favour of respondents No.7, 8, 12 and 15 and now the respondents No.9, 10, 11, 13 and 14 are also claiming right in the property in question and through this fraud the legal heirs of deceased Dawood son of Chutto Gabol have been deprived of their legal rights in the property in question.”

From perusal of hereinabove averments, it also appears that disputed questions of facts have been agitated and it is yet to be determined by the competent forum/court, having jurisdiction in such like cases, as to whether the fraud or forgery as alleged, has been committed by the officials respondents with the collusion of private respondents in respect of the land in question or not. It is settled legal position that any aggrieved person, while invoking constitutional jurisdiction of this court under Article 199 of the Constitution, is required to establish a clear legal right, which should be beyond any doubt, whereas, the controversy should not contain disputed facts nor should require recording of evidence and determination of title or any right in a immovable property, which falls within the domain of Civil Court(s) or the forum provided for such purpose. In the light of alleged forgery and fraud, legal right and entitlement of the petitioner have become controversial; therefore, disputed questions of facts as raised in this petition cannot be decided in writ jurisdiction. In our view, aggrieved person has to resort to statutory remedy as provided under relevant statute instead of directly approaching this court while invoking Constitutional jurisdiction of High Court in terms of Article 199 of the Constitution in a routine manner. Such remedy is discretionary in nature and is to be exercised with caution sparingly, only in extreme circumstances in order to secure the ends of justice, when there is no other alternate remedy or forum available for such purpose.

5. When confronted with hereinabove facts and circumstances of instant case, and availability of adequate remedy of filing a civil suit or statutory remedy as provided under relevant revenue laws for redressal of his grievances, the learned counsel for the petitioner could not submit any satisfactory reply. We are of the considered opinion that the controversial/disputed facts agitated by the petitioner through instant petition, cannot be resolved by this Court under constitutional jurisdiction as the same require proper adjudication after recording evidence. In this respect, we would refer to the case of Hon’ble Supreme Court in the case of Kaniz Fatima through Legal Heirs v. Muhammad Salim and 27 others reported in 2001 SCMR 1493. Further reliance can be placed on the case of Pakistan Defence Housing Authority, Karachi v. Shamim Khan through L.Rs and 5 others reported in PLD 2005 SC 792, and Anjuman Fruit Arhtian and others v. Deputy Commissioner, Faisalabad and others reported in 2011 SCMR 279. The Hon’ble Supreme Court in the case of Pakistan Defence Housing Authority, Karachi as (Supra), has recorded following observations, which reads as under:

“Constitutional jurisdiction of High Court---Scope---Controversial question of facts requiring adjudication on the basis of evidence could not be undertaken by the High Court under its Constitutional jurisdiction.”

6. In view of hereinabove, instant petition appears to be misconceived and not maintainable, which was dismissed in limine alongwith listed applications vide our short order dated 15.12.2016, and above are the reasons for such short order. However, the petitioner is at liberty to agitate his grievances, if any, before the appropriate forum/court having jurisdiction in the matter, in accordance with law.

JUDGE

Faizan A. Rathore/