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Petitioner: SHAHIDUN NABI KHAN VS Respondent: HASHMATULLAH
1988 S C M R 997
1988 S C M R 997
Present: Muhammad Afzal Zullah, Abdul Kadir Shaikh and Javid Iqbal, J
SHAHIDUN NABI KHAN and others‑‑Petitioners versus
HASHMATULLAH‑‑Respondent
Civil Petition for Leave to Appeal No.51‑K of 1986, decided on 26th January, 1988.
(On appeal from the order and judgment of the Sind High Court, Karachi in C.P. No.1087 of 1973, dated 29‑10‑1985).
Constitution of Pakistan (1973)‑‑
‑‑‑Art.185(3)‑‑Evidence‑‑Documentary evidence, appreciation of‑‑Plea raised before High Court and Supreme Court that documents produced by respondent before Settlement Commissioner were not proved in legal manner nor opportunity given to petitioners to produce evidence in their rebuttal, not sustained‑‑Settlement Commissioner took note of petitioners' documents, and perused them alongwith other record before passing the impugned order‑‑Held, merely because each document produced by petitioners was not discussed separately, it would not be justified to draw an inference that the documents were not given the consideration they actually deserved‑‑Petitioners' plea rejected by High Court for reasons which were unexceptionable‑‑Leave to appeal refused.‑‑[ Evidence].
Akhtar Mahmud, Advocate‑on‑Record for Petitioner.
Khalid M. Ishaque, Advocate Supreme Court and Nizem Ahmed, Advocate‑on‑Record for Respondents.
Date of hearing: 26th January, 1988.
ORDER ABDUL KADIR SHAIKH, J.‑‑This is a petition for leave to appeal from the judgment of a learned Judge of Sind High Court dated 29‑10‑1985 dismissing a constitution petition filed by petitioners by which they sought to challenge the order of Settlement Commissioner, Hyderabad dated 8‑8‑1973 restoring the allotment of four Survey Numbers namely 314, 340, 357 and 567 in Deh Khanpur (now District Shikarpur) in favour of respondent Hashmatullah.
2. Petitioners' case before the High Court was that the disputed area was allotted to them by the order dated 17‑1‑1962 after verification of their claims under Martial Law Regulation 89 and on subsequent surrender of the excess land they purchased the aforesaid property. According to petitioners, the respondent dispossessed them from Survey Numbers 340 and 365 asserting that he not only owned this area, but also the two other Survey Numbers 314 and 357. According to petitioners, on enquiry they came to know that the respondent had somehow managed to get a revised Khatoni dated 15‑2‑1985 issued in his favour in lieu of the original Khatoni dated 5‑9‑1957 and got it ante‑dated, when in fact it was prepared after the allocation order dated 17‑1‑1962 in their favour.
3. At the hearing of the case before the High Court as well as before us in support of this petition for leave to appeal from the judgment of the High Court the submission advanced by the learned counsel for the petitioners was as under:‑
"That 52 documents admittedly produced by the respondent at the time of arguments before the Settlement Commissioner were not proved in legal manner nor opportunity was given to the petitioners to produce evidence in their rebuttal."
4. Learned Judge in the High Court examined this plea in great details and we may usefully quote the following observations made by him in the judgment.
"It goes without saying that several documents were produced and relied upon by the respondent Hashmatullah in course of the arguments before the Settlement Commissioner. The objection of the petitioners' learned counsel was that the said documents some of which were forged were illegally taken into consideration by the Settlement Commissioner with the result that his conclusions based on such material turned out to be erroneous. In other words he means to say that the documents sought to be relied upon by the respondent were required to be produced in accordance with relevant provisions of the C.P.C. In spite of the above position taken by the learned counsel for the petitioners, it was not denied by him that no objection was raised either to production or consideration of the documents as evidence. In view of this concession on behalf of petitioners, the learned counsel of the respondent submitted that since no objection was taken to the admissibility of documents in evidence in the lower Court, it was not permissible to raise such objection at this belated stage . Moreover, it was conceded by the learned counsel for the petitioners that even the petitioners themselves had adopted the same method of producing their documents in the said lower Court. His grievance, however, was that their documents were not taken into consideration by the learned Settlement Commissioner. I have carefully gone through the impugned order. It is found that the above charge of the learned counsel has no truth in it. It appears from the order that the learned Settlement Commissioner has taken note of the documents produced on behalf of the respondent. Not only the documents find mention in the order but also they were perused alongwith other record by the learned Settlement Commissioner before passing of the impugned order. Merely because each document produced by them is not discussed separately, it will not be justified to draw an inference that the documents were not given the consideration they actually deserved."
5. Learned Judge in the High Court also examined the plea raised by the petitioners that the respondent had obtained a forged Khatoni in so much as it was ante‑dated and shown to have been issued on 12‑2‑1985 when it was actually issued after 17‑1‑1962. It was rejected by him for several reasons with which we entirely agree. We find no substance whatsoever in the pleas raised in support of the petition. The petition is accordingly dismissed.
M.I./S‑1271S Petition dismissed.