IN THE HIGH COURT OF SINDH
CIRCUIT COURT, LARKANA
Present:
Shamsuddin Abbasi, J.
Agha Faisal, J.
CP D 573 of 2021 : Hakim Ali Abro and others vs.
Farooque Ahmed & others.
For the Petitioner : Present in person.
For respondent No.1 : Mr. Habibullah G. Ghouri, Advocate.
For official Respondents : Mr. Abdul Hamid Bhurgri, Additional
Advocate General along with
Mr. Abdul Waris Bhutto, Asstt. A.G.
Date of hearing : 08.05.2024.
Date of order : 08.05.2024.
ORDER
Agha Faisal, J. The petitioners have judgment dated 30.8.2021 passed by the learned Anti-Encroachment Tribunal, Larkana. The operative portion of the judgment is reproduced herein below:
“As discussed above, Honourable High Court of Sindh, bench at Sukkur also passed order dated 27.04.2021 in C.P. No. D- 92 of 2020 regarding the removal of illegal encroachments from the graveyards of all over the Sindh and directed to all Deputy Commissioner of Sindh to submit the compliance report. The official defendants must execute the order dated 27.04.2021 passed by the Honourable High Court of Sindh, bench at Sukkur in C.P. No. 92 of 2020. The plaintiff proved his case and illegal encroachment found agaisnt the private defendant Nos. 01 to 05, hence plaint is allowed and following Orders are passed:
i. The private defendant Nos.1 to 5 are directed to remove the constructed 06 shops situated at main road of Nazar Muhalla towards Larkana to Nasirabad road as well as constructed 04 shops by Hakim Ali Abro and other defendants (his sons) over an area of graveyard and 03 shops and 01 Cabin constructed over the area of Eidgah Nazar Muhalla Road Larkana, which is situated beside the graveyard and one residential house is also constructed on upper portion of shops, within 30 days from date of this Order and handover its peaceful and vacant possession to the Mukhtiarkar Larkana/ Authorities Municipal corporation Larkana.
ii. And, if encroachers failed to do so, after stipulated period, the Assistant Commissioner/ deputy Director Anti-Encroachment Force Taluka Larkana, Mukhtiarkar Taluka Larkana and Municipal Authority, jointly shall vacate the above said estate land, and retrieve its possession from the above private defendant nos. 1 to 5.
iii. Recovered costs of demolition and removal of structure and arrears of rent from encroachers shall be deposited in Sindh Government Treasury, as land revenue.
iv. The concerned police shall provide foolproof security to official at the time of Anti-Encroachment drives as when required.
v. In future, if same state land and public property is encroached, the land officials defendants specially, i.e. the Assistant Commissioner/ Deputy director Anti-Encroachment force Taluka Larkana, Mukhtiarkar Taluka Larkana and Municipal Authority, would be held responsible and would be prosecuted under Section 3 (4) of Sindh Public Property (Removal of Encroachment) Act, 2010, and other prevailing law of land.
vi. The Deputy Commissioner Larkana/ director Anti-Encroachment Cell Larkana, shall execute this Order.
The petitioner was directed to identify and infirmity in the judgment impugned, however, he failed to do so. He was also confronted as to how a writ petition could be entertained in such matters; once again he remained at a loss for any cogent reason.
The law, Sindh Public Property (Removal of Encroachment) Act, 2010, does not provide for an appeal against the judgment impugned and under such circumstances no such right could be presumed[1]. The said circumstances squarely attract the observations of the Supreme Court, in the case Gul Taiz Khan Marwat[2], reiterating settled law that an appeal is an creation of statute and in the absence of any such remedy being provided none can be presumed. Automatic recourse to writ jurisdiction in matters where appeal has been precluded has been deprecated by the Supreme Court as it could be construed as defeating manifest legislative intent. Constitutional jurisdiction is equitable and discretionary in nature and should not be exercised to defeat or bypass the purpose of validly enacted statutory provisions[3].
It is settled law that the ambit of a writ petition is not that of a forum of appeal, nor does it automatically become such a forum in instances where no further legal recourse is provided or precluded by the law[4], and is restricted inter alia to appreciate whether any manifest illegality is apparent from the order impugned. No such infirmity could be identified before this court in the order impugned.
The Supreme Court observed in Arif Fareed[5] that the objective of Article 199 of the Constitution is to foster justice, protect rights and correct any wrongs, for which, it empowers the High Court to rectify wrongful or excessive exercise of jurisdiction by lower courts and address procedural illegality or irregularity that may have prejudiced a case. However, it is emphasized that the High Court, in its capacity under Article 199, lacks the jurisdiction to re-examine or reconsider the facts of a case already decided by lower courts. The judgment in Hamad Hasan[6] deprecated such a tendency in no uncertain words and maintained that it was impermissible for Constitutional jurisdiction to be substituted for appellate jurisdiction.
No jurisdictional defect has been demonstrated in the judgment impugned, therefore, no case for invocation of writ jurisdiction is made out. In view hereof, this petition is found to be misconceived, hence, dismissed.
Judge
Judge
[1]Since the statute, Sindh Public Property (Removal of Encroachment) Act, 2010, admittedly contains no provision in such regard.
[2]Per Ijaz ul Ahsan J in Gul Taiz Khan Marwat vs. Registrar Peshawar High Court reported as PLD 2021 Supreme Court 391.
[3] President All Pakistan Women Association vs. Muhammad Akbar Awan reported as 2020 SCMR 260.
[4]Per Ijaz ul Ahsan J in Gul Taiz Khan Marwat vs. Registrar Peshawar High Court reported as PLD 2021 Supreme Court 391.
[5]Per Amin ud Din Ahmed J in Arif Fareed vs. Bibi Sara & Others reported as 2023 SCMR 413.
[6]Per Ayesha A. Malik J in M. Hamad Hassan v. Mst. Isma Bukhari & Others reported as 2023 SCMR 1434.