2016 Y L R 1842
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Muhammad Ejaz Swati, JJ
MUHAMMAD AZHAR AWAN ---Petitioner
Versus
GOVERNMENT OF BALOCHISTAN through Chief Secretary and 3 others ---
Respondents
C.P. No.544 of 2013, decided on 28th April, 2016.
(a) Constitution of Pakistan ---
----Art. 199 ---Constitutional petition ---Maintainability ---Alternate remedy ---Constitutional
petition was not maintainable in presence of alternate remedy.
(b) Constitution of Pakistan ---
----Art. 199 ---Constitutional jurisdiction of High Court ---Scope ---Factual controversy could not
be determined in constitutional jurisdiction of High Court.
Manzoor Ahmed Rehmani for Petitioner.
Zahoor Ahmed Baloch for Respondents Nos. 1 to 9 and Zahoor Baloch, Additional
Advocate General for Official Respondents.
Date of hearing: 17th March, 2016.
ORDER
MRS. SYEDA TAHIRA SAFDAR, J. ---The petitioner Muhammad Azhar Awan
approached this court for issuance of a writ in the terms: --
"---the official respond ents i.e. Government of Balochistan may kindly be directed to
rectify the losses of the life and property of the petitioner's family who have been made a
victim of terrorism with affiliation and association of the Provincial Cooperative Bank
Balochistan, Q uetta and official staff of the then Police Station, Dasht and the then Tehsil
and present Naib Tehsildar and Staff of Tehsil Dasht Mastung. The petitioner's family
may be compensated as is exercised in all victimized cases throughout the country."
It was case of the petitioner that his (petitioner's) father and grandfather purchased
ownership and bazgari rights from one Ghulam Sarwar Kurd in the year 1987 -88 of a land
situated at Dasht, which remained in their possessions and they developed it by cultiv ation. It
was further his case that without having any right or title in the subject land illegal interference
was made by the respondent Nos. 9, 10 and 11, which resulted in filing of a civil suit before the
court of Qazi Sarawan at Mastung. While on noti ce of the trial Court Muhammad Khan, Nazir
Ahmed and Ghulam Sarwar Kurd appeared, admitted the sale transaction not only of ownership
right, but also of tenancy rights, thus their (Muhammad Khan, Nazir Ahmed and Ghulam Srawar
Kurd) names were deleted from the suit. While respondent No.9 Amanullah and his sons
contested the suit, which was decreed in the terms as prayed. The appeal was rejected, and the
revision petition filed before this Court also met with the same fate. While the order of this court
was n ot questioned before the Honourable Supreme Court, thus attained finality. It was
contended that despite the same the respondent No.9 submitted number of applications to the
concerned authorities, and also marked to the President and Prime Minister of Paki stan with the
assertions that Naib Tehsildar and staff of sub -Tehsil Dasht District fraudulently mutated his
(respondent No.9's) land in the names of the petitioner's father and grandfather. Further the
respondent No.9 asserted the fraud on the ground that the subject property was mortgaged with
the Balochistan Provincial Cooperative Bank, thus could not be the subject matter of the sale.
Consequent thereto inquiry was held by Senior Member Board of Revenue, Balochistan, it was
concluded that no fraud was c ommitted. It was further his case that in the recent wave of
terrorism respondents Nos. 9 to 12 not only occupied the subject property with force, but also
approached the Court of Qazi Dasht, District Mastung by filing an application for setting aside of
the decree on basis of the documents prepared with fraud, but the relief was declined.
Consequent thereto a revision petition was filed before this Court, which also failed.
2. The petitioner was before this court for the relief while asserting that his family was
victimized by the referred respondents, who not only occupied their landed property but also
destroyed their well furnished house, the tube well and the standing trees, with an intent to turn it
into barren land in order to deprive them of their rights. Further, he and his family sustained loss
on part of respondent No.9 and his sons for which they are to be compensated by the
Government.
3. The learned counsel for the petitioner argued his case at length and also placed before the
court his su bmission in writing. While the respondents Nos. 9 to 11 contested the petition and
filed their counter affidavit. They raised objection on jurisdiction of this court, while asserting
that the petitioner had already exhausted all the remedies available unde r law, thus could not
invoke the constitutional jurisdiction of this court for same relief. The case on facts was strongly
denied.
4. The learned counsel for the petitioner pressed violation of fundamental rights available to
a citizen of Pakistan by the Constitution, while contending that the Government of Balochistan
was bound to safeguard the life and property of a citizen, but it was denied in his ease. It was
contended that on ethnic basis not only lives of his family were under threat but also they were
not able even to visit the area where the subject property was situated. The learned counsel
referred to the Balochistan Civilian Victims of Terrorism (Relief and Rehabilitation) Act, 2014
(Act 2014), and stated that as the petitioner and his family w ere victims of terrorism, that too, on
part of the respondents, private and officials, thus entitled for the benefits arising from the Act,
2014.
5. The learned counsel for the respondents Nos. 9 to 11 strongly objected maintainability of
the instant pet ition while contending that a dispute pertaining to title of the subject property
existed between the parties since 1992, while the remedies available under the law have already
been availed by the petitioner, thus no writ lies in the circumstances. It was stated that even a
complaint under the Illegal Dispossession Act, 2005 (Act 2005) was filed, still sub judice before
the Honourable Supreme Court, for the same property, further disentitled them to invoke the
constitutional jurisdiction of this Court. As far infringement of fundamental rights of a citizen
was concerned, it was stated that the referred Articles of the Constitution safeguard the rights of
the other party too.
6. The learned Additional Advocate General also questioned maintainability of the instant
petition in presence of an alternate remedy. He added that a factual controversy involved in the
case in hand, thus could not be determined in exercise of constitutional jurisdiction, as required
evidence for decision. Further, the petitioner only asked for compensation which could also be
determined on basis of evidence.
7. The Facts as described in the petition, and evident from the counter affidavit and the
annexed papers that the petitioner claimed to be one of the owners of the subject prope rty as title
of ownership with bazgari rights were asserted to be purchased by them from the previous
owners. The petitioner claimed to have gained the status of lawful purchaser, when entered into a
valid sale transaction, while their status as such was f urther declared by the order of the Qazi
Sarawan at Mastung, which was upheld by this court in the revision petition filed by some of the
respondents. An effort was made for setting aside of the decree, passed in case filed by the
petitioner, but failed. F urther, the case of the petitioner was mainly revolved around the
allegations of fraud and misrepresentation on part of several of the respondents, official and
private, but it remained an assertion, as before no forum this allegation was established.
8. The petition was filed with an intent to rectify the losses of life and property asserted to
be sustained by the petitioner and his family, who claimed themselves to be the victims of
terrorism, thus to be compensated as required. It was observed that the title of the petitioner, and
his family was already determined by the courts of law, and the orders dated 29th December
1994 and 12th December, 1993 still hold the field. While litigation pertaining to the Illegal
Dispossession Act, 2005 still sub judice before the Honourable Supreme Court. From the
described facts it could safely be concluded that through the title of subject property was
determined by a court of competent jurisdiction, but surely the petitioner and his family was out
of possession, as a complaint was filed under the Act 2005 with an allegation of illegal
dispossession.
9. While the relief claimed in the instant petition was confined to the extent of
compensation for which they become entitled when declared as victims of terrorism. It is also a
factual controversy, thus could not be determined in exercise of constitutional jurisdiction. In
addition a specific law was referred, while provisions of the Balochistan, Civilian Victims of
Terrorism (Relief and Rehabilitation) Act, 2014 was pres sed for redressal of his grievances. A
special enactment to deal with the matters fall within its ambit, also provide a specific procedure
to enable the victims to get the relief available thereunder. A provision of appeal is also provided
for redressal of the grievances, if any, on part of a person while pressing his claim thereunder.
Thus in presence of the referred law, with an alternate remedy, it would be against the spirit of
Article 199 of the Constitution of Islamic Republic of Pakistan, and to issu e a writ as desired in
exercise thereof.
The petition is not maintainable for the reasons as discussed hereinabove, thus dismissed.
ZC/35/Bal. Petition dismissed.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,
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