P L D 2021 Balochistan 15
Before Muhammad Kamran Khan Mulakhail, J
NAIMATULLAH and 11 others ---Petitioners
Versus
FAIZULLAH and 2 others ---Respondents
Civil Revision No. 209 of 2011, decided on 19th November, 2020.
(a) Civil Procedure Code (V of 1908) ---
----O.XLI, R.31(a) ---Term 'points for determination'--- Scope ---Term 'points for
determination' refers to all important questions involved in case; it does not include points
which have been abandoned or which are not necessary for disposal of case .
Muhammad Yousaf alias Bala v. Khuda Dad 2004 MLD 1107 and Ali Hassan v. Sher
Muhammad and another 2007 CLC 969 ref.
(b) Balochistan Civil Disputes (Shariat Application) Regulation, 1976 ---
----Constitution of Pakistan, Art. 247 (as omitted by 25th Constitutional Amendment Act, 2018) ---Suit for declaration and injunction--- Shariat Court ---Jurisdiction ---Defendant was
aggrieved of concurrent judgments and decrees passed in favour of plaintiff by Trial Court and Lower Appellate Court constituted under Bal ochistan Civil Disputes (Shariat
Application) Regulation, 1976---Validity ---Provisions of Balochistan Civil Disputes (Shariat
Application) Regulation, 1976, was promulgated and was extended to tribal area of Balochistan by exercising powers conferred under Art. 247 of the Constitution, which was no
more part of the Constitution in view of 25th Constitutional amendment ---After newly
emerged situation, tribal areas were no more in existence---Neither powers conferred upon the President of Pakistan, in respect of Federally Administered Tribal Areas nor upon
Governor of Balochistan in respect of Provincially Administered Tribal Areas were available and such powers could not be exercised anymore ---For merged areas High Court had already
ordered that all litigatio ns pending before Trial Courts and appeals/revisions pending before
Lower Appellate Courts exercising jurisdiction under Balochistan Civil Disputes (Shariat Application) Regulation, 1976, stood transferred to ordinary civil Courts constituted under Balochi stan Civil Courts Ordinance, 1962---High Court set aside judgment and decree passed
by Lower Appellate Court which was no more in existence and had become functus officio and case was remanded for decision of appeal afresh ---Revision was allowed accordingl y.
Gul Hassan Tareen for Petitioners.
Tariq Mehmood Butt and Abdul Ghani Sherani for Respondents Nos.1 to 3.
Date of hearing: 20th August, 2019.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This Civil Revision Petition
is directed against the Judgmen ts and Decrees dated 24.12.2010 and 28.04.2011, respectively
passed by the Qazi Zhob, Sherani ("trial Court") and the Majlis -e-Shoora, Zhob ("appellate
Court"), whereby, suit filed by the petitioners was decreed and appeal filed thereon was also
dismissed (Both referred hereafter as "impugned judgments").
2. Brief facts of the case are that the respondents filed a suit for "Declaration and
Permanent Injunction" averring therein that a suit property (property in dispute) was their ancestral property on the s trength of entries in "Aks -e-Shajra Kishtwar" recorded in the year
1952; that in the year 2008, the petitioners started interference in the property in dispute and
were intending to forcibly take the possession, when an FIR was also lodged against them;
that time and again the petitioners were asked to refrain from undue interference, but no heed
was paid. Thus, having no other alternative, an original jurisdiction of the Qazi's Court was invoked by filing the aforesaid civil suit.
That after service of no tice, the petitioners entered appearance and contested the suit
by way of filing a written statement, on legal, as well as, on factual grounds. In view of divergent pleas raised by the respective parties, the trial court framed the following issues: -
Both the parties produced their respective evidence. On conclusion of evidence, the
trial court decreed the suit. The petitioners being aggrieved, preferred an appeal before the
Majlis -e-Shoora, Zhob. The learned appellate court in order to ascertain the factual position,
appointed a local commissioner for inspecting the site. On receipt of report, the statement of local commissioner, was recorded as CW- 1, thereafter, the learned appellate court, after
hearing the parties, dismissed the appeal vide judgment dat ed 28th April 2011, hence this
petition.
4. I have heard the learned counsel for the parties at reasonable length and have also
gone through the record, with their able assistance.
Learned counsel for the appellant at the very outset stated that the impugned
judgments are based on non -reading and mis -reading of evidence, while the appellate court
also did not formulate the points as required under Order XLI, Rule 31, C.P.C., nor passed a speaking order, therefore, committed illegality and irregularity. Learned counsel placed reliance on the following judgments:
Muhammad Yousaf alias Bala v. Khuda Dad (2004 MLD 1107).
Ali Hassan v. Sher Muhammad and another (2007 CLC 969).
Conversely, the learned counsel for the respondent submitted that the trial court has
passed a well speaking order, after discussing each and every issue, which was rightly upheld by the appellate court, while the report of local commissioner also supported the respondent's
claim. He while, supporting the judgments of the courts bel ow, urged for dismissal of the
petition.
5. On perusal of the case file, it shows that the learned appellate court during pendency
of the appeal, appointed a local commissioner for inspection of the site. The local
commissioner appeared as CW- 1, who produc ed his report as EX -C/1-A. However, after
going through the judgment of the appellate court, it is observed that the learned court without formulating points for determination and even discussing the evidence and the report of local commissioner, passed the impugned judgment dated 24th December 2010. The appellate court was bound to formulate the points as envisaged under Order XLI, Rule 31, C.P.C., which stipulates:
"Order XLI, Rule 31, C.P.C. Contents, date and signature of Judgment.--- The
Judgment of the Appellate Court shall be in writing and shall state --
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is ent itled,
and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein"
The wisdom of law in requiring mandatorily formulation of the points for
determination seems to be the fact that the appellate Court looks at every fact requiring
determination and it decides the same by adverting to facts as also law thereon by its findings duly backed by sound reasons. The appellate court failed to formulate points and passed a non- speaking order, rather decided the a ppeal without giving specific reasons, thus,
committed an illegality. The term 'points for determination' refers to all the important questions involved in the case and does not include points which have been abandoned, or which are not necessary for dispo sal of the case. Similarly, it is necessary for the appellate
court to record points for determination, so that it can be determined whether the court has dealt with all the point of dispute involved in the case. Accumulative effect of the afore-referred e xercise will render reason, which will ultimately enable the parties either to finally
accept the decision or to decide, whether their appeal or revision against the said judgment would be beneficial for them or otherwise.
6. The appellate court chose to a ppoint a local commissioner and after receipt of the
local commissioner's report, objections were also invited and thereafter, the local commissioner was summoned and cross -examined, but neither the report was separately
decided, nor it was discussed in the final judgment, so to ascertain whether the decision was passed on the evidence produced by the parties or it was solely based on the report of the local commissioner.
The foregoing reason brings me to an irresistible conclusion that the judgment of the
appellate court being defective and not in accordance with the substantive law, followed by
the dictum laid down by the Superior Courts, was not sustainable. Last but not the least, whenever the appellate court is seized with the appeal arising out of any judgment and decree
of the lower forum, it is always obliged to formulate the points for determination and after resolving the same, shall give explicit reason for conclusion rendered thereon. Therefore, I
intentionally refrain myself to render any observations on merit of the case, rather, it is
deemed appropriate to remand the case to the appellate court with direction to decide the
appeal afresh after formulating points for determination.
7. It is worthwhile to observe here that the appeal in the instant case was decided
through the impugned judgment and decree by the Majlis -e-Shoora, Zhob, being appellate
court of the Qazi courts. Suffice to note here that the 'Balochistan Civil Dispute (Shariat Application) Regulation 1976,' was promulgated on 5th Dece mber 1976 by the Governor of
Balochistan in exercise of powers conferred by Clause (4) of Article 247 of the Constitution of the Islamic Republic of Pakistan 1973, but after promulgation of the 'Twenty- fifth
Amendment' Act No. XXXVII of 2018,' (25th Amendm ent), which has altogether omitted the
Article 247 of the Constitution, whereas Article 246 has been amended and the Tribal areas mentioned therein stand merged in the respective provinces. The Balochistan Civil Dispute
(Shariat Application) Regulation 1976 was promulgated and was extended to the tribal area
of Balochistan by exercising the powers conferred under Article 247 of the Constitution, which is no more a part of the Constitution in view of the 25th Constitutional amendment. Thus after newly emerged situation, the tribal areas are no more in existence. Thus, neither the powers conferred upon the President of Pakistan, in respect of 'Federally Administered Tribal Areas' nor upon the Governor of Balochistan, in respect of 'Provincially Administered Tribal Areas' are available, nor these powers can be exercised anymore.
Under such circumstances, this court vide No. 240/RHC - JM/2019, dated 10th
October, 2019, for the merged areas in the province of Balochistan has already ordered that all litigations pe nding before the Qazi 's courts and appeals/revisions pending before the
Courts of Majlis -e-Shoora exercising jurisdiction under Regulation 1976, stand transferred to
the ordinary civil courts constituted under the 'Balochistan Civil Courts Ordinance, 1962 (as
amended)'. In the instant case the judgment was passed by the erstwhile Majlis -e-Shoora,
Zhob, which being no more in existence has become functus officio, therefore, this case is remanded to the District Judge, Zhob with the direction that after hear ing the parties and
formulating points for determination, decide the appeal afresh, on or before 31st December, 2019.
The petition stands partly accepted, in the above terms, but with no order as to costs.
MH/199/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.