Mst. Fahat Afza Vs Government of Pakistan through Federal Secretary.

JUDGMENT SHEET

PESHAWAR HIGH COURT, D.I KHAN BENCH

[JUDICIAL DEPARTMENT]

Writ Petition No. 580-D/2015.

Mst. Farhat Afza Versus Government of Pakistan through Federal Secretary Interior, Islamabad and others

PRESENT:

For petitioner(s) Mr. Ahmad Ali Khan, Advocate. For respondent (s) Mr. Ghulam Muhammad Sappal, Addl. Advocate General and Mr.

Adnan Saeed Saddozai, Assistant Attorney General.

Date of hearing 05.11.2025.

JUDGMENT

MUHAMMAD NAEEM ANWAR, J.- Mst. Farhat Afza, the petitioner, through the instant constitutional petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, has questioned the legality and propriety of the judgment dated 19.03.1952 passed by the learned Sessions Judge, Derajat, D.I. Khan, only to the extent of forfeiture of immovable property of Fazal Rehman Khan (deceased/convict).

2.The brief facts giving rise to the present petition are that Saif Ullah Khan, son of Chandra Khan, contracted two marriages. From his first wife, he had a son, Bakhityar Khan. Bakhityar Khan married Mst. Shah Bibi, and from this wedlock they had two sons, namely Muhammad Ayub Khan and Fazal Rehman Khan (the convict), and one daughter, Mst. Gulab Bibi. From his second wife, Saif Ullah Khan had three sons, namely, Ali Safdar Khan, Sultan Sikandar Khan, and Muhammad Afzal, and one (D.B) Hon’ble Mr. Justice Ijaz Anwar Hon’ble Mr. Justice Muhammad Naeem Anwar

daughter, Mst. Fatima Bibi. Fazal Rehman Khan was charged with the murder of Alauddin, son of Faiz Ullah, and was tried in Sessions Case No. 09 of 1952 by the then learned Sessions Judge, Derajat. He was convicted and sentenced to death; however, as per the procedure prevalent at the relevant time, the sentence was subject to confirmation by the Judicial Commissioner. The learned Sessions Judge further ordered forfeiture of half of the immovable property of the convict. The factum of Fazal Rehman Khan’s involvement in the criminal case, his conviction, sentence, and the order of forfeiture was recorded in the judgment rendered in Sessions Case No. 09 of 1952. The copy of the judgment initially placed on record is illegible. A subsequent copy produced by the petitioner reflects the aforementioned facts; however, the alleged conviction and sentence under Section 302 PPC could not be conclusively verified, as no duly attested copy of the judgment of the learned Sessions Judge was brought on record, nor could it be ascertained how the so-called better copy was procured by the petitioner. Be that as it may, it is alleged that Fazal Rehman Khan was unmarried at the time of his conviction. The record is also silent regarding confirmation of the death sentence by the competent authority and the execution thereof. It is further alleged that Mst. Gulab Bibi, sister of the convict, had no legal heirs or close relatives and that the petitioner, being a distant relation, took her into her household. Mst. Gulab Bibi continued to reside with the petitioner until her death in the year 2008. Prior thereto, it is claimed that Mst. Gulab Bibi transferred her property in favour of the petitioner through a gift deed dated 20.02.2002, which was registered on 21.02.2002. The petitioner further asserts that the remaining half share of the property of Fazal Rehman Khan devolved upon his sole daughter, who subsequently bequeathed the same in favour of the petitioner (D.B) Hon’ble Mr. Justice Ijaz Anwar Hon’ble Mr. Justice Muhammad Naeem Anwar

through a will deed. On the strength of the said will and revenue entries allegedly made in the year 1953, the petitioner instituted Civil Suit No. 108/1 on 29.06.2011, claiming ownership of the property comprised in Khata No. 16/17, situated at Kot Wali Dad, Tehsil Kulachi, District D.I. Khan. She contended that the forfeiture of the property in favour of the Government was illegal, unjust, and unlawful, and required correction. Through the said suit, the petitioner sought a decree for perpetual injunction restraining the defendants from interfering in her possession, with an alternate prayer for recovery of possession in the event of dispossession during the pendency of the proceedings. The suit was contested by the official respondents and was dismissed by the learned Civil Judge-III, D.I. Khan, vide judgment and decree dated 21.01.2014.

3.Being aggrieved, the petitioner preferred Civil Appeal No. 09 of 2014, which was dismissed by the learned Additional District Judge-IV, D.I. Khan, vide judgment dated 19.09.2014. The concurrent findings of the Courts below were thereafter challenged through C.R. No. 200-D of 2014, which, vide judgment dated 18.05.2015, was partially accepted by a learned Single Bench of this Court. While considering the pleadings relating to the alleged alienation of the property in favour of the respondents through the Land Commission constituted under MLR-64, this Court observed that no judgment of conviction or acquittal could be challenged before a civil court, particularly after a lapse of more than fifty-six years, by a person claiming to be a distant legal heir of a person convicted and sentenced to death by a court of competent jurisdiction. However, it was further held that since the land had allegedly been resumed by the Land Commissioner in favour of the Government under the Land Reforms laws, the civil court lacked jurisdiction to adjudicate the (D.B) Hon’ble Mr. Justice Ijaz Anwar Hon’ble Mr. Justice Muhammad Naeem Anwar

matter. Consequently, the findings of the Courts below were modified, and the suit was ordered to be returned with permission to the petitioner to approach the competent forum for redressal of her grievance in accordance with law. In view of the foregoing observations, the present petition has been filed.

4.Mr. Ahmad Ali Khan, Advocate, representing the petitioner contended that judgement of the Session Judge, Derajat D.I. Khan to the extent of forfeiture of the property under section 62 PPC was nullity in the eye of law and this Court has got ample powers to set aside the alienation of the property in favour of the respondents. He vociferated that once the order of forfeiture of the property in favour of Government is set aside, the petitioner may seek her redressal in accordance with law from the Court of competent jurisdiction. Learned Additional Advocate General Ghulam Muhammad Sappal, contrary to that, contended that the judgement of the Court of competent jurisdiction, whereby, Fazal Rehman was convicted and sentenced could not be challenged through the instant petition after a lapse of half of the century. According to him, under section 51 PPC, the Court has to power to forfeit the property of the convict and thus, the petitioner has got no locus standi to file the instant petition. He placed his reliance on the reported judgements as PLD 2015 SC 50 and

PLD 2008 497.

5.Arguments heard. Record perused.

6.It appears from the record that earlier Writ petition was allowed after hearing the petitioner as prayed for, however, the judgement of this Court was questioned through application under section 12(2) C.P.C on the ground of fraud and misrepresentation of fact which was allowed by this Court and the judgement in writ petition was set aside. Undisputedly, it is not a public litigation lis rather the case of the petitioner is based upon (D.B) Hon’ble Mr. Justice Ijaz Anwar Hon’ble Mr. Justice Muhammad Naeem Anwar

the allegations that she was the transferee of Mst. Gulab Bibi, the only sister of Fazal Rehman who has inherited half of the property of the Fazal Rehman being the sole legal heir of convict, who was executed to death. The first question before this Court for consideration is whether the petitioner has got locus standi to file the suit. It is indisputable that half of the property of convict Fazal Rehman mutated in favour of the legal heir including Mst. Gulab Bibi, but it was alleged by the petitioner in her civil suit that she has become owner of the property based on the will deed from Mst. Gulab Bibi, notwithstanding the factum of distinct relative. Nonetheless, an issue was framed in the civil suit based on the alleged will/bequeath and the petitioner was provided an opportunity to prove her contention. Learned Civil Judge and the appellate Court had dismissed the suit on the ground that she could not prove the factum of transfer of the property through gift deed. Since it was one of the contention that property was resumed under MLR 64, as such, this Court by considering the allegation had held that civil Court has got no jurisdiction to adjudicate upon the resumed property under the provision of MLR 64 and based on the contention of the petitioner through pleadings, the findings of the Courts below were modified to that extent that since the civil Court has got no jurisdiction, then the petitioner may seeks her claim by a competent court of jurisdiction.

7.The instant petition was filed with a clarification by the petitioner that she being illiterate lady was misled of the property of the Fazal Rehman which was resumed under land reforms. Learned counsel for the petitioner was confronted that if Para-1 of the petition to the extent of misconception and misleading that the property was resumed under MLR 64 under occupancy laws, then whether the plaint could be returned or the judgement could (D.B) Hon’ble Mr. Justice Ijaz Anwar Hon’ble Mr. Justice Muhammad Naeem Anwar

be modified and if not, whether the civil court was not competent to decide the suit? Though the counsel contended that the petitioner confined herself to the extent of forfeiture of property but this submission of the counsel for petitioner is misconceived for the reason that earlier he had filed the suit but failed to prove it before the civil court and appeal thereagainst also failed. So much so her civil revision was also not decided on merit for the sole contention that the property was allegedly resumed by the government which aspect has been negated by the petitioner at the onset and in such an eventuality the petitioner was legally required to assail the judgement of this court before the supreme court because her suit was wrongly withdrawn for questioning the land resumption which was wrong conception of petitioner or to sought the review of the judgement of this court which was not competent in either was. This legal aspect of the case was dilated upon by this court in Para No.9 of the judgement which for convenience is reproduced as under:

9.No doubt that section 62 PPC was repealed by the Indian Penal Code Amendment Act, 1921 (XVI of 1921), whereby the sentence of forfeiture was deleted, but accused Fazal Rehman nor any other person on his behalf had challenged that very judgment of conviction, as no such record has been placed on record which could give any inference that the convict had preferred any appeal or even if any appeal had filed its result is not placed on record, also gives an adverse presumption if produced, it would have not favoured the petitioner. Otherwise too, Court could not give findings on presumptions. It was the sole legal responsibility of petitioner to bring on record not only the impugned judgment of conviction, but of appeal (if any), but the petitioner had failed to fulfill her this legal responsibility thereby lost cause of action. According to averments made in the pleadings, accused Fazal Rehman was hanged on 25th November, 1952 and half of his property was forfeited to State which was (D.B) Hon’ble Mr. Justice Ijaz Anwar Hon’ble Mr. Justice Muhammad Naeem Anwar

entered in the name of government through mutation No.321 attested on 12.5.1954. No one amongst his legal heirs challenged the said mutation till filing of the instant suit by the petitioner, who has got no locus standi as she is not the legal heir of late Fazal Rehman, but claimed to have acquired rights in property of one Mst. Farhat Afza through gift and will.

This Court had held that the petitioner had no locus standi to challenge the forfeiture of property in favour of the government and the findings of this court being not challenged before the Hon’ble Supreme Court has attained finality. This view is fortified from the dicta laid down by the apex Court in the case of “Muzaffar Khan vs. Sanchi Khan and another” (2007 SCMR 181). Reliance may also be placed on the case law as reported in case of “Ghulam Rasool through L. Rs and others Vs. Muhammad Hussain and others” (PLD 2011 SC 119), Muhammad Aslam and 2 others v. Syed Muhammad Azeem Shah (1996 SCMR 1862) and Kanwal Nain v. Fateh Khan (PLD 1983 SC 53), Gul Rehman Khan vs. Shirian Khan” (2004 SCMR 592), Khurshid Soap and Chemical Industries (Pvt) Ltd Vs. Federation of Pakistan (PLD 2020 SC 641).

8.In addition, this petition is based upon the permission of this court in CR. 200-D/2014 and the permission was subject to resumption of land by the Land Commission, Para-10 & 11 of the judgement is relevant for determination of maintainability of this petition which are reproduced as under: - “10. In so far as the question of resumption of land by the Land Commission is concerned, civil Court has got no jurisdiction to entertain such like suits where the judgment passed by Land Commission constituted under MLR 64 is brought under challenge, which reads as:-

27.Bar of jurisdiction. (1) No provision of this Regulation or of any rules or orders made thereunder shall be called in question in any Court, including the High Court and the Supreme Court, or before any authority other than an (D.B) Hon’ble Mr. Justice Ijaz Anwar Hon’ble Mr. Justice Muhammad Naeem Anwar

authority appointed under this Regulation, and no such Court or authority shall have jurisdiction in respect of any matter which the Commission or an officer acting under the authority of the Commission is empowered to determine.

(2)No such Court or authority as aforesaid shall be competent to grant any injunction or other order in relation to any proceedings before the Commission or before any officer exercising any power or discharging any function under this Regulation or the rules or orders made thereunder, or in relation to anything done or intended to be done by or at the instance of the Commission or such officer."

While no decision, judgment of conviction or acquittal could be challenged, in civil Court and that too after lapse of more than 56 years by a person, who claimed to be distinct legal heir of the person who had been convicted and sentenced to death by a competent Court of law.

11.For the reasons given hereinabove, no interference could be justified in the concurrent findings given on facts by both the learned Courts below. However, keeping in view the question of lack of jurisdiction in so far as the land resumed by the Land Commission, this revision petition is partly accepted and the impugned judgments rendered by Courts below are modified to the extent that the suit instead of dismissal be returned to petitioner with permission, subject to all valid objections by respondents, to approach the competent forum for redressal of her grievance, if she so advised.”

Since the maintainability of this petition was subject to ouster of jurisdiction of civil court based on the allegations of resumption of land but the petitioner from the inception of this petition has alleged that it was his wrong presumption, hence, neither the jurisdiction of civil court was barred nor the judgement of this court has been challenged, which has attained finality, thus, the petitioner has no locus standi to (D.B) Hon’ble Mr. Justice Ijaz Anwar Hon’ble Mr. Justice Muhammad Naeem Anwar

question the transfer of land which controversy has already been laid to rest by this court.

9.There is no cavil to the proposition that the petitioner’s suit was directed to be returned nevertheless, the return of a plaint or suit is not equivalent to withdrawal or dismissal; it is a procedural act governed by judicial discretion. The litigant’s right after return is not automatic or absolute, but conditional and limited by the express terms of the Court’s order, and the purpose for which the return is granted. The returned plaint must therefore be regarded as clothed with the permission of the Court, and its future prospect is confined strictly to the scope of that permission. The procedural permission must be construed strictly and cannot be interpreted to grant rights greater than those expressly conferred. Hence, if the plaint is returned for presentation before a competent forum, it cannot be used to reopen issues already concluded, nor can it be expanded to seek new reliefs or different causes of action. In simpler terms, the return does not revive abandoned claims, nor enlarge the scope of litigation. The doctrine applicable here is: “permission governs consequence” This means, the effect of the return order flows only from the permission granted, and cannot exceed it by implication or inference. Accordingly, the litigant is bound to, present the plaint to the forum specified, in the manner permitted, and for the purpose intended, any deviation is impermissible in law. It is concluded that the return of the plaint does not confer unrestricted liberty upon the plaintiff. It is clothed with, and confined to, the permission granted by the Court. Any attempt to extend its scope beyond such permission is legally impermissible.

(D.B) Hon’ble Mr. Justice Ijaz Anwar Hon’ble Mr. Justice Muhammad Naeem Anwar

10.Since the petitioner was permitted to seek her remedy under the law but such withdrawal flows from the settled rule that withdrawal is not an automatic or unfettered right; rather, it is a qualified right, subject to: the nature of the permission sought, and the limitations imposed in the order granting such permission. When permission is granted to withdraw a suit, the effect of such permission must be construed strictly; any liberty granted cannot be interpreted beyond its plain terms. Withdrawal is not absolute; it is circumscribed by the court’s order. Only that which is expressly permitted survives. All other rights and claims are deemed abandoned or waived. Therefore, a withdrawal order must be read restrictively; any right or liberty beyond what is expressly granted is excluded by necessary implication.

11.In addition, the recitals of bequeath do not contain any description of the property allegedly transferred through “will” by Mst. Gulab Bibi to the petitioner though she alleged but could not prove and her suit was dismissed though at the end it was directed to be returned but subject to the provision of section 27 of Martial Law Regulations 1959 which plea has been abandoned by the petitioner. Thus, contentions of the learned counsel for petitioner that after the decision of the instant petition in term of declaration and annulment of forfeiture of property the petitioner shall file another suit is also wrong approach. She had filed suit before the civil Court and even that suit too was filed with the permission of the court for withdrawal of her earlier suit, and in view of the chequered history, the submission of the learned counsel for petitioner is misconceived.

(D.B) Hon’ble Mr. Justice Ijaz Anwar Hon’ble Mr. Justice Muhammad Naeem Anwar

12.Viewing the submissions of learned counsel for the petitioner and Additional Advocate General in juxta position with the law on the subject and provision of Article 199 of Constitution of Islamic Republic of Pakistan, 1973, the instant petition is not maintainable, hence, dismissed. Announced on 05.11.2025.

Released on 18.12.2025.

Hasnain/*

SENIOR PUISNE JUDGE

JUDGE

(D.B) Hon’ble Mr. Justice Ijaz Anwar Hon’ble Mr. Justice Muhammad Naeem Anwar