2000 M L D 1264
[N‑W.F.P. Bar Council Tribunal]
Before Justice Mian Muhammad Ajmal, Chairman, Muhammad Alam and Syed Rehman, Members
IRSHAD KHAN-‑‑Complainant
versus
GOHAR RAHMAN KHATTAK, ADVOCATE‑‑‑Respondent
Complaint No. T‑43 of 1999, decided on 18th December, 1999.
Pakistan Legal Practitioners and Bar Councils Rules, 1976‑‑
‑‑‑‑Rr. 134, 172 & 175‑A‑‑‑Professional misconduct‑‑‑Evidence on record had proved that Advocate obtained huge amount from complainant/client with undertaking to pay said amount to Presiding Officer of Court for acquittal of complainant‑‑‑Such conduct of Advocate, prima facie was violation of all cannons of professional ethics and morality‑‑‑Advocate was bound to maintain the dignity and high prestige of legal profession and also his own dignity as a member of legal fraternity, both within and outside the Court and should refrain to indulge in deception and betrayal of trust of public‑at‑large‑‑‑Courts reposed great trust and confidence in . Advocates and. any violation of same would amount to professional misconduct under 8.175‑A of Pakistan Legal Practitioners and Bar Councils Rules, 1976‑‑‑Advocate having been found guilty of professional misconduct was suspended from practice for a period of two years with costs.
Muhammad Amin v. M. Asghar Khokhar; Advocate 1992 CLC 1596 ref.
Khawaja Azhar Rashid, Asstt. A.‑G. for the Government of N.W.F.P.
Shah Zada Shah.Pur Jan for the Complainant. M. Arif Khan for Respondent.
Date of hearing: 11th December, 1990.
2000 M L D 1275
[N.‑W.F.P. Bar Council Tribunal]
Before Justice Mian Muhammad Ajmal, Chairman, Muhammad Alam and Syed Rehman, Members
WARD ALI ‑‑‑Complainant
versus
ZAFAR KHALIL, ADVOCATE and another‑‑‑Respondents
Complaint No.T‑37 of 1999, decided on 18th December; 1999.
Pakistan Legal Practitioners and Bar Councils Rules, 1976‑‑‑
‑‑‑‑Rr. 134, 172 & 175‑A‑‑‑Professional misconduct‑‑‑Allegations against Advocates were that they had obtained huge amount from complainant for passing on to Presiding Officer of the Court with an undertaking that they would get complainant's son released on bail and that in case of failure would, return money back to the complainant‑‑‑Advocates had not rebutted allegations levelled against them, but had simply stated that they had returned some amount to complainant‑‑‑Conduct of Advocate prima facie was unbecoming of a counsel and return of money would not exonerate them from misconduct in circumstances‑‑‑Advocates were duty bound to maintain dignity and high standing of legal profession and also his own dignity as a member of the legal fraternity, both within and outside the Court and should refrain to indulge, in deception and betrayal of trust of public‑at‑large‑‑Courts reposed great trust and confidence in Advocates and any violation of the same would definitely amount to professional misconduct under 8.175‑A of Pakistan Legal Practitioners and Bar Councils Rules, 1976‑‑‑Advocates having been found guilty of professional misconduct were suspended from practice for a period of three‑years, with costs.
Muhammad Amin v. M. Asgahr Kokhar, Advocate 1992 CLC 1596 ref.
Complainant in person. Khanzada Ajmal Zeb for Respondents.
2000 M L D 1518
[N.W.F.P. Bar Council]
Before Justice Mian Shakirullah Jan, Chairman, Muhammad Alam and Syed Rehman, Members
ALI REHMAN‑‑‑Complainant
Versus
SOHAIL HASSAN QAISAR, ADVOCATE‑‑‑Respondent
Complaint No.T‑24 of 1997, decided on 22nd April, 2000.
Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑
‑‑‑‑S. 41‑‑‑Professional misconduct‑‑‑Jurisdiction of Bar Council Tribunal‑‑‑Challenge to‑‑‑Validity‑‑‑Allegation against Advocate was that he took a flat on rent for his office, but since occupation of said flat he had neither paid rent to complainant landlord nor had vacated the same‑‑‑Further allegation against the Advocate was that he fraudulently entered a clause in the rent deed with his own hand that in case of subletting of flat, complainant landlord would have no objection‑‑‑Complainant had prayed that as the person under robes of an Advocate had cheated complainant and had betrayed the trust, legal action should be taken against him under law‑‑‑Advocate had contended that act complained of against him was not the result of any professional duties because no jural relationship of counsel and client existed between the parties and allegations contained in the complaint would not amount to professional misconduct‑‑‑Contention of Advocate was repelled, because misconduct need not be the direct consequence of professional duties of a person as an Advocate but if the act complained of was remotely connected with profession or was done under cover of legal profession, same would amount to misconduct as defined in S.41, Legal Practitioners and Bar Councils Act, 1973‑‑‑Bar Council Tribunal, in circumstances, had got plenary jurisdiction to adjudicate the matter.
1982 CLC 2341 and AIR 1934 Lah. 251 ref.
Ishtiaq Abrahim, Asstt. A.‑G. for the Government of N.‑W. F. P.
Abdul Qadir Khattak for the Complainant.
Respondent in person.
2000 M L D 41
[Board of Revenue Punjab]
Before Shahzad Hassan Pervez, Member (Judicial‑I), MUHAMMAD ASLAM and 3 others‑‑‑Petitioners
versus
SARDAR MUHAMMAD and 3 others‑‑‑Respondents
Review No. 178 of 1995, decided on 10th March, 1999.
West Pakistan Board of Revenue Act (XI of 1957)‑‑‑
‑‑‑‑S. 8‑‑‑Review by Board of Revenue‑‑‑Jurisdiction Invocation‑‑‑Specific point of review‑‑‑Power of review of Board of Revenue was very limited and could be invoked only on three specific points viz. from discovery of new and important matter or evidence which after exercise of due diligence, was not within knowledge of petitioner or could not be produced by him at time when decree was passed or order was made; on account of some mistake or error apparent on the face of the record; and for any other sufficient reason‑‑If power of review was to be exercised by Board of Revenue for rectifying decision of a Member of the Board which suffered from incorrect interpretation and application of law or non‑appreciation of facts, it would lead to an unending cycle of litigation‑‑‑Such power, in circumstances, was not available for any successor to adjudge the validity of order of his predecessor.
Haq Nawaz Kiani for Petitioners.
Ch. Sultan Ahmad for Respondents
2000 M L D 43
[Board of Revenue Punjab]
Before Shahzad Hassan Pervez. Member (Judicial‑I)
FAIZ BAKHSH through Legal Heirs‑‑‑Petitioner
versus
MUHAMMAD ISA through Legal Heirs‑‑‑Respondent
R.O.R. No. 1484 of 1988, decided on 5th May, 1999.
Punjab Pre‑emption Act (I of 1913)‑‑‑
‑‑‑‑Ss. 4 & 21‑‑‑Land Reforms Regulation, 1972 (M.L.R. 115) ‑‑‑ Pre‑emption suit‑‑‑Competency‑‑‑Suit for pre‑emption claiming superior right of pre‑emption as tenants of suit land, even if filed before 31st July, 1986 could not be decided and decreed under Punjab Pre‑emption Act, 1913 or provisions of M.L.R. 115 as certain provisions of said Act and some paras. of M.L.R. 115 had been declared to be repugnant to Injunctions of Islam by Shariat Appellate Bench of Supreme Court.
PLD 1987 Lah. 358; PLD 1988 SC 291; PLD 1988 SC 287; 1990 SC 899; PLD 1994 Lah. 13; 1993 SCMR 696; 1987 MLD 2911; 1993 SCMR 696; NLR 1998 Civil 182 and Muhammad Sharif v. Muhammad Sharif 1992 SCMR 1129 ref.
Sardar Ashiq Muhammad Khan and Muhammad Abdullah Qureshi for Petitioners.
S.A. Chughtai for Respondent.
2000 M L D 118
[Board of Revenue Punjab]
Before Shahzad Hassan Pervez, Member (Judicial‑I)
MUHAMMAD AKBAR and others‑‑‑Petitioners
versus
THE STATE‑‑‑Respondent
R. O. R. No. 1458 of 1996, decided on 30th June, 1999.
Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑
‑‑‑‑Ss. 10 & 30‑‑‑Notification dated 3‑9‑1979‑‑‑Allotment of land‑‑‑Grant of proprietary rights ‑‑‑Entitlement‑‑‑Allottee of land under 15 Years' Temporary Cultivation Lease Scheme, had filed application under Notification dated 3‑9‑1979 for grant of proprietary rights‑‑‑Evidence on record had revealed that allottee of land, who had been in cultivating possession of said land since before Kharif 1977, had fulfilled all conditions of eligibility as per Notification entitling allottee for grant of proprietary rights and was not hit by any of, disqualifications contained in prohibition clause of said Notification ‑‑‑Allottee who fulfilled all conditions of eligibility was entitled to grant of proprietary rights in respect of land allotted to him.
Ch. Muhammad Bakhsh for Petitioners.
2000 M L D 131
[Board of Revenue Punjab]
Before Shahzad Hassan Pervez, Member Judicial
MUHAMMAD ALI and another‑‑‑Petitioners
versus
MUHAMMAD HAYAT and 2 others‑‑‑Respondents
R.O.R. No. 2221 of 1994, decided on 5th July, 1999.
(a) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑
‑‑‑‑Ss. 10 & 30‑‑‑Lease of State land‑‑‑Proprietary rights‑‑‑Claim‑‑‑Applicants who claimed to be eligible to acquire proprietary rights in respect of land on ground of being sub‑tenants, had failed to prove themselves to be subtenants‑‑‑Claim of applicants, in respect of proprietary rights, was rejected.
(b) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑‑
‑‑‑‑Ss. 10 & 30‑‑‑Notification No.1999‑82/1206‑CLI, dated 27‑3‑1982‑‑‑Lease of State land‑‑‑Claim of proprietary rights‑‑‑Lessee who obtained lease of State land under 10 Years' Temporary Cultivation Lease Scheme, had applied for grant of proprietary rights in respect of the land‑‑‑As per Notification No.199982/1206‑CLI, dated 27‑3‑1982 extension of lease or proprietary rights in respect of such land could be granted to lessees, who were either landless tenants or owners of less than four acres of land and who were self‑cultivators‑‑‑Lessee who himself was owner of 246 Kanals and 1 Marla did not qualify for grant of lease of land in question‑‑‑Land leased out to said lessee was liable to be resumed immediately and was to be included in Schedule of land to be leased out under Temporary Cultivators Lease Scheme.
Ch. Muhammad Sharif for Petitioners.
Syed Muhammad Afzal Hussain Bokhari for Respondents.
2000 M L D 675
[Board of Revenue Punjab]
Before Shahzad Hassan Pervez, Member (Judicial‑I)
MUHAMMAD ISMAIL ‑‑‑Petitioner
versus
SHAH DIN‑‑‑‑Respondent
ROR No. 1400 of 1.993, decided on 23rd October, 1999.
(a) West Pakistan Land Revenue Act (XVH of 1967)‑‑‑
‑‑‑‑S.36‑‑‑West Pakistan Land Revenue Rules, 1968, R.17‑‑‑Appointment of Lambardar‑‑‑Essentially was an administrative measure and no claim to that office could be laid as of right.
1972 SCMR 253; 1971 SCMR 719 and PLD 1964 W.P (Rev.) 128 ref.
(b) West Pakistan Land Revenue Act (XVH of 1967)‑‑‑
‑‑‑‑S.36‑‑‑West Pakistan Land Revenue Rules, 1968, Rr.17 & 22‑‑Appointment of Lambardar‑‑‑Office of Lambardar was in the nature of an agent of the Government to perform prescribed functions‑‑‑Appointment or one person as Lambardar by Authority could not in law be considered as infringement of rights of another aspirant who could have equal qualifications.
Ch. Abdul Rashid Gujjar for Petitioner.
Muhammad Farooq Qureshi Chishti for Respondent.
2000 M L D 676
[Board of Revenue Punjab]
Before Shahzad Hassan Pervez, Member (Judicial‑1)
DARI and 15 others‑‑‑Petitioners
versus
GHULAM RASOOL and 3 others‑‑‑Respondents
ROR No.798 of 1993, decided on 17th May, 1999.
Punjab Tenancy Act (XVI of 1887)‑‑‑
‑‑‑‑S.77‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.164‑‑‑Suit for payment of share of produce through rendition of account‑‑‑Revision‑‑‑Order and decree passed in suit by Assistant Collector 1st Grade exceeding Rs.10,000 had been challenged firstly on ground that said order and decree exceeded pecuniary jurisdiction of Assistant Collector and secondly that suit was bad in law and it was filed for four crops while law had stipulated that separate suits should have been filed for each group‑‑‑No pecuniary jurisdiction had been prescribed in general provisions of S.77, Punjab Tenancy Act, 1887 or elsewhere in said Act in respect of suits filed by a cosharer in an estate for a share of profits or for settlement of accounts which fell in serial (k) of second group in S. 77 of Punjab Tenancy Act, 1887.
NLR 1979 SC 50 ref.
Malik Ghulam Siddique Awan for Petitioners.
Syed Altaf Hussain Shah for Respondents.
ORDER
Land involved in the case is 630 Kanals, 7 Marlas comprising Khewat No.247, Khatuni Nos.1152 to 1167, situated in Mauza Chot Dheeran, Teshil Phalia, District Gujrat. According to Jamabandi for the year 1982‑83 the total shareholders in this Khewat are 14 in number. Ghulain Rasui, etc. filed a suit for payment of share of produce through rendition of accounts in the Court of Assistant Collector 1st Grade, Phalia relating to the crop Rabi 1985 to Kharif 1987 which was decreed on 27th of August, 1988 for a sum of Rs.10,809.63. The petitioners filed an appeal against this order and decree, dated 27th of August, 1988 in the Court of A.C./Collector, Mandi Baha‑ud‑Din who accepted it and remanded the case to Assistant Collector 1st Grade for decision afresh vide order, dated 15th of February, 1989 on the ground that decree has been passed against those respondent also who did not have in their possession land in excess of their share in the Khata. Assistant Collector 1st Grade decided the case on 3rd of July, 1989 and maintained his previous judgment and decree. Against this order, an appeal was filed before A.C./Collector Mandi Baha‑ud‑Din which was rejected and the decision of Assistant Collector 1st Grade, Phalia was upheld vide order, dated 19th of November, 1990. Jahana (Deceased) through Dari, etc. filed revision petition against this order, dated 19th of November, 1990 which was dismissed on 20th of March, 1992. Review petition filed in the Court of Additional Commissioner (Revenue), Gujranwala Division met the same fate on 7th of January, 1993. The present revision petition has been filed against this order of Additional Commissioner.
The learned counsel for the petitioners contended that order and decree, passed by Assistant Collector 1st Grade for Rs.10,809.65 exceeded his pecuniary jurisdiction. Since this order of Assistant Collector 1st Grade was bad in law, therefore, the entire superstructure built on it, such as order of A.C./Collector and Additional Commissioner must fall. These orders, therefore, ought to be set aside on this score alone. It was also argued that A.C./Collector while remanding the case for fresh decision to Assistant Collector 1st Grade had given specific directions which were not abided by Assistant Collector 1st Grade while deciding the case. It was contended that respondent had filed suit for payment of share of produce through rendition of accounts for 4 crops while the law stipulates that separate suits should have been filed for each crop. The consolidated claim for 4 crops was, therefore, bad in law and as such ought not to have been entertained by Assistant Collector 1st Grade. It was further averred that the suit was decreed without association of other co‑sharers in the proceedings. It was further stated that the petitioners had been in the relevant period and are still cultivating land in the joint Khata according to their respective shares.
The learned counsel for the respondents contended that there was no restriction to pass decree of more than Rs.10,000 by Assistant Collector 1st Grade. He further pleaded that under the Punjab Tenancy (Amendment) Act, 1977, the limit of 3 years was reduced to 2 years which involved 4 crops. Referring to section 120 of Limitation Act he submitted that the period relevant to the instant case in respect of crops is 6 years which involves 12 crops. He reported that the present petitioners had filed suit in the civil Court which was subsequently withdrawn and that suit for rendition of accounts relating to Rabi 1984 was also decreed against the present respondents for Rs.6,611 which decree stands executed. It was stated that copy of Register Haqdaran Zamin (Exh.P‑I), Khasra Girdawari (Exh.P‑II), statement of accounts (Exh.P‑111) and Naqsha Kami Beshi (Exh. P‑IV) were thoroughly examined by the lower Courts which determined that petitioners were in possession of land in excess of their share. He conceded that although some of the co‑sharers were not heard in the first instance but while passing the decree and order, dated 3rd of July, 1989, all the co‑sharers were associated with the proceedings and heard by Assistant Collector 1st Grade. It was contended that concurrent findings of the lower Courts were based on correct interpretation of law and as such ought to be maintained. He referred to NLR 1979 SC 50 in support of this contention:
Two main issues have been raised by learned counsel for the petitioners are that:‑‑
(a) Assistant Collector First Grade is not vested with pecuniary jurisdiction to pass a decree exceeding Rs.10,000 in a suit falling in Second Group Serial (k).
(b) The law requires that separate suits should have been filed for each crop. Suit for 4 crops is incompetent.
I have given careful consideration to the arguments of the parties specially to the pleadings of learned counsel for the petitioners. The proviso to subsection (3) of section 77 of Punjab Tenancy Act relates to plaints to be presented to the Collector by the plaintiff on the direction of Civil Court for determination of matter exclusively falling within the jurisdiction of Revenue Courts. This proviso stipulates that suits where the value thereof exceeds Rs.10,000 or the matter involved is of the nature mentioned in section 77(3), First Group of the Punjab Tenancy Act, 1887 will be triable by Collector alone. This proviso does not have an overriding effect on the contents of subsections (3) and (5) of section 77. Subsection (4)(b) states that an Assistant Collector of 1st Grade may hear and determine any of the suits mentioned in the second and third groups of that subsection. No pecuniary jurisdiction has been prescribed in the general provision of section 77 or elsewhere in the Punjab Tenancy Act in respect of suits falling in serial (k) of the Second Group. The first assertion of the learned counsel for the petitioners is, therefore, untenable.
The learned counsel for the petitioners has not cited any provision of law which makes the suit under serial (k) of Second Group bad if it is for rendition of accounts of 4 crops. Reference given by learned counsel for the respondents to section 120 of Limitation Act, however, is not relevant to rebut the unsubstantiated assertion of learned counsel for the petitioners that a suit involving 4 crops falling in serial (k) of Second Group is bad in law.
I, therefore, find that there is no legal infirmity in the concurrent findings of the lower Courts. Resultantly, the orders of Additional Commissioner, dated 30‑3‑1992 and 7‑1‑1993 are upheld and the petition is dismissed.
H.B.T./6/P. (Rev.)
Petition dismissed.
2000 M L D 679
[Board of Revenue Punjab]
Before Shahzad Hassan Pervez, Member (Judicial‑I)
HAFEEZ ULLAH‑‑‑Petitioner
versus
ABDUL HAMEED‑‑‑Respondent
Review No.441 of 1995, decided on 23rd October, 1999.
West Pakistan Board of Revenue Act (XI of 1957)‑‑‑
‑‑‑‑S.8‑‑‑Review‑‑‑Maintainability‑‑‑All points raised in review petition were already considered and adjudicated upon by predecessor Member, Board of Revenue‑‑‑Provisions of S.8, West Pakistan Board of Revenue Act, 1957 not contemplating successor of Member, Board of Revenue to determine tenability of order of his predecessor as an Appellate Court, Review petition was liable to be dismissed predecessor absence of ingredients of said section.
Ch. Muhammad Afzal Wahla for Petitioner.
G.H. Khan for Respondent.
ORDER
The points agitated in this petition for review of the order of my learned predecessor in brief are that Patti to Chak No. 128/WB, Tehsil Mailsi was merged with Patti of adjacent Cooperative Farming Scheme thereby giving the status to the estate as chiefly owned by the Government rendering thereby Rules 19 sub‑rule (2) as in operative; that the Revenue Record baring Misal Haqiat 1961‑62 was not produced before my predecessor and that District Collector had rightly passed the order appointing the petitioner as Lambardar of the Deh taking into consideration demerits of the respondent who was involved in forgery of record and absence from the estate. It was also submitted that Jat caste is in majority in the estate and the petitioner belongs to this community.
(a) "There is, however, nothing on the record to show that these two Pattis have been merged and the Lambardaris reduced from two to one. "
(b) I have seen the record".
(c) The rule of primogeniture has to be applied to the succession‑‑Abdul Hameed cannot be debarred unless he suffers from any serious disqualification under which he would be liable to be dismissed if he were Lambardar. "
(d) I find the respondent suffering from no such disqualification. Even if he resides in the adjoining estate that would not disqualify him.
(e) The community of the respondent Abdul Hameed namely Gujjar community is more numerous than the community of the petitioner namely Jat community both in numbers and the acreage they own."
Review petition dismissed.
2000 M L D 681
[Board of Revenue Punjab]
Before Skahzad Hassan Pervez Member (Judicial-1)
HABIB ---Petitioner
versus
THE STATE and 2 others---Respondents
ROA No.4 of 1999, decided on 29th November, 1999.
Colonization of Government Lands (Punjab) Act (V of 1912)---
----S.10---West Pakistan Land Revenue Act (XVII of 1967), S.164--Allotment of State land ---Eligibility ---Revision---Inordinate delay--Maintainability---Unauthorised occupation of State land would not create any right in favour of an individual---Revision petition against order of Authority was filed by petitioner after twenty-four years of passing of said order---In absence of any cogent explanation for said inordinate delay in filing revision, revision could not be entertained.
Ch. Muhammad Siddique for Petitioner.
2000 M L D 755
[Board of Revenue Punjab]
Before Shahzad Hassan Pervez, Member (Judicial I)
SHER MUHAMMAD ‑‑‑Petitioner
versus
THE STATE‑‑‑Respondent
R.O.R. No. 1335 of 1997, decided on 12th October, 1999.
Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑
‑‑‑‑Ss. 10, 24 & 30‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.164‑‑‑Allotment of land‑‑‑Grant of proprietary rights‑‑‑Resumption of land‑‑‑Revision‑‑‑Land in dispute was given on lease to petitioner under Five Years Temporary Cultivation Scheme and he was declared eligible for grant of proprietary rights‑‑‑Petitioner deposited nine instalments of price of land, but failed to deposit last instalment due to his absence from country‑‑Allotment of petitioner was cancelled and land was resumed on account of non‑cultivation of land due to his absence from country‑‑‑Land of petitioner was resumed without serving him with notice under S.24 of Colonization of Government Lands (Punjab) Act, 1912‑‑‑Validity‑‑‑Scheme whereunder land was leased out to petitioner did not provide for any penalty or initiation of any proceedings for resumption of land after grant of proprietary rights if lessee was absent from allotted land or failed to cultivate same‑‑‑Orders resuming land of petitioner, being not tenable under law, were set aside and petitioner was allowed to pay last instalment of price of land.
Muhammad Mohsin for Petitioner.
2000 M L D 757
[Board of Revenue Punjab]
Before Shahzad Hassan Pervez, Member (Judicial-I)
MUHAMMAD SADIQ and another-- -Petitioners
versus
ADDITIONAL COMMISSIONER (CONSOLIDATION) RAWALPINDI and 6 others---Respondents
R.O.R No.2278 of 1994, decided on 23rd October, 1999.
West Pakistan Consolidation of Holdings Ordinance (VI of 1960)-----
----Ss.11 & 13---West Pakistan Land Revenue Act (XVII of 1967), S.164--Revision against order of Consolidation Officer---Competency---Revision before Additional Commissioner (Consolidation) alleging that Consolidation Scheme was prepared by Consolidation Officer secretly and fraudulently without associating petitioners- --Revision was dismissed by Additional Commissioner (Consolidation) on ground that petitioners had filed revision without first availing remedy of appeal available under S.11. West Pakistan Consolidation of Holdings Ordinance, 1960---Validity---Board of Revenue, Commissioner and District Collector, had been vested with suo motu revisional jurisdiction under provisions of S.13 of West Pakistan Consolidation of Holdings Ordinance, 1960, which jurisdiction could be invoked in special circumstances and no such special circumstances existed in the case---Petitioners having failed to avail remedy of appeal provided in law could not invoke suo motu revisional jurisdiction of Additional Commissioner---Consolidation proceedings were undertaken with consent of landowners, Scheme was confirmed in open assembly and petitioners had thumb-marked/signed the Scheme as a token of acceptance---Petitioners were, thus, not justified to allege that consolidation proceedings were undertaken secretly.
C.R. Aslam for Petitioners.
Malik Ghulam Siddique Awan for Respondents.
2000 M L D 920
[Board of Revenue Punjab]
Before Muhammad Khalil Bhatti, Member (Consolidation)
SHAMAS DIN alias SAMI KHAN‑‑‑Petitioner
versus
MUHAMMAD ASHRAF and others‑‑‑Respondents
R.O.R.2345 of 1997, decided on 9th May, 1998.
West Pakistan Consolidation of Holdings Ordinance (VI of 1960)‑‑‑‑
‑‑‑‑Ss. 10(3) & 13‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.164‑‑‑Revision‑‑‑Consolidation of holdings‑‑‑Consolidation Scheme confirmed by Consolidation Officer was amended by Collector‑‑‑Petitioner filed appeal against order of Collector, but Additional Commissioner (Consolidation) rejected the appeal on ground that petitioner not being owner of land in village concerned, was not an aggrieved person‑‑‑Evidence on record had proved that petitioner was owner of land in the village‑‑‑Order of Additional Commissioner rejecting appeal and order of Collector were set aside in revision remanding case to Collector to decide the same afresh after visiting site and hearing the parties.
N.A. Butt for Petitioner.
Respondent No. 2 in person and on behalf of Respondent No. 1.
Rao Shahab‑ud‑Din, Member, Advisory Committee.
2000 M L D 1281
[Board of Revenue Punjab]
Before Shahzad Hassan Pervez, Member Judicial‑I
MUHAMMAD HUSSAIN and 3 others‑‑‑Petitioners
Versus
THE STATE‑‑‑Respondent
Review Petition No. 124 of 1996, decided on 7th March, 2000.
West Pakistan Board of Revenue Act (XI of 1957)‑‑‑--
‑‑‑‑Ss. 7 & 8‑‑‑Review of order of Board of Revenue passed in revision‑‑Revision filed against order of Additional Commissioner (Revenue) was dismissed by Member‑ (Colonies), Board of Revenue on ground that petitioners had unlawfully handed over possession of their respective tenancies to some other persons and that said transaction was uncertifiable‑‑Petitioners had filed review petition against said order with a delay of eleven months and twelve days‑‑‑Maintainability‑‑‑Petitioners by relinquishing their tenancies unlawfully and handing over land to unathorised persons, had lost their entitlement to possess tenancies‑‑‑Member, Board of Revenue in circumstances had rightly dismissed revision petition because unauthorised cultivator had no right under law‑‑‑No ingredient of S.8 of West Pakistan Board of Revenue Act, 1957, being involved in ground of review petition, same was dismissed being not maintainable.
G.H. Khan for Petitioners.
2000 M L D 1984
[Board of Revenue Punjab]
Before Shahzad Hassan Pervez, Member Judicial
MAMAND and 3 others‑‑‑Petitioners
versus
BASHIR AHMAD and 2 others‑‑‑Respondents
R.C.R. No. 118 of 1995, decided on 16th May,.2000.
Punjab Tenancy‑Act (XVI of 1887)‑‑‑
‑‑‑‑S. 39‑‑‑West Pakistan Land Revenue Act (XVII of 1967), Ss.161 & 164‑‑‑Suit for ejectment against tenant‑‑‑Suit was dismissed by Assistant Collector holding that relationship of landlord and tenant did not exist between the parties‑‑‑Collector set aside the order of Assistant Collector concluding that relationship of landlord and tenant did exist between the parties and decreed suit‑‑‑Appeal against judgment and decree of Collector was also rejected by Commissioner and tenants filed revision against judgment and decree of Commissioner‑‑‑Validity‑‑‑Commissioner decided appeal without adverting to fact that tenants were not given opportunity of earing‑=‑Wilful absence of the counsel of tenants could not be a ground to penalise the tenants‑‑‑Commissioner ought to have attended to grounds of appeal and should have given reasoning for his decision on each and every point contained in the appeal, but Commissioner did not advert to grounds of appeal‑‑‑Principle of equity and natural justice demanded that adequate opportunity be provided to the appellants to put forth their point of view‑‑Defective order of Commissioner was set aside` remanding the case with direction to decide afresh in accordance with law taking into consideration pleadings of the parties.
Syed Altaf Hussain Shah for Petitioners.
Muhammad Rafique Arif for Respondent No.1.
2000 M L D 1987
[Board of Revenue, Punjab]
Before Shahzad Hassan Pervez, Member
MUHAMMAD YOUNUS---Petitioner
versus
THE STATE---Respondent
R.O.R. NO-943 of 1998, decided on 23rd May, 2000.
Colonization of Government Lands (Punjab) Act (V of 1912)---
----Ss. 10 & 24---Lease of land under Live-Stock Breeding Scheme--Resumption of land---Lessee having failed to pay lease money within specified period, lease in favour of lessee was resumed in favour of the State---Lessee, who was Lambardar, and performed his functions on behalf of State as Village Officer ought to be vigilant of his obligations---Failure of Lambardar to pay lease money in respect of grant which he had in his possession as Lambardar, could be viewed seriously, but such breach being rectifiable he was directed to pay all outstanding amount to be reckoned by Colony Assistant within a period of one month.
Muhammad Aslam Rajput for Petitioner.
2000 M L D 2036
[Board of Revenue Punjab]
Before Shahzad Hassan Pervez, Member (Judicial‑I)
Ch. MUHAMMAD SHABBIR and 3 other‑‑‑Petitioners
versus
MUHAMMAD ASHRAF and 3 others‑‑‑Respondents
R.O.Rs. Nos.2392, 2436, 2393 and 2440 of 1991, decided on 4th July, 2000.
West Pakistan Land Revenue Act (XVII of 1967)‑‑
‑‑‑‑Ss. 4, 8, 9, 45 & 164‑‑‑Correction of Khasra Girdawari‑‑‑Jurisdiction of Collector and Additional Commissioner‑‑‑Collector by his order changed entry recorded in Roznamcha Waqiati and same was upheld in appeal by Additional Commissioner‑‑‑Order of Additional Commissioner was challenged in revision on ground that under instructions of the Board of Revenue, Additional Commissioner was not competent to hear appeal against order of Collector and that order passed by Additional Commissioner was bad‑‑‑Validity‑‑‑Order of Collector upheld by Additional Commissioner which had fulfilled requirement of law, equity and justice could not be termed bad merely because of instructions on the subject issued by Board of Revenue stipulating that cases against order of Collector should be heard by . Commissioner himself‑‑‑Definition of Commissioner under law had included the Additional Commissioner‑‑‑In absence of any illegality or infirmity in order of Additional Commissioner said order could not' be termed as bad merely because orders or executive instructions of Board of Revenue were not complied with.
Malik Ghulam Siddique Awan for Petitioners. Ch. Iqbal Ahmad Khan for Respondents.
2000 M L D 2064
[Board of Revenue Punjab]
Before Shahzad Hassan Pervez, Member (Judicial-I)
GOHAR ALI ---Petitioner
versus
JAFAR HUSSAIN and another---Respondents
R.O.R. No. 1292 of 1991, decided 1st August, 2000.
Colonization of Government Lands (Punjab) Act (V of 1912)---
----Ss. 10 & 30---State land---Proprietary rights---Grant of---Revision petition---Petitioner claimed proprietary right in respect of land in question contending that he was State tenant of land---Petitioner had claimed that his father was State tenant of land on recommendation of Cooperative Farming Societies---Evidence on record had proved that Cooperative Farming Societies were debarred from making any recommendation for allotment of land---Land in dispute having not been proved to be allotted to petitioner as State tenant, he was not vested with status of State tenant of land in dispute to claim proprietary rights in respect thereof.
Agha Taj Muhammad for Petitioner.
Respondent: Ex parte.
2000 M L D 46
[Election Tribunal Balochistan]
Before Justice Nasirul Mulk,,Election Tribunal
ANWAR SAIFULLAH KHAN‑‑‑Petitioner
versus
Haji MUHAMMAD KABIR KHAN‑‑‑Respondent
Election Petition No.62 of 1997, decided on 7th June, 1999.
(a) Representation of the People Act (LXXXV of 1976)‑‑‑
‑‑‑‑‑S. 70‑‑‑Declaring the election void as a whole‑‑‑Conditions‑‑‑‑Two conditions must be fulfilled before an election could be declared as a whole void firstly that any person had failed to comply with the provisions of Representation of the People Act, 1976 and the Rules framed thereunder or extensive corruption or illegal practice prevailed in election and; secondly on account of said failure or corruption, election had been materially affected.
(b) Representation of the People Act (LXXXV of 1976)‑‑‑
‑‑‑‑Ss. 7(4), 9(1), 26, 52 & 70‑‑‑Election petition‑‑‑Evidence on record had fully proved that no polling at female booths of one of the polling stations was held because no female staff was provided to conduct the polling‑‑‑Failure of Returning Officer to appoint female staff at the female booths, would amount to failure of Returning Officer to comply with mandatory provisions of S. 9(1), Representation of the People Act, 1976‑‑‑Provisions .of S.. 26, Representation of the People Act, 1976 had provided that Election Commission would fix not less than eight hours for holding of polls‑‑‑Nine hours were fixed for polling starting from 7‑00 a.m. but polling in one of the polling stations started at 12‑00 noon, leaving four hours for polls and that happened due to non‑availability of polling staff at the said polling station‑‑‑Effect‑‑‑Female voters of said polling station having been deprived to cast their votes, that fact alone had materially affected result of election‑‑‑Election petition was allowed and election was declared to be void as a whole.
Abdullah and others v. Abdul Karim PLD 1968 SC 140; Gopal Das v. Sri Thakurji AIR 1943 PC 83; Muhammad Sadiq v. Federation of Pakistan 1981 MLD 1; Zerina v. Fatma Bi PLD 1995 Kar. 388; Saeed Hassan v. Piyar Ali PLD 1976 SC 6; Muhammad Yousaf Khattak v. S.M. Ayub PLD 1973 SC 160; Mohan Singh v. Bhanwarlal AIR 1964 Madh. Pra. 137; S.M. Ayub v. Syed Yousaf Shah PLD 1976 SC 486; Jam Mashooq Ali v. Shah Nawaz Junejo 1996 SCMR 1426 and 1996 MLD 1608 ref. '
Muhammad Sardar Khan for Petitioner. Qazi Muhammad Anwar for Respondent.
Date of hearing: 1st March, 1999.
2000 M L D 1832
[Election Tribunal Balochistan]
Before Justice Iftikhar Muhammad Chaudhary, Election Tribunal
Dr. HAMID KHAN ACHAKZAI‑‑‑Petitioner
versus
BEHRAM KHAN ACHAKZAI‑‑‑Respondent
Election Petition No. 8 of 1997, decided on 16th August, 1999.
(a) Representation of the People Act (LXXXV of 1976)‑‑‑
‑‑‑‑Ss. 46, 52 & 64‑‑‑Election petition‑‑‑Application for opening of packets of ballot‑papers for inspection‑‑‑Procedure‑‑‑Petitioner, an unsuccessful candidate, during pendency of election petition wherein election of returned candidate was challenged, had filed application under S.46 read with S.64 of Representation of the People Act, 1976 for ordering opening of packets of ballot‑papers for purpose of inspection and counting of valid ballot‑papers of six polling stations‑‑‑Validity‑‑‑Election Tribunal, at any stage of proceedings in election petition had jurisdiction to exercise its power under S.46 of Representation of the People Act, 1976 and if petitioner would fail to succeed on that score then it would be seen whether petitioner was entitled to press for disposal of election petition on merits.
Sardar Abdul Hafiz Khan v. Sardar Muhammad Tahir Khan Looni and 13 others 1999 SCMR 284; PLD 1963 SC 553; PLD 1972 SC 25; NLR 1985 (Civil) 790; PLD 1986 Jour. 46; PLD 1987 SC 213; AIR 1987 SC 1577; 1987 SCMR 1987; 1988 CLC 944; 1996 SCMR 336; PLD 1957 SC (Pak.) 301; 1994 SCMR 446; Jamaluddin Shah v. Abdul Sattar and 13 others PLD 1986 Jour. 146; Sardar Gul Khan Khitab v. Javald Abbasi and 4 others 1988 CLC 945; Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336 and PLD &1957,SC (Pak.) 307 ref.
(b) Representation of the People Act (LXXXV of 1976)‑‑‑
‑‑‑‑S. 33‑‑‑Object of S.33, Representation of the People Act, 1976‑‑‑Object of enacting provisions of S.33 was to avoid bogus voting‑‑‑If conditions contained in S.33 were fulfilled, they would provide a guarantee that a ballot‑paper had been handed over by Presiding Officer to the elector, whose name was mentioned in electoral roll of area‑‑‑Such law is promulgated with an aim to ensure fair election among candidate and to achieve the object it was necessary to comply with each condition laid down by statute strictly and departure from such provision would tantamount to make, the law ineffective which would pave way for bogus voting.
Col. (Retd.) Syed Mukhtar Hussain Shah v. Wasim Sajjad and 30 others PLD 1986 SC 178; Jamshed Ahmad Khan and 2 others v. The SDM/Assistant Commissioner Garden Sub‑Division, Karachi and others PLD 1987 SC 213; Dr. Sher Afghan v. Aamar Hayat Khan and 2 others 1987 SCMR 1987 and 1999 SCMR 284 ref.
(c) Representation of the People Act (LXXXV of 1976)‑‑‑
‑‑‑‑Ss. 33, 46, 52, 69 & 70‑‑‑Election petition‑‑‑Declaring election void as a whole‑‑‑Validity‑‑‑Declaring a person other than the returned candidate as elected‑‑‑Recalculation of votes‑‑‑Conditions‑‑‑Re‑calculation of votes only in respect of six polling stations of constituency was undertaken on allegation of certain irregularities‑‑‑No objection of any nature having been raised in respect of remaining polling stations, election of said polling stations could not be considered to be void and opinion expressed by voters in said polling stations could not be disregarded merely for the reason that in disputed six polling stations, illegalities and irregularities had been noticed during process of polling‑‑‑Since as a result of re‑calculation petitioner had a lead of 688 votes over respondent No. 1, he had secured more votes than the respondent No. l‑‑‑Application filed by petitioner under S.46 of Representation of the People Act, 1976 was allowed in circumstances and notification in pursuance whereof respondent was declared returned candidate, was set aside with direction to Election Commission to issue notification in favour of petitioner declaring him to be‑ successful candidate of the constituency concerned.
Iftikhar Hussain Gilani, Ehsanul Haq and S.A.M. Qadri for Petitioner.
Maqbool Elahi Malik and Chaudhry Muhammad Hussain, for Respondent No. 1.
Malik Sikandar Khan, A.‑G. and Noor Muhammad Achakzai, Addl. A.‑G. (on Court's Notice).
Date of hearing: 23rd July, 1999.
2000 M L D 1224
[Election Tribunal N.‑W.F.P.]
Before Justice Nasirul Mulk, Election Tribunal
Malik MUHAMMAD AYUB BHATTANI‑‑‑Petitioner
Versus
HABIBULLAH KHAN KUNDI‑‑‑Respondent
Election Petition No. 16 of 1997, decided on 31st May, 1999
Representation of the People Act (LXXXV of 1976)‑‑‑
‑‑‑‑Ss. 52 & 55‑‑‑Election petition‑‑‑Petitioner, an unsuccessful candidate had called in question election of returned candidate on allegations that the returned candidate was defaulter of Bank loan; that he had failed to disclose in his nomination papers certain properties that he owned; that properties disclosed by returned candidate were undervalued and that he had committed corrupt and illegal practice in the election‑‑‑Petitioner not only had not led any evidence to prove allegations against returned candidate but also did not mention them in his examination‑in‑chief and only reference to said allegations was made by him in form of suggestions made to returned candidate who had appeared as his own witness‑‑‑Returned candidate .had denied allegations‑‑‑Effect‑‑‑Incumbent upon petitioner to prove allegations he had made in his election petition, but on denial of returned candidate, petitioner having failed to produce any evidence in his support, issues regarding allegations were decided in the negative‑‑‑Testimony of witnesses produced by petitioner regarding purchase of votes by returned candidate was highly doubtful‑‑‑Such testimony regarding purchase of votes could not be taken into account because petitioner in his election petition had not given any detail of votes allegedly purchased by the returned candidate‑‑‑In absence of any evidence regarding any corrupt and illegal practice allegedly committed by returned candidate in election, election petition was dismissed.
Muhammad Amin Khattak for Petitioner.
Qazi Muhammad Anwar for Respondent.
Date of hearing: 24th May, 1999.
JUDGMENT
This Election Petition has been filed by Malik Muhammad Ayub Khan Bhattani, a candidate for the election to the N.‑W.F.P. Constituency No.PF‑57, Tank held on 3rd February, 1997, against the returned candidate Habibullah Khan Kundi. The returned candidate, respondent No. l herein, had polled 10372 votes whereas the petitioner was the runner‑up securing 6958 votes. There were eight other contesting candidates, who were impleaded as respondents in the Election Petition but had polled insignificant votes. Respondent No. l alone contested the Election Petition and filed his written statement.
During the initial hearing of the Election Petition, before the evidence was recorded, two applications were made, one by the petitioner and the other by respondent No. 1. The petitioner prayed for examining certain witnesses not named in the list of witnesses filed with the Election Petition, and placing on file certain documents, whereas respondent No. l in his application prayed that the Election Petition be dismissed summarily because the main allegation against the respondent was that he was a defaulter and had concealed certain facts in his nomination papers but since section 76‑A of the Representation of the People Act, 1976 (hereinafter referred to as the Act), which was added by an Ordinance had lapsed, the Election Petition could not proceed. Both these applications were dismissed by this Tribunal by Order, dated 20th October, 1997 and the parties were allowed to adduce evidence on the available record.
From the controversies arising out of the pleadings of the parties the following issues were framed:‑
(1) Whether petitioner has a cause of action?
(2) Whether the election petition is maintainable?
(3) Whether the petition is liable to dismissal on the ground that it is accompanied neither by list of witnesses nor supporting affidavits of the witnesses? '
(4) Whether respondent No. 1, his spouse and children have defaulted in repayment of loan of Rs.4,29,06,750, or any other amount, to the Agriculture Development Bank in respect of their project, called Agro Oil Extraction Industries Ltd. D.I. Khan, and therefore incurred disqualification? , (5) Whether respondent No. l was disqualified from contesting the election on account of being defaulter of loan due to Agriculture Development Bank of Pakistan for Rs.262,40,000 and National Bank of Pakistan for Rs.15,00,000?
(6) Whether respondent No. l in his declaration with the nomination paper had undervalued his:
(a) Bungalow No. 220, Sector 7, Street 21, Islamabad, (b) 209 Kanals of agricultural land known as "Kundi Gardens" D.I.
Khan, and
(c) Two vehicles Toyota Land Cruiser Registration No.PRU‑777 Model 1991 and Toyota Land Cruiser Registration No. DNB‑99 Model 1991, and to what effect?
(7) Whether respondent No.l had failed to disclose and declare in his
nomination papers:
(a) house owned at Gul Imam, Tank, (b) agricultural land of 400 Kanals at Mamrez Jamal, Tank, (c) 12000 Kanals at Ahmad Nagar, Tank, (d) One bungalow No:53, Sector G‑2, Hayatabad, Peshawar, (e) Four Kanals plot at Hayatabad and
(f) residential apartment in U.K. and to what effect?
(8) Whether respondent No. l by using his influence and illegal practices managed to poll bogus votes and converted the result in his favour at polling station of Government High School. Pai, Gul Imam? If so, its effects?
(9) Whether respondent No. l conducted illegal practice of purchasing votes? If so, its effects.
(10) Relief.
The petitioner besides appearing as his own witness produced four witnesses whereas respondent No. l alone testified for himself. The evidence is discussed issue‑wise.
Issues ~os.4. 5, 6 and 7.‑‑‑
' 4. These issues are taken together because they are based on the allegations made in the Election Petition that the respondent No.l was a defaulter of bank loans and that he had failed to disclose in his nomination papers certain properties that he owned and that the properties he did disclose were undervalued. More specifically, Issue No.4 relates to default in repayment of loan of Rs.4,29,06,750 taken from the Agriculture Development Bank. Issue No.5 again is based on the allegations of a loan obtained from the Agriculture Development Bank amounting to Rs.262,40,000 and Rs.15,00,000 from the National Bank of Pakistan which were not repaid. Issue No.6 relates to undervaluing of respondent No.l of a house in Islamabad, 209 Kanals of Agricultural Land in D.I. Khan.and two Toyota Land Cruisers. Issue No.7 was framed on the allegation that the respondent No.l had failed to disclose in his nomination papers certain properties, namely, a house in Tank, 400 Kanals of agricultural land in Tank, another 12000 Kanals of land in Ahmad Nagar, Tank, one bungalow at Hayatabad, Peshawar,. four Kanal plot at Hayatabad and residential apartment in U.K.
6 It was incumbent upon the petitioner to prove the allegations that he had made in the Election Petition. He had failed to produce any evidence ink support of the above issues. Respondent No. l had denied the suggestions made regarding these allegations. All these issues are, therefore, decided in the negative. Since the allegations are not proved it is not necessary to rule) upon the objection of the learned counsel for respondent No.l that the, disqualification on account of default in payment of bank loans and nondisclosure of facts in nomination papers included by section 76‑A of the Act,' added by an Ordinance, does not exist after the lapse of the Ordinance by afflux of time.
Issue No.8.‑‑‑
Issue No.9.‑‑‑
This issue has been framed on the basis of the allegation made in paras. 7 and 8 of the election petition of corrupt and illegal practice during the election by respondent No.l. It was alleged that respondent No.1 had collected a number of identity cards from the voters which were found in the boot of the car of a close relative of respondent No. l and that the agent of the said respondent purchased votes at different Polling Stations for Rs.200 to 1,000. In support of these allegations the petitioner examined three witnesses, Alamgir P. W. 1, Halim Khan P. W.2 and Muhammad Iqbal P.W.3. The affidavits of none of these witnesses had been filed alongwith the election petition. .
P.W.1 had alleged that on 26‑1‑1997, a week prior to the polling day, Bashir Kundi and Majid Khan relatives of respondent No.l had paid Rupees one lac to one Haji Gulab of Ali Khel Kali for the purchase of votes. It was alleged that on the same day the two relatives had also paid Rs.60,000 to Sarwar, Mehraban and Ghulam Badshah, to purchase votes in village, Lagar Khel. The witness claimed that these transaction took place in the Election Office, of respondent No. l at Tank. In cross‑examination he admitted that he had not made any complaint about these transactions to the Returning Officer or to any Election Authority. In fact for the first time these allegations were made before the Tribunal as the witness had not even filed an affidavit. The witness, however, conceded that' Haji Gulab Sarwar, Mehraban and Ghulam Badshah had not in his presence purchased any vote. The petitioner, who testified as P.W.5 stated that he had deputed P.W.1 to the Election Office of respondent No. l to collect information about purchase of votes by the respondent. He admitted that P.W.1 was his supporter. It is unbelievable that any transaction regarding purchase of votes would take place in the Election Office in the presence of the support of rival candidate. Furthermore, both P.W.1 and P.W.5 admitted that they had not made any report about these transactions to the Election Authorities. Thus, their testimony regarding purchase of votes is highly doubtful. Furthermore, as pointed out by the learned counsel for the petitioner the testimony of P. W.1 regarding purchase of votes cannot be taken into account because according to section 55(1) of the Act; every election petition must contain particulars of the corrupt or illegal practice, including full statement of the names of the parties alleged to have committed such practice and the date and place of the commission of such practice, whereas in the Election Petition the petitioner had neither given the names of Bashir Kundi, Majid Khan nor the name of P. W.1, or have mentioned the two transactions. In fact the election petition does not make any reference to the transactions which P.W.1 had alleged to have taken place in his presence. Rather P.W.1 concedes in the cross-examination that he had informed the petitioner about the incidence after he had filed the election petition. This also further contradicts the statement of petitioner himself when he says that he had knowledge about this incident one week prior to the polling day. The statement of P.W.1 is, therefore, ruled out of consideration. The allegation regarding payment for the purchase of votes on behalf of respondent No. l thus does not stand proved. .
P.W.2 Halim Khan had alleged that two of the supporters of respondent No. l namely, Nasir Khan and Ramzan, had purchased 80 to 100 votes for Rs.300 to Rs.1,000 per vote at Polling Station, Chadrer. Again neither the affidavit of this ‑witness was filed with the election petition nor were these allegations made by him in the examination‑in‑chief were incorporated in the election petition. The accusations were made for the first time before this Tribunal. On this score alone his testimony can be excluded from consideration. Nevertheless, his statement does not inspire confidence at all. He admits that he was not a voter at Polling Station Chadrer, nor was he appointed as polling agent. He claims that Nasir Khan and Ramzan were sitting in a room near the school and that he sat with them for two hours in which he saw them purchasing votes. Surprisingly, he did not report the purchase of the votes to the police or the Army personnel present at the Polling Station. Rather he states that he had informed the petitioner of the sale of votes after the election petition was filed. When asked in crossexamination he could not give the names of the persons who sold their votes. He admitted that the persons who sold their votes did not have the ballot-papers with them at the time of the sale. In the light of the foregoing infirmities in the testimony of P.W.2 his statement is highly doubtful. There is no other evidence regarding the purchase of votes at Polling Station Chadrer. The said allegation, therefore, does not stand proved.
Muhammad Iqbal was examined as P. W.3. He had alleged that he noticed the presence of three to four thousand identity cards in the boot of Motor Car No.DN‑47 driven by Qaisar Khan Kundi, a relative of respondent No. 1. This he did at 4‑04 p.m. on the polling day when he wanted to take a lift and had signalled Qaisar Khan Kundi to stop. He claimed that Qaisar Khan Kundi was engaged in the election duty and that on his inquiry he had opened the boot of the car where he noticed the identity cards. It does not stand to reason as to why Qasiar Khan Kundi, had been involved in bogus voting through identity cards, would open the boot for this witness to see. This witness had also not executed any affidavit for filing with the election petition. He does not state the purpose for which the identity cards were being used. Mere statement that he saw three to four thousand identity cards, even if believed, would not prove any corrupt or illegal practice. In the election petition neither the petitioner has given the registration number of the car nor had he mentioned the number of identity cards. He did not even state the, name of either P.W.3 or Qaisar Khan Kundi, the person who allegedly was carrying the identity cards. Thus, there is no evidence that any fake identity cards had been used by respondent No. l to poll bogus votes.
The testimony of the petitioner (P.W.4) is nothing more than reiterating the allegations made by P.Ws.l, 2 and 3 and is based on the information furnished by these witnesses‑
It follows, therefore, that there is no evidence that respondent No: l had indulged in corrupt or illegal practices during the election. Issue No.9 is decided in the negative.
Issue No. 10(Relief).‑‑‑
H. B. T. /E.P‑187/N.‑W. F. P. Election petition dismissed.
2000 M L D 1235
[Election Tribunal Sindh]
Before Justice Ali Muhammad Baloch, Election Tribunal
BHAGWANDAS‑‑‑Petitioner
Versus
RETURNING OFFICER FOR NON‑MUSLIM SEATS IN THE
PROVINCIAL ASSEMBLY and 28 others‑‑‑Respondents
Election Petition No. 104 of 1997, decided on 21st April, 1999.
Representation of the People Act (LXXXV of 19'76)‑‑‑
‑‑‑‑S.52‑‑‑Election petition‑‑‑Reserved seats for non‑Muslim (Hindus and Scheduled Castes) for National Assembly .of~ Pakistan‑‑‑Discrepancies and miscalculations in recording and consolidation of number of votes in the relevant forms‑‑‑Effect‑‑‑Where there were such discrepancies and miscalculations, fresh tabulation of votes secured by the petitioner and respondent had become necessary‑‑‑Returning Officer was directed to carry out the retabulation and the matter was remanded for declaring, the result of contesting parties and to issue fresh notification if there happened to be any change in the present result.
Jhammat Jethanand and Partab Rai for Petitioner.
Nooruddin Sarki for Respondents.
Date of hearing: 31st March, 1999.
JUDGMENT
The petitioner Bhagwandas son of Khatu Mal was one of the contesting candidates alongwith Respondents Nos.3 to 29, for the four reserved seats for non‑Muslims (Hindus and Scheduled Castes) for the National Assembly of Pakistan during the elections held on 2nd February, 1997. Four candidates, out of these contesting candidates securing the highest number of votes were declared elected by the Election Commission of Pakistan (the Commission). After the election process was over, the Commission notified the following four candidates, having secured the highest number of votes, shown against them, elected to the National Assembly of Pakistan:
Sr. No. Name Votes Secured
(1) . Kishanchand Parvani 33,717
(2) Dr. Khatumal . 31,049
(3) Rana Chandar Singh 27,459
(4) Kishan Bheel 27,178
The petitioner, vide this Election Petition, under section 52 of the Representation of the People's Act, 1976 (the Act) has challenged the election of respondent No.6, Kishan Bheel, alleging that the provisions of law and the rules in respect of counting of votes were violated, the recounting and tabulation done by the Commission's staff and the copies of the results of counts in the necessary Forms were neither prepared nor copies thereof supplied to the petitioner or his agents in spite of his complaints sent prior to the official declaration of the results by the Commission, but the petitioner was neither heard nor given any chance to represent his point of view, with the result that incorrect tabulation was done resulting in declaring him as a candidate having secured lesser number of votes than Mr. Kishan Bheel, and thus, his name was placed at Serial No.5, although the number of votes secured by him were more than secured by Kishan Bheel. The petitioner further Claimed that the election as a whole be declared void under the Act. He specifically claimed that the results furnished by the Returning Officer in Form XVIB on 15‑12‑1997 to him showed that Kishan Bheel had secured 27,178 votes while the petitioner had secured 24,988 votes but, in fact, the petitioner had secured 27,404 votes. The petitioner had based this claim on the documents which were issued to him by the Commission, and he had pointed out the instances where he had actually secured more votes, but the same were incorrectly tabulated, and when a correct tabulation was made, it became clear that the number of votes secured by the petitioner was 27,404 and, thus, claimed that he had an edge to the extent of 227 votes over his next in line candidate, viz Kishan Bheel, who secured lesser votes than him:
The petitioner, therefore, filed this petition with the following prayers to declare:
'(i) The election as a whole Was void
or
(ii) That the election of the returned candidate viz Mr. Kishan Bheel, respondent No.6 was void and that the petitioner be declared to have been duly elected instead of respondent No.6."
Only respondent No.6 (Mr. Kishan Bheel), the last candidate among 'the four returned candidates, contested the petition while the rest of the candidates did not contest.
Respondent No.6, in his written statement, in general terms denied the allegations of the petitioner. He denied the discrepancies in calculation or tabualtion or in the consolidation of the counting of the votes of the petitioner. He contended that Form XVIA, on which the petitioner relies, which shows the number of votes secured by him to be more than what was declared by the Commission earlier, was, manipulated by the petitioner himself. The respondent No.6 also took various legal pleas about the maintainability of the petition.
The Tribunal framed the following issues for decision of this election Petition:
"(1) Whether the Petition is not maintainable on account of non‑filing of the affidavit‑in‑evidence by the petitioner?
(2) Whether the petitioner had secured 27404 votes? It so, whether the petitioner is entitled to be declared as a successful candidate in place of respondent No.6?
(3) Whether the election of respondent No.6 is liable to be declared void as the votes in favour of respondent No.6 have been improperly calculated, documented and counted? If so, to what effect?
(4) Whether there exists discrepancy and miscalculation in counting and consolidation of the votes of the petitioner in Forms XIV, XVIA and XVIB? If so, to what effect?
(5) Whether the petitioner is entitled to the re‑tabulation of the results?
(6) What should the order be?"
On the above Issues, the parties were called upon to lead their evidence
From the side of the petitioner, Mian Muhammad Javed, Civil Judge, Islamabad, the Returning Officer concerned, was examined. In the evidence, he produced Form XVIB (Exh.l‑A), which showed the final compilation, and consolidation of the results of the count of votes furnished by the Assistant Returning Officers to him, which showed total number of votes secured by the petitioner as 24,988 and the number of votes secured by respondent No.6 as 27, 178. However, he admitted in his deposition that the number of votes secured by the candidates during the above election from National Assembly Seats Numbers 151 to 195 (Commonly known as NA‑151 to NA‑195), belonging to Province of Sindh, were not mentioned in the Form XVIB (Exh. 1/A) separately against each Seat. He, however, stated that there was a note from the Returning Officer (Mr. Mehboob Qadir, Senior Civil Judge, First Class, Islamabad), that the total number bf votes secured by the candidates in the above described seats (NA‑151 to NA‑195) had been shown against the entry of NA‑196 in consolidated form. He also stated that it was based on a Fax Message sent by Provincial Election Commissioner, Sindh. He admitted in his deposition that the petitioner had made applications to the Election Commission of Pakistan on 10‑2‑1997, 11‑2‑1997, 12‑2‑1997, 15‑2‑1997, 3‑3‑1997 and 15‑3‑1997 and he produced such applications as Exhs. D/1 to D/6. In all these applications, the petitioner had disputed the correctness of the Count of votes, and had disputed the consolidation and tabulation of the votes and had stated that necessary copies of the count were not supplied to him or his agents by the respective AROs and that less number of votes were communicated to him, and that, therefore, he may be provided certified copies of Form XIV and Form XV so that correct tabulation and counting of the votes be possible and so the names of the actual successful candidates could be ascertained. The orders passed by the Returning Officer on such applications were to the effect that AROs concerned may be directed to furnish a station-wise result of the counts, meaning thereby constituency‑wise. The witnesses, Mian Muhammad Javed, admitted that the copy of Form XVIB (Exh. 1/A), which shows the number of votes secured by the candidates in NA‑151 to NA‑195, in a consolidated form, did not bear signatures or initials of any authority, at the required place, where such note was added; although at the end of Form XVIB, signatures of the Returning Officer are present. Thus, correctness of the note was questioned. The said note, which is very crucial one for the purpose of tabulating the count of votes in respect of the votes secured by the candidates in the above constituencies of the National Assembly, has left a doubt whether the count in question is authentic or not.
The next witness examined by the petitioner was Mrs. Rubina Farooqui, Additional District and Sessions Judge, Karachi South, who was the Assistant Returning Officer for conducting elections for the non‑Muslims Seats in National Assembly from the Province of Sindh. She, in her evidence in respect of Form XVIA, stated that no such Form was provided to her nor the same was available with her and she could not produce the same. She further stated that she had received the results of the candidates from the different constituencies of Sindh by Fax and consolidated the same in Form XVIA, (16‑A). She stated that the Provincial Election Commissioner at Karachi, then communicated the results to the Election Commission of Pakistan at Karachi. As regards one constituency NA‑190, of which the witness Rubina Farooqui was the Returning Officer. (at the same time she was Assistant Returning Officer of all the seats of National Assembly in Sindh for non‑Muslims), she had received Form XVIA, prepared by all the Presiding Officers in Sindh, in respect of the minority votes, which were forwarded by her to the Election Commission of Pakistan through the Provincial Election Authority. This suggested that at least for one constituency (NA‑190) Form XIV was available but the results thereof were not brought over in Form XVIA against even that seat. From her crossexamination, it is gathered that in fact the petitioner Bhagwandas had protested/objected in respect of the consolidation of the votes before the Assistant Returning Officer, but such objection was not decided by the ARO and had been directed to the Returning Officer, Islamabad. The Returning Officer, Islamabad, had not given the chance to the petitioner to be heard on his objections. The results tabulated in Form XVI‑A by this witness are actually not in Form SVIA, but there was form known as Form XVI, that Form was turned into Form XVIA in hand, by adding "A" in front of Roman "XVI". Thus', in fact, it cannot be said that the entries produced by this witnesses as Exh. 2/D are actually the entries in Form XVIA, because the columns of Form XVI are different from the columns of Form XVIA. In his affidavit before the Tribunal, petitioner claimed that in fact the number of votes secured by him in different National Assembly seats were incorrectly accounted' and less than actual votes secured by him were mentioned. He gave such example of NA‑150/4, Rahimyar Khan, NA‑156, Jacobabad‑1, NA‑159, Naushero Feroze‑3, NA‑205, Khuzdar and NA‑206, Lastlella.
9
Further, the Petitioner in his affidavit contended that by correct tabulation of the votes, it will be seen that Mr. Kishan Bheel had secured 27,178 votes while against Petitioner's name the number of votes stand at 27,404. Thus, according to him, the number of votes secured by him are more than the votes secured by Kishan Bheel, Respondent No.6.
Such contention of the petitioner stands fortified from the documents discussed above and some other documents which have been produced by the petitioner alongwith his Misc. Applications Nos.C‑2 and C3 which applications were moved during the pendency of the petition and were allowed by this Tribunal. The documents, being relevant, were held to be fit for consideration at the time of arguments. These documents consist of a letter from Mian Muhammad Javed, Returning Officer, non‑Muslims seats, Islamabad, addressed to the petitioner dated 1‑9‑1998. According to this letter it is certified that in previous statement containing consolidated results of NA‑151 to NA‑196, the number of votes secured by the petitioner in Constitutency NA‑155, it was shown that the petitioner had secured 229 votes but on rechecking the second page of Form XIV it was found that petitioner had actually secured 299 votes. Thus, in many other respects the documents produced by the petitioner clearly suggest that grave mistakes were committed as regards the tabulation of the votes and, on top of all, no entries appear in Form XIV. at least this proves that copies of Form XIV were not available with the AROs to be filled in and, therefore, it is not known as to under what method and rule the ARO provided the lists of the votes secured by each candidate to the Election Commission for its tabulation in Form XVIA.
For all the reasons discussed above, my findings on the Issues are as under:
Issue No. l:
This Issue is decided in Affirmative that the Petition is maintainable as subsequently the affidavit‑art‑evidence, filed by the petitioner was accepted and cross‑examination on that affidavit was conducted and in the interest of justice, it was allowed.
Issue No.2:
My finding on this Issue is that it cannot be ascertained as to what is the actual number of votes ‑secured by the petitioner and respondent No.6, unless fresh and correct tabulation is made after rechecking the necessary result sheets furnished by the Presiding Officers .in respect of the National Assembly seats where the petitioner and respondent No.6 had secured votes. Therefore, it is necessary to remand this case to the Returning Officer for retabulation of the votes secured by the petitioner and respondent No.6 so that correct result could be arrived at and notified by the Commission.
Issue No.3:
My folding on this Issue is that till retabulation is made by the' Returning Officer, the result of the election in favour of the respondent No.6 cannot be declared to be void. This will be, however, subject to the retabulation made by the concerned Returning Officer, as observed in the finding of Issue No.2. .
Issue NoA:
The finding on this Issue is that certainly there existed discrepancies) and mis‑calculations in recording and consolidation of the number of votes secured by the petitioner and respondent No.6 in the relevant Forms and therefore, it has been ordered that fresh tabulation of the votes secured by the petitioner and respondent No.6 has become necessary, as decided under Issue No.2.
Issue No.5:
Finding on this Issue is in positive.
Issue No.6:
The Petition is allowed to the extent that the matter is remanded to the Returning Officer for retabulation of the votes of the petitioner and the respondent No.6 and for declaring the result of these two candidates after such exercise and for asking the Commission to issue fresh notification, if there happens to be any change in the present result in respect of'the petitioner and, respondent No.6.
The Returning Officer at Islamabad is directed to carry out the retabulation, as directed above, within a period of fifteen days from the receipt of a copy of this Order.
Q.M.H./M.A.K./188/Elect.(Trib.) Order accordingly.
2000 M L D 1282
[Election Tribunal Sindh]
Before Justice, Rasheed Ahmed Razvi, Election Tribunal
MUHAMMAD YOUSUF KURESHY‑‑‑Petitioner
Versus
Khanzada IMRAN HASSAN KHAN‑ ‑‑Respondent
Election Petition No. 109 of 1997, decided on 15th November, 1999.
Representation of the People's Act (LXXXV of 1976)‑‑‑--
---‑‑Ss. 52, 103 & 104‑‑‑Election petition‑‑‑Allegations of illegal and corrupt practice‑‑‑Proof‑‑‑Election of returned candidate had been called in question' on allegations of illegal and corrupt practices in election and also on the ground that provisions contained in Ss. 49 & 50 of Representation of the People's Act, 1976 had been violated by the returned candidate‑‑‑Burden was upon petitioner/unsuccessful candidate to prove all such allegations, beyond shadow of doubt by producing reliable and convincing evidence‑‑Petitioner having failed to discharge said burden in absence of sufficient material on record to establish that returned candidate was involved in illegal and corrupt practice which could disentitle him to continue in his office, election of returned candidate could not be declared void.
Muhammad Irfan Khan v. Javaid Ahmed Chattari and 20 others 1998 CLC 1241; Syed Saeed Hassan v Pyar Ali and 7 others PLD 1976 SC 6; Pir Matook Ali v. Rais 'Muhammad Usufi and 11 others 1986 CLC 1329; Muhammad Saeed and 4 others v. Election Petition Tribunal West Pakistan and others PLD 1957 SC 91; Muhammad Yousaf Khan Khattak v. S.M. Ayub PLD 1973 SC 160; Munsif Khan v. Sardar Haider Zaman and others 1986 CLC 1257 and Mian Ghos Muhammad v. Syed Morad Ali Shah and others 1987 CLC 861 and Dr. Muhammad Shafiq Boi Khan v. Hafiz Muhammad Taqi and 12 others 1986 MLD 2220(2) ref.
Petitioner in person.
Chowdhry Muhammad Jamil for Respondent No.8.
Dates of hearing: 9th. 16th October and 1st November, 1999.
JUDGMENT
This is an election petition, filed under section 52(2) read with sections 103(c) and 104 of the Representation of People's Act, 1976 (hereinafter called as the Act 1976) calling in question the election held on 3rd February, 1997 in respect of N.A. 191, Karachi, South‑III.
Brief facts of the case are that the petitioner and respondents Nos.1 to 15 contested the aforesaid election and as a result, the respondent No.8 namely Captain (Retired) Haleem Ahmed Siddiqui was declared elected. It is alleged in the memo. of petition that on a mass scale, corrupt and illegal practices were carried out during the election campaign by most of the candidates. It is further alleged that these candidates/respondents have failed to contest their respective elections strictly in accordance with the provisions of Act, 1976 and in violation of the Representation of the People (Conduct of Election) Rules, 1977; that hundreds of cloth banners and posters were displayed at public places. Hundreds of party flags were displayed on several buildings and at public places, throughout the constituency by the respondents, including M.Q.M., People's Party and Muslim League (Nawaz Group).
So far as the returned candidate Haleem Ahmed is concerned, the allegations of illegal and corrupt practices as narrated in the body of petition are as follows:--
(a) Haleem Ahmed caused wall chalking on a mass scale in the entire constituency which comprises of Mehmoodabad, Liaquat Ashraf Colony, Manzoor Colony, Hill Town, Punjab Colony, Azmat Town, all phases of Defence Housing Authority, parts of Clifton Cantonment and Karachi Cantonment and several other areas;
(b) That the election returns as provided under section 49 of the Act 1976 were not correctly submitted and that the returned candidates spent lacs of rupees on entertaining of voters including expenses of Iftar and Sehri and dinner at election offices.
(c) Several buses and Suzuki pick‑ups were engaged for bringing voters to the polling stations from the different parts of the constituency and loud speakers were used on the vehicle for convassing.
(d) Returned candidate Haleem Ahmed also paid election expenses of other candidates namely Salim Zia, Muhammad Sabir and Safdar A. Raheem.
(e) That, during the night of 2nd February, 1997 some 454 voters were collected and were kept in separate places, for which thousands of rupees were paid for their food and entertainment and that the election campaign was used for attracting voters by freely providing
None of the respondents except respondent No.8, the returned candidate, filed their written statements, denying allegations of the petition. It was claimed in the written statement of respondent No.8 that he had strictly followed the Code of election and other election rules. It has been specifically denied that banners, hoarding and posters were displayed in violation of code of conduct or that wall chalking as alleged in the petition was carried out. It was also denied that huge expenses were incurred for providing entertainment and food, such as Sehri and Iftari to the workers and supporters. Use of vehicles for election compaign was also denied. It was admitted that the returned candidate has shown expenses of printing of voters cards which also bear detail of three other candidates of Provincial Assembly but all belong to the same party namely Pakistan Muslim League (Nawaz Group) (hereinafter called as P.M.L). It was also pleaded that the petitioner has secured only 44 votes while returned candidate received more than 30,000 in a constituency consisting of 2,45,781 votes. With this rebuttal, it was prayed that the petition be dismissed.
As a result of above pleadings, following issues were framed on 6th August, 1997 by consent of the parties.
Consent issues.
(1) Whether respondent No.8 has contravened provisions of section 49 of Representation of the People's Act, 1976 (the Act)?
(2) Whether respondent No.8 has not submitted correct returns under section 50 of the Act and if so what is its effect?
(3) Whether respondent No.8 has indulged in bribery in terms of section 79 of the Act.?
(4) Whether respondent No.8 has indulged in corrupt practices in terms of section 78 of the Act?
(5) Whether respondent No.8 affixed hoarding, posters and displayed banners and indulge in wall chalking, in contravention of rules framed under the Act and if so, what is its effect?
(6) Whether the election of respondent No.8 is liable to be declared void?
(7) What should the decree be?
Issues Nos. 1 and 2.
Since both these issues are related to filing of returns and disclosure of election expenses and since both being interconnected, I propose to discuss these issues jointly.
Section 49 of the Representation of People's Act, 1976 (hereinafter referred to as the Act, 1976) is, in the shape of prohibition imposed upon a candidate for the purpose of keeping in check the expenses of his election compaign. According to the amended section 49 of the Act, 1976, the present limit is up to one million rupees in case of an election to a seat in the National Assembly. I wonder how a person belonging to a middle or lower middle class could dare to contest elections in Pakistan. The fate of such a person is the instant case. Now adverting to section 50 of the Act, 1976, it requires every contesting candidate to file returns of election expenses within 30 days after the publication of the name of returned candidate. Such statement shall contain all payments made by a candidate together with all bills and receipt; a statement of all disputed claims; a statement of all unpaid claims, if any, and a statement of all moneys, securities received or spent by any person for benefit of contesting candidate and his staff. Such election expenses are to be filed on the prescribed form accompanied by an affidavit of the contesting candidate.
On 6‑7‑1998 the respondent No.16, Returning Officer N.A‑199 namely Mr. Abdul Rasool Memon (IVth A.D.G. Karachi South) was examined as Exh. P/2. He produced the Election Returns of the respondent No.8 as well as a letter of petitioner, which were brought on record as exhibit P‑8/1 and P‑8/2 respectively. In Exh. P‑8/2 which is a complaint addressed to the Returning Officer of the petitioner, it was alleged that the returned candidate had engaged one Saleem Akhtar Wafa as painter for the work of wall chalking in the entire constituency. But the said person was not examined and it was also not stated how much amount was paid to that person for wall chalking and what was the total expenses incurred. It will be seen that the Election Returns of the respondent No.8 comprises of nearly two hundred pages, including receipts and vouchers. The petitioner was not able to point out a single voucher or any entry in the Exh. P‑8/1 to show that it is a case of concealment or misstatement. He amount shown in the returns is within the target amount as provided in section 49 of the Act, 1976.
Petitioner, who boycotted the election has received only 44 votes. He has examined Raza Hameed Farooqui who is a freelance Photographer, who has taken photographs of election compaign but was not able to produce any such photographs during his examination. Likewise, P.W.3, Mubarak Khan, Exh., 7, who was an election worker of the petitioner has filed a vague affidavit alleging that returned candidate Haleem Ahmed Siddiqui had indulged in performing acts prohibited by the Election Commission, such as hoisting banners, wall chalking, entertaining of votes etc. etc. But none of the prosecution witnesses were able to show that the election Returns filed by .the respondent No.8 was incorrect, false or erroneous or that the returned candidate exceeded the limits of election expenses fixed by the Act, 1976. It was stated by the petitioner that at the time of Iftar some of the workers of respondent No. 8 were found eating Iftari which fact was admitted by the witness of respondent No.8, but it was not established as to who had incurred the expenses on arranging Iftari. According to D. W.1. all such expenses have been mentioned in the election returns.
As a result of above discussion, I am inclined to hold that the petitioner has failed to establish that the returned candidate Abdul Haleem Siddiqui has violated the provisions of sections 49 and 50 of the Act, 1976. Both the issues are answered accordingly. .
Issues Nos. 3, 4 and 5.
....It is settled law that in election matters, in order to prove allegations of illegal and corrupt practices, the burden lies on the petitioner and that these allegations must be proved with such standard of proof as is required for proving a charge in criminal trial. In Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6, a Full Bench of Honourable Supreme Court held that the analogy of a criminal trial would hold good in the matter of corrupt of illegal practices which must be affirmative proved to the exclusion of a reasonable hypothesis consistent with the non commission of corrupt practices and that the benefit of doubt must go to the person against whom, a corrupt and illegal practice is alleged. (For further reference, case Pir Matook Ali v. Rais Muhammad Usufi and 11 others 1986 CLC 1329, Muhammad Saeed and 4 others v. Election Petitions Tribunal, West Pakistan and others PLD 1957 SC 91, Muhammad Yousaf Khan Khattak v. S.M. Ayub PLD 1973 SC 160, Munsif Khan v. Sardar Haider Zaman and others 1986 CLC 1257, and Mian Ghos Muhammad v. Syed Morad Ali Shah and others 1987 CLC 861 and the case of Dr. Muhammad Shafiq Boi Khan v. Hafiz Muhammad Taqi and 12 others 1986 MLD 2220(2). The rule laid down by Honourable Supreme Court in the case of Muhammad Saeed (supra) that a charge of corrupt practice is a quasi‑criminal charge and that in case of doubt, raised upon the evidence, its benefit must go to accused person, is the very foundation for determination of an election petition being tried before an Election Tribunal .... "
Issues Nos. 6 and 7.
Petition dismissed.
H.B.T./190/Elec. (Trib.) Election petition dismissed.
2000 M L D 270
[Federal Shariat Court]
Before Abdul Waheed Siddiqui, J
GUL REHMAN‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Judicial Criminal Appeal No. 109‑1 of 1999, decided on 30th August, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑Ss.364, 243 & 342‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4‑‑‑Confessional statement made by accused‑‑‑Non‑fulfilment of mandatory requirements of S.364, Cr.P.C.‑‑‑Effect‑‑‑Such an act of Trial Court was an illegality‑‑‑Where some‑ of the prosecution witnesses had already been examined provisions of Ss.24,3 & 342, Cr.P.C. would not be applicable.
1990 PCr.LJ 396 fol.
Dr. M. Aslam Khaki for Appellant.
Malik Manzoor Hussain, Addl. A.‑G., N.‑W.F.P.
2000 M L D 286
[Federal Shariat Court]
Before Abdul Waheed Siddiqui, J
AMINUR RAHMAN MALANGAI---Appellant
versus
THE STATE---Respondent
Criminal Appeal No. 82/1 of 1999, decided on 7th July, 1999.
(a) Medical jurisprudence---
---- Virginity---Unruptured state of hymen---Effect---Such state of hymen suggested that penetration had not taken place and that upto the time of medical examination no defloration had taken place and the alleged victim was virgo intacta.
Dr. C.K. Parikh's Textbook of Medical Jurisprudence and Toxicology rel.
(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---
----S. 10(3)---Penal Code (XLV of 1860), Ss. 452 & 506---Appreciation of evidence---Hymen of the victim was unruptured---Evidence of the victim was neither confidence inspiring, nor was corroborated by any other witness not even by the lady doctor who examined her---Report of Serologist was absent and it was not established beyond reasonable doubt that detected semen had its origin either from the accused or from the vaginal swabs of the victim--Case property remained with unidentified Moharrir for about 1-1/2 months and as such the safe custody of such articles could not be said to be out of the scope of doubt---Prosecution having failed to prove its case beyond reasonable doubt, conviction and sentence awarded by Trial Court were set aside and accused was acquitted.
1994 PCr.LJ 1616 distinguished.
Malik Rab Rawaz Noon for Appellant.
Ejaz Muhammad Khan, Addl. A.-G., N.-W.F.P. for the State.
Date of hearing: 7th July, 1999.
2000 M L D 302
[Federal Shariat Court]
Before Abdul Waheed Siddiqui, J
Mst. NOSHI---Appellant
versus
THE STATE---Respondent
Criminal Appeals Nos. 108-I and 111-I of 1998, decided on 16th November, 1998.
(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)--
----S.10(2)---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Despite the information having been received in advance by the Investigating Officer, he had conducted the raid clearly violating the mandatory provisions of S.103, Cr.P.C. which was not curable--Application for issuance of search warrant of the place of occurrence had been moved by the Investigating Officer after the raid had already been conducted---Prosecution, thus, had not come to the Court with clean hands---Prosecution evidence was contradictory and in conflict with medical evidence---Accused were acquitted on benefit of doubt in circumstances.
1998 PCr.LJ 1293 and PLD 1997 SC 408 ref.
(b) Administration of justice---
---- Rule of prudence---When a person does not come to the Court with clean hands, Court has to deal with him with caution in view of every possibility of malice and where there is a taint of malicious actions all proceedings become void.
N.A. Butt and Sardar Muhammad Irshad for Appellants.
Rana Fazal-ur-Rehman for the State.
Date of hearing: 16th September, 1998.
2000 M L D 313
[Federal Shariat Court]
Before Dr. Fida Muhammad Khan and Muhammad Khiyar Khan, JJ
MAQSOOD AHMAD‑‑‑Appellant
versus, MUHAMMAD ASGHAR and 4 others‑‑‑Respondents
Criminal Appeal No.69‑L of 1997, decided on 12th February, 1999.
Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑
‑‑‑‑S.11‑‑‑Criminal Procedure Code (V of 1898), S.417‑‑‑Appeal against acquittal‑‑‑Complainant, father of the abductee, could not be expected to put his honour at stake and spoil the career of his daughter by making a false charge of abduction against the accused‑‑‑Complainant was corroborated by another witness from his brotherhood who inspired confidence and could not be disbelieved simply because of his such relationship with the complainant ‑‑‑Abductee's statement was not shattered in cross‑examination‑‑Abductee was seen going with the accused who had abducted her by deceitful means with intent that she would be compelled to marry him and she was also seen with the accused while alighting from the bus before their arrest by the police‑‑‑Delay of three days in lodging the F.I.R. had been explained by the complainant‑‑‑Offence under S.11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, having thus been proved against the accused beyond any doubt, he was convicted thereunder and sentenced to undergo ten years' R.I. with fine.
Hasham Khan v. The State PLD 1991 SC 567 ref.
Muhammad Aslam Bajwa and A.D. Naseem for Appellants. Nemo for the State.
Date of hearing: 12th February, 1999
2000 M L D 386
[Federal Shariat Court]
Before Abdul Waheed Siddiqui, J
MUHAMMAD ABDUL QADOOS TARIQ---Appellant
versus
THE STATE---Respondent
Criminal Appeal No. 10-1 of 1999, decided on 25th August, 1999, (a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)--
----S.10(3)---Appreciation of evidence---Presence of non-exhibited school leaving certificate in judicial record---Effect---Judgment of Trial Court was silent as to who introduced that document into the judicial record and what exhibit number was allotted to the same---No question about non-exhibited school leaving certificate was asked from the accused in his statement under S.342, Cr.P.C.---Validity---Accused was prejudiced by way of sudden and silent introduction of such document into the judicial file---No chance having been given to the accused to disprove the same, accused was, therefore, condemned unheard---Principle of audi alteram partem having been denied to the accused, such document was excluded from the judicial record in circumstances.
(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)--
----S.10(3)---Plea of valid 'Nikah'---Age of bride victim girl, proof of--Onus to prove---Prosecution claimed the age of bride (victim) as 13/14 years at the time of 'Nikah'---Records of X-rays of the bride (victim) to determine her age were destroyed---No opinion of Radiologist with regard to the age of the bride (victim) was available and only a hearsay, speculative and flimsy evidence about the age was in the field---Effect---Prosecution failed to prove beyond reasonable doubt that bride (victim) was not a sui juris on the date when marriage was performed---In the absence of any such proof and in the presence of an affidavit sworn by the. bride (victim), love letters written by her to the accused as well as "Nikahnama", a conclusion could be safely drawn that the bride (victim) was pubert, major and sui juris and was a consenting party to marriage without any force, coercion, threat or deceipt--Such was a valid marriage and cohabitation was not Zina---Where Zina was not constituted, no question of Zina-bil-Jabr as envisaged in S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, arose--Prosecution having failed to prove its case beyond reasonable doubt against the accused, judgment and conviction by the Trial Court was set aside.
Malik M. Aziz Kausar for Appellant.
M. Sharif Janjua for the State.
Date of hearing: 28th June, 1999.
2000 M L D 411
[Federal Shariat Court]
Before Abdul Waheed Siddiqui, J
MUHAMMAD HUSSAIN ‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Criminal Appeal No.84‑1 of 1999, decided on 17th September 1999.
(a) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 14(1)‑‑‑Inviolability of dignity of man‑‑‑Privacy of home‑‑Inviolability‑‑‑Privacy of home was inviolable only when a crime or an offence of heinous and cognizable nature was not committed in the home‑‑Where there was a secret information with regard to commission of heinous crime in a house, the inviolability of that house was placed under suspension.
(b) Prohibition (Enforcement of Hadd) Order (4 of 1979)‑‑‑
‑‑‑‑Arts. 3 & 4‑‑‑Appreciation of evidence‑‑‑Recovery and sale of narcotics as alleged by prosecution was not proved‑‑‑Only 1.25 gins. of heroin and 70 gins. of opium was proved‑‑‑Case being only that of recovery of narcotics from the possession of accused‑‑‑Conviction under Art. 3, .Prohibition (Enforcement of Hadd) Order, 1979, by Trial Court was erroneous‑‑Conviction was converted from Art. 3 to Art. 4 Prohibition (Enforcement of Hadd) Order, 1979 by Federal Shariat Court and as the recovered quantity of narcotics did not attract the proviso to Art. 4, of the Order, sentence of imprisonment for seven years awarded to the accused was also reduced to imprisonment for 2 years in circumstances.
Muhammad Aslam Uns for Appellant Qari Abdul Rashid for the State.
Date of hearing: 23rd August, 1999.
2000 M L D 651
[Federal Shariat Court]
Before Ch. Ejaz Yousaf, J
MUHAMMAD ALI and 3 others‑‑‑Appellants
versus
THE STATE‑‑‑Respondent
Criminal Appeal No.47/K of 1998, decided on 15th July, 1999
(a) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss.392, 412 & 452‑‑‑Appreciation of evidence‑‑‑Sentence‑‑‑Reduction of sentence‑‑‑Trial Court after properly appreciating evidence on record had rightly convicted and sentenced accused under Ss.392 & 452, P.P.C.‑‑Conviction of accused under S.412, P.P.C., was not proper because legally same person could not be both robber as well as receiver of pillage‑‑‑Offence of robbery could not be said to have committed unless something was taken away by offender within purview of S.390, P.P.C., as otherwise it would be mere an attempt to commit the offence or something else‑‑‑Conviction under S.392, as well as 412, P.P.C., could not simultaneously stand‑‑‑Order of Trial Court convicting accused under both sections, was set aside‑‑‑Accused had not challenged their conviction, but had prayed for reduction in sentences' of imprisonment on ground that they were first offenders, young men and bread winners of their respective families which in their absence had been subjected to poverty‑‑‑Conviction of accused, was maintained and sentence was reduced in circumstances.
(b) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss. 379 & 411‑‑‑Convictions both under theft and retaining stolen property simultaneously‑‑‑Validity‑‑‑Person found guilty of offence of theft under S.379, P.P.C., could not be simultaneously convicted under S.411, P.P.C., for retaining stolen property because a thief could not commit offence of theft without stealing something‑‑‑If the booty was recovered from possession of accused he could not be charged and convicted separately for the offence that he had also retained' possession of stolen property.
(c) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.382‑B‑‑‑Penal Code (XLV of 1860), Ss.392 & 452‑‑‑Grant of benefit under S.382‑B, Cr.P.C.‑‑‑Principles‑‑‑In absence of special circumstances disentitling accused to have their sentences of imprisonment reduced by period spent in jail, during the trial, it was obligatory for the Trial Court to afford benefit of S.382‑B, Cr.P.C., to accused.
Muhammad Ashraf Kazi for Appellants.
Habibur Rashid for the State.
Date of hearing: 15th July, 1999.
2000 M L D 965
[Federal Shariat Court]
Before Dr. Fida Muhammad Khan and Abdul Waheed Siddiqui, JJ
ADVOCATE‑GENERAL, N.‑W.F.P., PESHAWAR and 2 others‑‑‑Petitioners
versus
ZAFAR IQBAL and others‑‑‑Respondents
Criminal Revision No.3‑P, Criminal Suo.Motu No.3/I and Criminal Appeal No.42/I of 1998, decided on 6th December, 1999.
(a) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art.13‑‑‑Criminal Procedure Code (V of 1898), S.403‑‑‑Protection against retrial and double punishment after conviction or acquittal ‑‑‑Suo motu taken by the Appellate Court or a criminal revision petition filed by any litigant for the enhancement of sentence in the same offence cannot be termed as prosecution for the same offence more than once‑‑=Proceedings at the appellate and revisional stage, in fact, are the continuation of the proceedings at the trial stage.
(b) Penal Code (XLV of 1860)‑‑‑
‑‑‑Ss. 337‑F(i) & 34/377‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18‑‑‑Constitution of Pakistan 1973.), Art. 13‑‑‑ Criminal Procedure Code (V of 1898), S.403‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.114‑‑‑Federal Shariat Court having not been satisfied with the meagre sentences awarded to accused by Trial Court had issued suo motu notices to accused to explain as to why their sentences might not be enhanced‑‑‑Prosecution had also filed a revision petition against the accused to the same effect‑‑‑Said suo motu notice and the revision petition did not amount to retrial of the accused, but rather the same were continuation of the original trial for the same offence‑‑‑Issue of Jarah, however, could not be proceeded further under the provisions of Art. 114 of the Qanun‑e‑Shahadat, 1984 and the proceedings were stopped only to the extent of Jarah ‑‑‑ Accused having not been charged by the Trial Court under S.342, P.P.C. for keeping the victims in wrongful confinement, evidence in this regard present on the file was not considered in view of the principle of audi alteram partem as nobody could be condemned without hearing‑‑‑Sentence of six months' R.I. awarded to accused by Trial Court under S.18 of the Offence of Zina (Enforcement of Hudood) Ordinance read with S.377, P.P.C. was not adequate for such a heinous crime and maximum sentence thereunder could extend up 12‑1/2 years‑‑‑Accused were consequently sentenced thereunder to undergo 3 years' R.I. with a fine of Rs.20,000 each‑‑‑Accused having already undergone their original sentence of six months' R.I. and having paid the Daman were directed to be taken into custody to undergo their enhanced sentence‑‑‑Benefit of S.382‑B, Cr.P.C. was, however; extended to accused.
Kh. Azhar Rasheed, Asstt. A.‑G., N.‑VY.F.P. for the State.
Muhammad Shoaib Abbasi for the Complainant. .
Malik Abdul Haq and Khan Afzal Khan for Respondents.
Date of hearing: 13th July, 1999.
2000 M L D 2003
[Federal Shariat Court]
Before Ch. Ejaz Yousuf, J
NAIK MUHAMMAD‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Criminal Appeal No. 154‑Q of 1999, decided on 14th June, 2000.
(a) Criminal Procedure code (V of 1898)‑‑
‑‑‑‑S. 510‑‑‑Chemical Examiner's Report‑‑‑Admissibility in evidence‑‑Report issued only by a duly notified Chemical Examiner or Assistant Chemical Examiner by the Government is admissible in evidence on mere presentation‑‑‑Where an Export is not such a duly notified Chemical Examiner, his report cannot be admitted in evidence without formal proof.
(b) Prohibition (Enforcement of Hadd) Order (4 of 1979)‑‑
‑‑‑‑Art. 3‑‑‑Criminal Procedure Code (V of 1898), S.510‑‑‑Report tendered in evidence had been issued by the Chemical Expert of the Forensic‑ Science Laboratory who ‑was not a duly notified Chemical Examiner or Assistant Chemical Examiner by the Government within the purview of S.510, Cr. P. C. at the time of its preparation and issuance and the same being inadmissible could not have been read in evidence‑‑‑Author of the said report having not been examined in the case, the contents thereof were not legally proved and the same could not form basis for conviction‑‑‑Conviction and sentence of accused were consequently set aside and the case was remanded to Trial Court for decision afresh in accordance with law.
Abdul Ghias Nausherwani for Appellant.
Ghulam Mustafa Mengal, Asstt. A.‑G., Balochistan for the State.
Date of hearing: 14th June, 2000.
2000 M L D 15
[Foreign Exchange Appellate Board, Lahore]
Before Tassaduq Hussain Jilani, J
EAST WEST TRADING COMPANY and another‑‑‑Appellants
versus
STATE BANK OF PAKISTAN and another Respondents
Appeal No. 12 of 1998, decided on October 998
(a) Foreign Exchange Regulation Act (VII of 1947)
‑‑‑‑Ss. 12(1)‑‑Appeal before Foreign Exchange Appellate Board‑‑‑Failure of exporter to repatriate the sale proceeds of exported goods within the specified period declared by it in Form E‑‑‑Exporter had not produced any sale proceed realization certificate issued by the concerned Bank evidencing repatriation of sale proceeds of the exported goods‑‑‑Effect‑‑‑Contention of exporter that it had been making bona fide efforts for repatriation of sale proceeds being a question of fact required some evidence before the Adjudicating Officer‑‑‑Foreign Exchange Appellate Board, in absence of any material on record indicating bona fides as claimed by exporter, could not raise presumption of bona fides in favour of the exporter against the record, in appeal‑‑‑Exporter, however, to prove its bona fides, could produce correspondence with the importer, complaint filed against the importer in the embassy of the importing country in Pakistan or a complaint with the Pakistan embassy in the importing country or some recovery suit filed against the importer in the country in question‑‑‑No such evidence, having been led despite opportunity given to the exporter, bona fides of the exporter in that behalf could not be proved in circumstances.
Messrs Elahi Cotton Mills Limited and others v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 6 others PLD 1997 SC 582 ref.
(b) Foreign Exchange Regulation Act (VII of 1947)‑‑‑
‑‑‑‑S. 12(1)‑‑‑Protection of Economic Reforms Act (XII of 1992), S.3‑‑‑Appeal before Foreign Exchange Appellate Board‑‑‑Failure of exporter to repatriate the sale proceeds of exported goods within the specified period declared by it Form E‑‑‑Provision of S.3, Protection of Economic Reforms Act, 1992 having not directly or indirectly repealed S.12(2), Foreign Exchange Regulation Act, 1947, protection granted in Protection of Economic Reforms Act, 1992 was not available to the exporter who had given a declaration of repatriating the sale proceeds in foreign exchange.
(c) Interpretation of statutes‑‑‑
‑‑‑‑ Expression "notwithstanding" has to be interpreted in its context‑‑‑Principles.
The expression "notwithstanding anything contained in any other law or judgment" does not mean that the previous law or judgment is set aside. The Legislature as, a matter of fact intends that the law and judgment as they were would remain so but a person concerned may incur a liability which the new Act may create or may do in addition to what is already provided in the existing law. In no case pre‑existing laws or judgments are annulled, repealed or set aside, these remain intact as these were. The Legislature in spite thereof or notwithstanding provides something else. If the latter is mandatory, it has to be followed and nothing else can be done, if, on the other hand, it is directory, it is discretionary. Therefore, the word "notwithstanding" has to be interpreted in its context.
Muhammad Tayyub Khan v. Punjab Labour Appellate Tribunal, Lahore 1979 PLC 377 ref.
(d) Foreign Exchange Regulation Act (VII of 1947)‑‑‑
‑‑‑‑S. 12(l)‑‑‑Protection of Economic Reforms Act (XII of 1992), Ss.4 & 5‑‑Liability of exporter to repatriate the sale proceeds of goods exported being regulated by Foreign Exchange Regulation Act, 1947 which was still in force and mandated a declaration on the part of exporter, exporter, who had to give the undertaking, could not seek protection of a statutory provision viz. Ss.4 & 5, Protection of Economic Reforms Act, 1992, which was meant for a different eventuality.
Ali Sibtain Fazli and Nasar Ahmad for Appellants.
Khawaja Saeeduz Zafar, Dy. A.‑G (on Court's Call).
Muhammad Akbar, Officer State Bank of Pakistan with Record.
Date of hearing: 1st October, 1998.
JUDGMENT
This judgment shall dispose of Appeals Nos. 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, and 23 of 1998 as the parties and the question involved are identical. Appellants exported goods subject‑matter of these appeals. As mandated in section 12(1) of the Foreign Exchange Regulation Act, 1947 they filed a declaration in Form‑E to the effect that they shall repatriate the sale proceeds of the exported goods in question within a period of four months. They failed to honour the undertaking given whereafter they were proceeded against under the Act and the Adjudicating Officer of the State Bank of Pakistan imposed penalty in each case and break up of which is as given below:‑‑
S. No Appeal No. Form‑E No. Date of impugned order I Penalty imposed
| | | | | | | --- | --- | --- | --- | --- | | S.No. | Appeal No. | Form-E No. | Date of Impugned Order | Penalty Imposed | | 1. | 12 of 1998 | 0004227 | 27‑12‑1997 | Rs.1,70,000 | | 2. | 13 of 1998 | 0004231 | 27‑12‑1997 | Rs.1,65,000 | | 3 | 14 of 1998 | 0004505 | 27‑12‑1997 | Rs.45,000 | | 4. | 15 of 1998 | 0004233 | 27‑12‑1997 | Rs.1,60,000 | | 5. | 16 of 1998 | 0004831 | 27‑12‑1997 | Rs.45,000 | | 6. | 17 of 1998 | 0003682 | 27‑12‑1997 | Rs.4,40,000 | | 7. | 18 of 1998 | 0005124 | 27‑12‑1997 | Rs.45,000 | | 8. | 19 of 1998 | 0004834 | 27‑12‑1997 | Rs.85,000 | | 9. | 20 of 1998 | 0004506 | 27‑12‑1997 | Rs.1,30,000 | | 10. | 21 of 1998 | 0077187 | 27‑12‑1997 | Rs.1,60,000 | | 11; | 22 of 1998 | 0004507 | 27‑12‑1997 | Rs.45,000 | | 12. | 23 of1998 | 0004232 | 27‑12‑1997 | Rs.1,70,000 |
In support of these appeals learned counsel for the appellant submitted that bona fide efforts were made ,to bring back the sale proceeds; that the protection of Economic Reforms Ordinance, ,1991 imposes no clog on the movement of foreign exchange and provision of this Act being latter in time would prevail and that while passing the impugned orders the Adjudicating Officer did not advert to certain documents which had an important bearing on the case. He lastly argued that onus is on the State Bank of Pakistan to show that the appellant made no bona fide efforts to repatriate the sale proceeds and that the appellant had to face the financial crises on account of which he could not repatriate the proceeds in question and that mitigating circumstance was a fair defence against any proceedings under the Foreign Exchange Regulation Act, 1947. After the conclusion of the arguments learned counsel for the appellant referred to certain photostat copies of sale proceed realization certificates issued by the certain banks evidencing repatriation of the sale proceeds to Pakistan. These documents have been checked with the assistance of the official of State Bank of Pakistan.
Khawaja Saeeduz Zafar, the learned Deputy Attorney‑General for Pakistan who was called to assist has referred to page two of the impugned order to show that the appellant made no efforts to have the sale proceeds repatriated to Pakistan, that under section 12(1) of the‑Foreign Exchange Regulation Act and exporter has to furnish a declaration that he shall bring back the sale proceeds within the time stipulated vide notification issued under section 20(3) dated 27‑12‑1972 and that the provisions of Economic Reforms Act are not in derogation to the Foreign Exchange Regulation Act 1947, therefore, the appellant cannot claim any ‑protection under the latter Act. He relied on Messrs Elahi Cotton Milts Limited and others v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 6 others (PLD 1997 Supreme Court 582 (693) to contend that in fiscal matters presumption of regularity is attached to official acts and this Court may not interfere as the issues involved are technical and should be left to the experts in the field in question.
Heard. Record perused.
Neither before the Adjudicating Officer nor before this Court the appellant has produced any sale proceed realization certificates issued by the concerned Bank evidencing repatriation of sale proceeds of the exported goods. In so far as the argument that the appellant had been making bona fide efforts for repatriation of sale proceeds is concerned this is a question of fact for which the appellant should have produced some evidence before the Adjudicating Officer. In absence of any material on record indicating bona fides as claimed this Court sitting in appeal cannot raise presumption to bona fides in favour of the appellant against the record. He could produce correspondence with the importer, complaint filed against the importer in the embassy of the importing country it Pakistan or a complaint with the Pakistan Embassy in the importing country of some recovery suit filed against the importer in the country in question.
Admittedly no such evidence was led despite opportunity given to the appellant.
"3. Act to override other laws.‑‑‑The provisions of this Act shall have effect ,notwithstanding anything contained in the Foreign Exchange Regulation Act, 1947(VII of 1947); the Customs Act, 1969. (IV of 1969), the Income Tax Ordinance, 1979(XXXI of 1979), or any other law for the time being in force.
The expression notwithstanding has come up for consideration in a number of casqs and it has been held that the expression notwithstanding anything contained in any other law judgment' does not mean that the previous law or judgment is set aside. The Legislature as a matter of fact intends that the law and judgment as they were would remain so but a person concerned may incur a liability which the new Act may create or may do in addition to what is already provided in the existing law. In Muhammad Tayyub Khan v. Punjab Labour Appellate Tribunal Lahore (1979 PLC 377) the Labour Appellate Tribunal headed by a Judge of this Court relying on precedent case law at page 380 held in no case pre‑existing laws or judgments are annulled, repealed or set aside, these remain intact as these were. The Legislature in spite thereof or notwithstanding provides something else. If the latter is mandatory, it has to be followed and nothing else can be done, if, on the other hand, it is directory, it is discretionary. Therefore, the word 'notwithstanding' has to be interpreted in its context. "
In the cases in hand the context is clear i.e. the Economic Reforms Act, 1992 explains protection to certain reforms brought about through Legislature. Sections 4 and 5 provided freedom and protection to foreign currency holder so 'i far as the liability of the exporter to repatriate the sale proceeds of an export is concerned the same remains intact as it is regulated by law which is still in force and it mandates a declaration on the part of the exporter. The exporter who has to give the undertaking cannot. seek protection of a statutory provision which is meant for a different eventuality. Section 20 of the Foreign Exchange Regulation Act empowers the State Bank of Pakistan to frame rules, give protection or issue orders which have the force of law. Under the afore‑referred provision the State Bank of Pakistan has issued. tiw Exchange Control Manual paragraph 21 of which provides as under:‑‑
"In pursuance of Notification No. S.R.O. 1016(1)/79, dated the 17th October, 1979 .issued by the Government of Pakistan all persons resident in Pakistan, and all other persons resident in Pakistan, and all other persons who are in Pakistan, are permitted to retain in Pakistan any foreign currency held by them provided such foreign currency does not represent foreign exchange released from Pakistan for any purpose and foreign exchange which has been acquired as sale proceeds of goods exported from Pakistan, earnings of profits of the overseas offices branches of Pakistan firms, companies and banks etc."
8: In the afore‑referred circumstances there is no merit in these appeals which are hereby dismissed.
M.B.A./E‑25/L
Appeals dismissed.
2000 M L D 8
[Karachi]
Before Rana Bhagwan Das, J
Messrs GOREY INTERNATIONAL through Proprietor Feroza Khatoon‑‑‑Plaintiff
versus
COLGATE‑PALMOLIVE (PAKISTAN) LTD. ‑‑‑Defendant
Suit No.853 and Civil Miscellaneous Application No. 4322 of 1997, decided on 2Is( October, 1997
(a) Patents and Designs Act (II of 1911)‑‑‑
‑‑‑‑S. 53‑‑‑Civil Procedure Code (V of 1908), 0. XXXIX, Rr. 1 & 2‑‑‑Suit for grant of permanent injunction‑‑‑Temporary injunction‑‑‑Plaintiffs were later registered proprietors of disputed design while defendants were the prior registered proprietors of said design‑‑‑Removal of registration in favour of defendants‑‑‑Application of plaintiff for grant of temporary injunction restraining defendants from advertising, publishing and selling goods during pendency of suit was refused in circumstances.
(b) Patents and Designs Act (II of 1911)‑‑‑
‑‑‑‑‑S. 53, ‑‑Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2‑‑‑Interim injunction‑‑‑Essential ingredients‑‑‑Irreparable loss, prima facie case and balance of convenience‑‑‑Plaintiff failed to establish any of the said three ingredients‑‑Application was dismissed.
Abdul Hameed Iqbal for Plaintiff.
Khawaja Mansoor and Salim Ghulam Husain for Defendant.
2000 M L D 66
[Karachi]
Before Rana Bhagwan Das, J
FAIYAZ HUSSAIN QURESHI and others‑‑‑Plaintiffs
versus
KARACHI BUILDING CONTROL AUTHORITY and others‑‑‑Respondents
Civil Miscellaneous Application No.6716 in Suit No. 1296 of 1997, decided on 5th June, 1998.
Easements Act (V of 1882)‑‑‑
‑‑‑‑S. 7‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2‑‑‑Suit for claiming right of easement with application for temporary injunction‑‑Contention of defendant was that some minor violations of approved plan by the Building Control Authority took place which hardly affected alleged easement rights of the plaintiff‑‑‑Effect‑‑‑On report of Nazir after site inspection Building Control Authority was directed not to regularise the violations and defendants would be under a legal duty to bring construction strictly in accordance with approved plan failing which building could be demolished by Building Control Authority in the discharge of their statutory functions.
Khawaja Shamsul Islam for Plaintiffs.
Shahid Jamil Ahmad Khan for Defendant No. 1. Nemo for Defendants Nos. 2, 3 and 6.
Suleman Kassam for Defendant Nos. 4 and 5.
2000 M L D 82
[Karachi]
Before Hamid Ali Mirza, J
GOHAR ALI SHAH---Appellant
versus
SHAHZADA ALAM---Respondent
First Rent Appeal No-.579 of 1993, decided on 13th February, 1997
Sindh Rented Premises Ordinance (XVII of 1979)---
---Ss. 21 & 16(2)---Default in payment of rent---Agreement of sale in respect of rented property between tenant and landlord---Tenant neither paid rent from the date of sale agreement nor paid balance of consideration amount for purchase of said property on the ground that during the relevant period there was no relationship of landlord and tenant between the parties---Tenant was ordered by Rent Controller to deposit rent---Validity---Mere agreement of sale would not absolve the tenant from payment of rent only because he was proposed purchaser of the premises when there had been no term in the agreement that tenant would not pay rent on his executing such agreement of sale---When such agreement of sale would not create any right, title or interest in or over the property in favour of tenant the proposed purchaser would remain tenant until and unless relationship of landlord and tenant was established agreement---Tenant had not deposited rent in terms of order of the Rent Controller and there had been deliberate and willful non-compliance of the tentative rent order, which invited penalty of striking off the defence of the tenant contemplated under S. 16(2) of the Sindh Rented Premises Ordinance, 1979---No exception could be taken to the order passed by Rent Controller---Tenant was directed to vacate the premises subject to refund by landlord of the amount of consideration paid towards the price of the premises in question to the tenant after adjustment of rent till delivery of possession.
Faiz Muhammad and another v. Mst. Quddusia Khatoon 1991 MLD 1051 and Gopal Das v. Riaz Ahmad Qureshi 1990 MLD 2215 rel.
Sardar Muhammad Anwar Khan v. Mian Asghar Ali -1988 CLC 402 and Mst. Akhtar Begum and others v. Mian Aziz 1985 SCMR 1617 distinguished.
S. Muhammad Naeem Hashmi v. Muhammad Rafi 1985 CLC 2133; Asad Ahmad Siddiqui v. Mst. Vilayati Begum through L.Rs. 1990 MLD 2247 and 1991 MLD 1053 ref.
Abdul Aziz Khan for Appellant.
Mubarak Hussain Siddiqui for Respondent.
Dates of hearing: 12th March and 1st September, 1997
2000 M L D 92
[Karachi]
Before M. Shaiq Usmani, J
DIGITAL COMMUNICATIONS (PTV.) LIMITED‑‑‑Plaintiff
versus
HABIB BANK LIMITED and others‑‑‑Defendants
Suit No.920 of 1997, decided on 20th December, 1998.
(a) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S. 12‑‑‑Suit for specific performance of agreement‑‑‑Defendant entered into agreement with plaintiff for installation of equipment within a certain period‑‑Parties acquiesced into extending period for performance of contract‑‑‑No period was fixed for performance of contract after process of tacit extension was initiated‑‑Defendant subsequently, unilaterally issued termination notice of agreement to the plaintiff‑‑‑Defendant entered into agreement with another patty and installed the equipment‑‑‑Validity‑‑‑Suit itself was not maintainable in view of the fact that defendant had already entered into another contract with some other party and the equipment had already been installed‑‑‑Suit was dismissed in circumstances.
(b) Civil Procedure Code (V of 1908)‑‑
‑‑‑‑O. XXXIX, Rr. 1 & 2‑‑‑Specific Relief Act (I of 1877), S. 12‑‑‑Specific performance of agreement‑‑‑Temporary injunction‑‑‑Damages‑‑‑Encashment of Insurance Bond‑‑‑Defendant entered into contract with plaintiff for installation of equipment and issued an Insurance Bond‑‑‑Defendant after unilaterally issuing termination order further entered into agreement with another person who installed the equipment‑‑‑Plaintiff filed suit for damages‑‑Defendant was restrained from encashing Insurance Bond till decision of the suit.
Rizwan Ahmed Siddiqui for Plaintiff.
Farrukh Zia Shaikh for Defendants.
2000 M L D 100
[Karachi], Before Mushtaq Ahmed Memon, J
EVACUEE TRUST PROPERTY and others‑‑‑Applicants
versus
MUHAMMAD RAMZAN and others‑‑‑Respondents
Civil Revisions Nos.80 of 1994 and 48 of 1991 (Sukkur), decided on 21st May, 1999.
(a) Pakistan (Administration of Evacuee Property) Act (XII of 1957)‑‑
‑‑‑‑S. 7(2)‑‑‑Trust property‑‑‑Vesting of evacuee property in Custodian= Trustees migrated out of Pakistan after independence‑‑‑Right or interest vested in Custodian qua such property‑‑‑Scope‑‑‑Right or interest which came to vest in the Custodian was only to the extent held by the evacuee trustees and; as such, the same was no more than management of affairs of trust.
(b) Evacuee Trust Properties (Management and Disposal) Act (X111 of 1975)‑‑‑
‑‑‑‑S. 14‑‑‑Civil Courts, bar of jurisdiction‑‑‑Non‑evacuee property treated as an evacuee trust property‑‑‑Effect‑‑‑Any notification with regard to non‑evacuee property was outside the scope of Evacuee Trust Properties (Management and Disposal) Act, 1975 and the same was unauthorised and without jurisdiction‑‑ Act without jurisdiction could always be checked by a Civil Court and then finding to that effect recorded in the lower appellate judgment did not call for, any interference.
Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356 ref.
Hadi Bux Soomro for Applicants.
A.K. Bhutto for Respondents.
Date of hearing: 17th May, 1999.
2000 M L D 112
[Karachi]
Before Rana Bhagwan Das and Shabbir Ahmed, JJ
KARACHI WATER AND SEWERAGE BOARD through Managing Director‑‑‑Appellant
versus
MAIRAJUDDIN‑‑‑Respondent
High Court Appeal No. 167 of 1998, decided on 14th May, 1999.
Fatal Accidents Act (XIII of 1855)‑‑‑
‑‑‑‑S. 1‑‑‑Intra‑Court appeal‑‑‑Contributory negligence, question of‑‑‑Child of tender age died due to falling into an open manhole‑‑‑Single Judge of the High Court decreed the suit of the parents of the deceased‑‑‑Appellant/Sewerage Board raised the plea that it was a case of contributory negligence on the part of the respondents/parents of the deceased‑‑‑Validity‑‑‑Lack of caution and care on the part of the respondents/parents would not absolve the appellant/Board of its legal and moral obligation to ensure the safe and secured maintenance of sewerage line including the maintenance of manholes‑‑Held, defence of contributory negligence could not be permitted to be set up by the civic agencies, in such cases.
Muhammad Moosa v. Karachi Water and Sewerage Board 1997 CLC 925; Javed lqbal v. Province of West Pakistan 1992 CLC 2369; Pakistan Railways v. Javed Iqbal 1995 SCMR 446; S. lqbal Hussain Jafery v. Karachi Electric Supply Company 1994 CLC 1903; Saira v. Zonal Municipal Corporation 1995 MLD 113; Federation of Pakistan v. Khatoon Begum 1996 SCMR 406; Pakistan Steel Mills Corporation Ltd. v. Nazir Hussain Shah 1990 CLC 515 and Punjab Road Transport Board v. Naziran Bibi PLD 1983 SC 340 ref.
Abdul Karim Khan for Appellant. Nasir Maqsood for Respondent.
Date of hearing: 11th May, 1999.
2000 M L D 122
[Karachi]
Before Wajihuddin Ahmed and Hamid Ali Mirza, JJ
ASGHAR ALI ‑‑‑Appellant
versus
Mrs. ZOHRABI and another‑‑‑Respondents
High Court Appeal No 37 of 1996, decided on 22nd April, 1997
(a) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O. XX, R. 13‑‑‑Administrative suit‑‑‑Competency‑‑‑Two properties stood in name of deceased parents of parties at time of their death though defendant had claimed that one of the two properties was purchased by him in the name of his deceased mother‑‑‑Plaintiffs being legal heirs of deceased would be entitled to get their shares at least from admitted property left by deceased at time of their death according to Muslim Law by filing administrative suit in respect of estate of deceased‑‑‑Such remedy was permissible under law and in case of choice between a partition suit and administration suit, administration suit was to be preferred‑‑‑Administration suit, in absence of prayer of partition in the main suit, was competent and maintainable as both parties to the suit were legal heirs of deceased to inherit properties left at time of their death.
Muhammad Bibi and others v. Abdul Ghani and others PLJ 1975 Kar. 1; Mst. Ayesha Bai and another v. Mgt. Shahida and 4 others PLD 1981 Kar. 177; Mahbub Alam v. Razia Begum and others PLD 1949 Lah. 263; Hussain v. Manzoor Ali and 5 others PLD 1977 Kar. 8; Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi and others PLD 1962 SC 291; Muhammad Younus Qureshi and 5 others v. Mst. Feroz Quraishi and 2 others 1982 CLC 976 and Ch. Muhammad Zafir v. Sh. Abdul Haq Sethi PLD 1956 (W.P.) Lah. 1060 ref.
(b) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O. XX, Rr. 13 & 2 (2)‑‑‑Administration suit‑‑‑Preliminary decree‑Withholding of‑‑‑Preliminary decree for administration of assets of deceased, could not be withheld only on assertion that one of the properties left by deceased was purchased by one of legal heirs (defendant) of deceased in name of his deceased mother from his own funds when said property stood in name of his deceased mother at time of her death.
Azhar Ali Siddiqui for Appellant Badrudduja Khan for Respondent
2000 M L D 133
[Karachi]
Before Hamid Ali Mirza, J
MUHAMMAD GULZAR‑‑‑Appellant
versus
JAMIA MASJID AL‑REHMANIA TRUST‑‑‑Respondent
First Rent Appeal No.541 of 1998, decided on 4th December, 1998.
Sindh Rented Premises Ordinance (XVIII of 1979)‑‑‑
‑‑‑‑S. 16(1)(a)‑‑‑Non‑compliance of tentative rent order‑‑‑Striking off defence‑‑‑ Tenant having failed to deposit arrears of rent and future monthly rent in accordance with tentative rent order by Rent Controller under S. 16(1), Sindh Rented Premises Ordinance, 1979, his defence was struck off on application by landlord under S.16(2) of the Ordinance‑‑‑Tenant who had been depositing rent in. miscellaneous case had contended that he being an illiterate person, was not in the knowledge of fact that he had to deposit rent in ejectment case‑‑‑Such ground of being illiterate and ignorant of order was not taken by tenant in his objections and counter‑affidavit to application of landlord filed under S.16(2), Sindh Rented Premises Ordinance, 1979‑‑‑Ground being afterthrought could not be considered to be valid ground for purpose of treating non‑compliance to be one of technical nature‑‑‑Tenant having failed to deposit arrears of rent and future monthly rent in accordance with tentative rent order without any justifiable explanation, his defence was rightly struck off as act and omission of tenant was wilful, deliberate and contumacious.
Noor Muhammad and another v. Mehdi PLD 1991 SC 711; Zafarullah Khan v. Abu Bakr 1995 CLC 25; Raujee v. Abdul Razzak Khatri 1994 CLC 1094; Muhammad Haji v. Amir Bano 1995 MLD 833; Hussain Trading Company, Karachi v. Jalal Brothers (Pvt.) Ltd. 1994 SCMR 159; Hussain Trading Company, Karachi v. Messrs Jalal Brothers (Pvt.) Ltd. 1994 SCMR 159 and Mehmood Bashir v. Mst. Mubina Begum 1998 SCMR 427 ref.
Muhammad Nawaz Abbasi for Appellant. Arshad Mobin Ahmed for Respondent.
2000 M L D 138
[Karachi]
Before Rana Bhagwan Das, J.
KADERMIND KHAN‑‑‑Plaintiff
versus
SAHIB KHAN and others‑‑‑Defendants
Suit No. 1195 of 1998, decided on 2nd November, 1998.
Specific Relief Act (I of 1877)----
‑‑‑‑S. 42‑‑‑Suit for declaration of ownership of a vehicle and temporary injunction on the basis of agreement to sell‑‑‑Vebicle was, subsequently‑, transferred by owner in favour of another party, who got its registration m his name in the record of Motor Registration Authority‑‑‑Defendant/purchaser of vehicle during the litigation deposited security with the Nazir of the Court and obtained a temporary custody of vehicle and, prima facie, hoe was also the registered owner of the vehicle‑‑‑Plaintiff sought an interim injunction restraining defendant from creating third party interest in respect of vehicle as well as sought the appointment of Receiver pending decision of the suit with powers to ply vehicle and deposit its monthly income with the Nazir of the Court‑ ‑‑Defendant also undertook that he shall not transfer vehicle in dispute to anyone else pending decision of the suit‑‑‑Validity‑‑‑High Court without disturbing possession of the vehicle directed the defendant that account of income and expenditure in respect of vehicle in his possession be maintained and statement of such accounts be filed with Nazir of the Court at the end of every month so that party ultimately found to be entitled to the vehicle in question was fully compensated.
Raja Sikandar Khan Yasir for Plaintiff..
Aman Khattak for Defendants Nos. 1, 2 and 3.
S. Raza Ali Abidi for Defendant No.6.
2000 M L D 141
[Karachi]
Before Sabihuddin Ahmed, J
AMIR HAYAT‑‑‑Applicant
versus
THE STATE‑‑‑Respondent
Criminal Bail Application No.506 of 1998, decided on 11th June, 1998.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 411/468/471 & 473‑‑‑Bail, grant of‑‑‑Accused was arrested and no challan was filed by police within a period of seventeen (17) days as required under S.173(1)(b), Criminal Procedure 'Code, 1898‑‑‑Detention of accused being unlawful he was entitled to bail‑‑‑High Court directed that the applicant be released from custody upon furnishing solvent surety unless he was required in any other case.
Iqbal Ahmad for Applicant.
Sharafat Ali Khan for the State.
2000 M L D 145
[Karachi]
Before Muhammad Roshan Essani and Anwar Zaheer Jamali, JJ
Miss RUKHSANA SOOMRO and others‑‑‑Petitioners
versus
BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LARAKANA, SINDH and others‑ ‑‑Respondents
Constitutional Petitions Nos.D‑168, D‑177 and D‑182 of 1998, heard on 1st February, 1999.
(a) Administration of justice‑‑‑
‑‑‑‑ Right of hearing, when claimed on the principles of natural justice, was not an absolute right, but it would be the facts and circumstances of each case which would enable a Court to draw a proper conclusion in that regard‑‑‑Clear distinction existed between two situations of hearing‑‑‑One where right of hearing was statutory and other where said right was claimed on principles of natural justice‑‑‑Statutory tight was almost absolute while right claimed on principles of natural justice was not so and exclusion of said right could be express or implied.
Syed Qasim Ali Shah v. The Director Food, Punjab Labour and others 1994 PLC (C.S) 762 = 1994 SCMR 1001; Board of Intermediate and Secondary Education, Lahore v, Saima Azad 1996 SCMR 676; Shahzad Munawar Butt v. Vice‑Chancellor, University of the Punjab and 2 others 1990 CLC 316; Rehana Mahmood and 3 others v. Azad Government and 5 others 1997 MLD 2874; Muhammad Rashid v. Azad Jammu and Kashmir Government PLD 1987 SC (AJ&K) 60; Zameer Ahmed and another v. Bashir Ahmed and others 1988 SCMR 516; Chairman, Board of Mining Examination and Chief Inspector of Mines and another v. Ramjee AIR 1977 SC 965; Uuion of India and another v. Tulsiram Patel AIR 1985 SC 1416; R.S. Dass v. Union of India and others AIR 1987 SC 593; Abdul Qadir and other v. The Settlement Commissioner and others PLD 1991 SC 1029 and Muhammad Rashid v. Azad Jammu and Kashmir Government and 20 others PLD 1987 SC (AJ&K) 60 ref.
(b) Educational institution‑‑‑
.... Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑High Court in matters relating to educational institutions involving examination process or disputes about assessment and marking of answer books would be reluctant and extra‑cautious in extending its Constitutional jurisdiction‑‑Constitutional jurisdiction of High Court was discretionary in nature and High Court would, decline to exercise said jurisdiction in cases where said exercise would work in aid of injustice or would protect some ill‑gotten gains of a party.
Board or Intermediate and Secondary Education, Lahore v. Saima Azad 1996 SCMR 676; Maharashtra State Board v. Paritosh AIR 1985 SC 1543; Zameer Ahmed and another v. Bashir Ahmed and others 1988 SCMR 516; Export Promotion Bereau.and others v. Qaiser Shafiullah 1994 SCMR 859 and Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351 ref.
Muhammad Anwar Channa, Munir Hussain Khichi and Bilawal Khan . Buriro for Petitioners.
Illahi Bux Kehar .for Respondent No.3. Rashid Ali G. Shaikh for the State.
Date of hearing: 1st February, 1999.
2000 M L D 160
[Karachi]
Before Hamid Ali Mirza, J
MUHAMMAD ILYAS‑‑‑Appellant
versus
HUSSAINI ‑‑‑ Respondent
First Rent Appeal No.533 of 1992, decided on 5th November, 1998.
(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑
‑‑‑‑Arts. 75 & 76‑‑‑Sindh Rented Premises Ordinance (XVII of 1979). S.15(2)(vii)‑‑‑Bona fide personal need of landlord‑‑‑Ground of heart ailment of landlord‑‑‑Secondary evidence‑‑‑Proof‑‑‑Landlord had claimed that, his requirement in respect of ground floor of premises was in good faith as he was suffering from heart ailment‑‑‑Landlord in proof of his claim had produced photocopy of certificate in respect of E. S. Test, but had not examined author of said certificate‑‑‑Certificate had no evidentiary value and was of no consequence to prove ailment of heart of landlord‑‑‑Mere fact that no objection was taken to said certificate at the time of proceedings before Rent Controller would not make the document admissible in evidence which otherwise could not be admitted under law, because no case as required under Arts.75 & 76 of Qanun‑e‑Shahadat was made out which could entitle landlord to produce photocopy as secondary piece of evidence because neither original was in possession of landlord nor it had been alleged to have been lost or that it could not be produced without unreasonable delay or any other ground permissible by law.
(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑
‑‑‑‑S.15(2)(vii)‑‑‑Bona fide personal need of landlord‑‑‑Ground of heart ailment‑‑‑Proof‑‑‑Landlord seeking ejectment of tenant on ground of his personal bona fide need had claimed that he was suffering from heart ailment and had to climb 57 stairs for going to his office and 42 stairs to reach first floor of premises where he was residing‑‑‑Landlord had wrongly said that he had to climb 42 steps to reach first floor as only there were 20 steps from ground floor to first floor‑‑‑When landlord could cover 57 steps 'to reach his office, twenty steps to reach first floor would not cause any kind of problem for him‑‑‑Photocopy of test report produced by landlord in proof of his heart ailment was not so convincing as to prove that landlord was so serious heart patient that he could not climb up to first floor of premises even after bypass operation patients could climb stairs and such climbing had not been considered dangerous to health of patients‑‑‑Landlord, in circumstances, had failed to prove his good faith for personal requirement, of the premises.
Khalilur Rehman for Appellant.
K.B. Bhutto for Respondent.
Date of hearing: 5th November, 1998.
2000 M L D 171
[Karachi]
Before Rana Bhagwan Das and Sabihuddin Ahmad, JJ
GHULAM HABIB KHAN---Appellant
versus
HABIB BANK LIMITED and others---Respondents
First Appeal No.6 of 1999, decided on 24th March, 1999.
Banking Companies (Recovery of Loans, Advances Credits and Finances) Act (XV of 1997)---
---Ss. 9, 10 & 21---Suit for recovery of loans---Leave. to defend suit--Defendant borrower failed to file application for leave to defend suit despite service of' summons through his brother who had received said summons-Defendant (appellant) had contended that he could not tile application to defend suit as he had proceeded to a far off place where he was engaged in connection with marriage arrangement of his sister and that his brother was unable to convey to him said summons as the place where defendant was busy, was beyond reach of his brother---Defendant had failed to adduce any evidence to show that he was really stuck up at such a far off place which was beyond reach of his brother---Defendant having failed to defend suit, suit of plaintiff-Bank was rightly decreed on basis of evidence on record.
Masood Shaliatyar for Appellant.
M. Saleetn Iqbal for Respondents.
2000 M L D 175
[Karachi]
Before Mrs. Majida Razvi, J
Mst. NASEEM‑‑‑Appellant
versus
NABI BUX‑‑‑Respondent
First Rent Appeal No.424 of 1998, decided on 11th January, 1999
(a) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑
‑‑‑‑Ss. 2(i)(j), 15(2)(ii) & 18‑‑‑Existence of relationship of landlord and tenant‑‑Proof‑‑‑Default in payment of rent‑‑‑Tenant had denied relationship of landlord and tenant between the parties contending that he was a lawful owner of premises by virtue of a sale‑deed entered between him and original owner of the premises and had paid certain amount to original owner towards sale consideration and balance was to be paid before the Registrar‑‑‑Original owner of premises having died his legal representatives had refused to perform part of contract of sale with the tenant and a case for specific performance of contract filed by tenant was pending adjudication‑‑‑Landlady by producing registered sale‑deed in respect of premises in dispute executed in her favour by original owner of premises and by producing other documentary as well as oral evidence had proved that she had stepped into the shoes of original owner and was entitled to recover rent of premises‑‑‑Even if alleged sale agreement in respect of premises executed in favour of tenant was prior in time, same was not finalized either by original owner or his legal representatives whereas sale‑deed in favour of landlady was duly registered‑‑‑Relationship of landlord and tenant, in circumstances, was proved to be existing and tenant having failed to pay or tender rent to landlady, even after filing ejectment application against him, was proved to be willful defaulter and liable to be ejected on that ground.
Major (Retd.) Muhammad Yousuf v. Mehrajuddin and others 1986 SCMR 751; Iqbal and 6 others v. Rabia Bibi and another PLD 1991 SC 242; Allah Yar and others v. Additional District Judge and others 1984 SCMR 711; Mian Muhammad Abdullah v.. District Judge, Sahiwal and others PLD 1985 Lah. 467; Kassim v. S. Rahim Shah 1990 SCMR 617; Israr Ahmed v. Abdul Aziz 1987 CLC 336 and Kevalram v. Messrs Ismail Brothers 1980 CLC 915 ref.
(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑
‑‑‑‑S. 15(2)(vi)(vii)‑‑‑Personal bona fide need of landlord‑‑‑Landlady had purchased plot in question alongwith shop constructed thereon and plot was a residential plot‑‑‑Landlady in her ejectment application as well as in her affidavit‑in‑evidence had claimed that premises would be utilized to construct house for own use‑‑‑Rent Controller rejected ejectment application on ground that since no sanction from a Competent Authority for reconstruction or building of house had been filed by landlady, she had failed to prove that she required premises for her personal bona fide use‑‑‑Said findings of Rent Controller were set aside having no force as it would be entirely an issue between Competent Authority and landlady to raise any construction thereon according to approved plan as per Rules and Regulations of Competent Authority.
K.B. Bhutto for Appellant
Lakhano Behrani for Respondent.
2000 .M L D 186
[Karachi]
Before Abdul Hameed Dogar, J
GHULAM NABI and another‑‑‑Appellants
versus
T. ISMAIL ‑‑‑Respondent
First Rent Appeal No.732 of 1991, decided on 17th September, 1998.
Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑
‑‑‑‑S.. 15(2)(ii)‑‑‑Default in payment of rent ‑‑‑Proof‑‑‑Ejectment application was filed by landlord on the ground that tenant had neither tendered nor remitted rent of the premises‑‑‑Tenant had. contended that he remitted rent by postal money order which was returned as landlord had refused to accept the same‑‑‑Coupon of money orders produced by tenant in evidence did not show remarks of refusal by landlord nor bore his signature and the coupons were devoid of any sort of endorsement by postman‑‑‑No one had been examined on oath by tenant from post office concerned to prove that money orders sent by tenant were refused by landlord‑‑‑Tenant having failed to prove that he had tendered or remitted rent to landlord was liable to be ejected on ground of default in payment of rent.
1997 MLD 820; 1997 MLD 1030; 1990 CLC 340; 1990 CLC 1545; 1997 CLC 646; Abdul Matin v. Muhammad Hassan 1997 CLC 216; PLD 1996 Kar. 67; 1987 CLC 1799; Habib Bank Limited v. Muhammad Raza 1997 MLD 833; Haji Qasim v. Syed Rahim Shah 1997 MLD 3240; Muhammad Azhar Hassan v. Mst. Razia Sultana 1990 CLC 1546; Salim Ahmed Khan v. Mst. Jamila 1990 CLC 349; Mir Khan v. Ahmed 1989 CLC 853; Salim v. Nisar Ahmed.1989 CLC 1048; Haji Wali Muhammad v. Yousuf Ali 1986 CLC 380; Shahid v. Fazal Ellahi PLD 1986 Kar. 67; Usman v. Gulzar 1987 CLC 1753 and State Life Insurance of Pakistan v. Mst. Sadiqa PLD 1993 Kar. 642 ref.
Imtiaz Ahmed Ansari for Appellants.
Muhammad Younus for Respondent.
Dates of hearing: 9th September and 17th September, 1998.
2000 M L D 197
[Karachi]
Before Muhammad Roshan Essani, J
SIKANDAR ALI ‑‑‑Applicant
versus
THE STATE‑‑‑Respondent
Criminal Revision No‑116 of 1998 and Miscellaneous Application No. 198 of 1999, decided on 24th February, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑Ss.516‑A & 439‑‑‑Penal Code (XLV of 1860), S.392/34 ‑‑‑ Custody 9f vehicle on Superdari‑‑‑Applicant admittedly was the purchaser of the vehicle and its seller had no objection to its delivery to the applicant‑‑‑Vehicle in question was not claimed by anybody else ‑‑‑F.I.R. having been lodged by the driver of the applicant with regard to the snatching of the vehicle, the same was lastly in possession of the applicant through his driver‑‑‑Court should be more vigilant and on guard to save the property from devastation where it was likely to be misused, damaged or its utility was to be diminished‑‑‑Technicalities or delay on the part of Court might cause hardship or irreparable loss to the parties to the proceedings‑‑‑Vehicle was given to the applicant on Superdari in circumstances.
Ghulam Qadir Jatoi for Applicant.
Arshad Lodhi, A.A.‑G. for the State.
2000 M L D 206
[Karachi]
Before Syed Nazim Hussain Siddiqui, CJ. and Ghulam Rabbani, J
Ms. HIGHAM SANDRA‑‑‑Petitioner
versus
THE INVESTIGATION OFFICER, INVESTIGATION AND PROSECUTION BRANCH, CUSTOMS and others‑‑‑Respondents
Constitutional Petition No. D‑1184 of 1999, decided on 10th August, 1999.
Control of Narcotic Substances Act (XXV of 1997)‑‑
‑‑‑‑S.9(c)‑‑‑Customs Act (IV of 1969), S.156(8)‑‑‑Criminal Procedure Code (V of 1898), S.403‑General Clauses Act (X of 1897), S.26‑‑‑Constitution of Pakistan (1973), Arts. 13 & 199‑‑‑Constitutional Petition‑‑‑Second trial for the same offence‑‑‑Accused had already been convicted by the Customs Judge for recovery of the heroin from him under the Control of Narcotic. Substances Act, 1997‑‑‑Second case had been registered against the accused on the basis of same facts, investigation, evidence and recovery which were subject‑matter of the first trial‑‑‑Points involved in the subsequent trial were the same which had already been considered and decided in the first trial... Conviction and sentence of accused by the Special Judge in the second trial were consequently set aside.
Rana M. Shamim for Petitioner.
Mubarak Hussain Siddiqui, Dy. A.‑G. and M. Iqbal Raad, A.‑G., Sindh for Respondent.
Date of hearing: 10th August, 1999.
2000 M L D 218
[Karachi]
Before Hamid Ali Mirza, J
DOMINGUEZ RODRIGUEZ NARCISO‑‑‑Appellant
versus
THE STATE through Collector of Customs (Preventive Services, Customs House, Karachi‑‑‑Respondent
Special Criminal Appeal No. 18 and Special Jail Appeal No. 15 of 1996, decided on 23rd February, 1999.
Customs Act (IV of 1969)‑‑‑
‑‑‑‑S.156(1)(8)‑‑‑Criminal Procedure Code (V of 1898) S. 243‑‑‑Sentence‑‑Accused had pleaded guilty to the charge which had been regarded as a mitigating factor in favour of accused in matter of sentence‑‑‑Genuine remorse or penitence having been shown by the accused, he deserved leniency‑‑‑Sentence of fine awarded to accused was substantially reduced in circumstances.
Rana M. Shamim for Appellant.
S.Tariq Ali, Standing Counsel for the State.
Date of hearing: 23rd February, 1999.
2000 M L D 235
[Karachi]
Before Hamid Ali Mirza, J
JOHN CHIBUZO‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Special Criminal Jail Appeal No. 19 of 1997, decided on 6th October, 1998
Customs Act (IV of 1969)‑‑‑
‑‑‑‑S.156(1)(b)‑‑‑Appreciation of evidence‑‑‑Recovery of 123 Kgs. of heroin powder from the baggage belonging to the accused‑‑‑Neither the testimony of prosecution witnesses with regard to such recovery could be shaken nor any animus of such witnesses against the accused could be shown‑‑‑No material contradictions and inconsistencies were pointed out in the prosecution evidence‑‑‑Version of the accused that no contraband was secured from his possession, could not be believed and there could not be possibility of foisting of such huge quantity of heroin powder upon the accused‑‑-Recovery of heroin powder from the baggage of the accused was supported by all prosecution witnesses‑‑‑Report of Chemical Examiner proved the same to be a heroin of commercial grade‑‑‑Where prosecution evidence was confidence inspiring, no exception could be taken to the findings of the Trial Court on the point of recovery of heroin powder which the accused attempted to smuggle out of Pakistan.
Taj Bahadur v. The State 1997 MLD 1078; Badho v. The State 1973 PCr.LJ 395; Muhammad Sharif and others v. The State 1982 PCr.LJ 1067; Abdul. Sattar v. The State 1984 PCr.LJ 2185; Iqbal and another v. The State 1985 PCr.LJ 286 and Noorul Hassan v. The State 1989 PCr.LJ 631 distinguished.
Rana M. Shamim for Appellant.
Nemo for the State.
Date of hearing: 6th October, 1998.
2000 MLD 247
[Karachi]
Before S.A. Sarwana, J
Messrs Haji KHUDA BUX AMIR UMAR‑‑‑Plaintiff
versus
KARACHI BUILDING CONTROL AUTHORITY and another‑‑‑Defendants
Suit No. 1072 and Civil Miscellaneous Application No.6014 of 1996, decided on 25th August, 1998.
(a) Administration of justice‑‑‑
‑‑‑‑ Natural justice, principles of‑‑‑No person should be condemned unheard and no order adverse to the interest of any person should be passed without giving him an opportunity of explaining his position‑‑‑Such principle was to be read in every statute and applied in its enforcement‑‑‑Legislature being aware of the general. attitude and tendency of executive authority to pass orders, without giving a hearing to parties whose interests were adversely affected, normally include a provision in all statutes requiring executive authority to provide a hearing to all persons before passing any order against their interest.
(b) Sindh Buildings Control Ordinance (V of 1979)‑‑‑
‑‑‑‑S. 14‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Suit for declaration‑‑Removal of building‑‑‑Notice‑‑‑Principles of natural justice ‑‑‑Violation‑‑Plaintiff had sought declaration that notice issued by defendant (Authority) for removal of building occupied by plaintiff as being 'ruinous or dangerous' was illegal and based on mala fide and also was against principles of natural justice‑‑‑Authority issued notice to plaintiff to remove building in dispute forthwith without giving plaintiff opportunity of being heard ‑‑‑Validity‑‑Authority under provisions of S.14 of Sindh Buildings Control Ordinance, 1979, was required to give an opportunity of hearing to plaintiff who was likely to be affected by the action of Authority‑‑‑Authority had failed to issue any notice to plaintiff to show cause as to why building occupied by plaintiff should not be demolished. before directing plaintiff to remove/demolish building‑‑‑Such omission was , a gross violation of law and principles of natural justice‑‑‑High Court, decreeing suit declared notice issued to plaintiff by Authority to be illegal, without lawful authority, mala fide and of no legal effect.
Mr. Akbar for Plaintiff.
Muhammad Iqbal Memon for Defendants.
2000 M L D 261
[Karachi]
Before Hamid Ali Mirza, J
PAK SANITARY ENGINEERING CO.‑‑‑Appellant
versus
Mst. SUGHRABAI through Legal Heirs‑‑‑Respondents
First Rent Appeal No. 24 of 1995, decided on 25th January, 1999.
Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑
‑‑‑‑S. 15(2)(vii)‑‑‑Bona fide personal need of landlord‑‑‑Landlady had asserted that shop in dispute was required bona fide for the use of her jobless son‑‑‑Such contention of landlady had been reiterated in affidavit‑in‑evidence filed by son of landlady for whom the shop was required and his testimony and veracity remained unshaken in cross‑examination‑‑‑Nothing had been brought on record to show that landlady and her son were in possession of any other suitable premises so as to enable them to carry out their business or that son of landlady was running his business in shop adjacent to shop in dispute as alleged by tenant‑‑‑Mere fact that alleged enhanced rate of rent was demanded by landlady from tenant, would not negate entitlement of landlady to seek ejectment of shop from tenant‑‑‑Need of landlady, in circumstances, was in good faith as nothing had been brought on record to show that it was not an honest requirement.
Muhammad Moosa Khawaja and another v. Haji Muhammad Umar 1995 MLD 1880; Mrs. Shahnoor Fazal v. Ghulam Akbar Mangi 1987 SCMR 2051; Mst. Saira Bano v. Anisur Rehman 1989 SCMR 1366; Haji Gul Muhammad v. Mst Asmat Ara 1988 SCMR 1412(2); Sultan Muhammad Sabir v. Shaukat Mehmood and others 1992 MLD 1962; Mst. Mumtaz Nasim v. Additional District Judge and others 1992 CLC 306; Abdul Waheed v. Muhmmad Zia‑ul‑Haq 1989 CLC 405; Peerzada Rafiq Ahmad v. Chaudhry Abdul Rehman 1980 SCMR 772; M/s. Allied Bank Limited v. M/s. Rahmat Sons Limited 1993 MLD 844; Ahmad Siddiqui v. ShamsunNisa Begum 1988 CLC 1047; Anwar Javaid v. Mst Umeennisa and others 1994 CLC 927; Jameel Ahmed v. Muhammad Ishaque 1989 MLD 3571; Muhammad Ali v. Muhammad Yaqub 1986 CLC. 2550; National Development Finance Corporation, Shahrah‑e‑Quaid‑e‑Azam, Lahore PLD 1997 SC 564 and Khawaja Imran Ahmad v. Noor Ahmad and another 1992 SCMR 1152 ref.
Kamaluddin for Appellant. Mubarak Hussain Siddiqui for Respondents.
Date of hearing: 26th October, 1998.
2000 MLD 351
[Karachi]
Before Rasheed Ahmed Razvi, J
Mst. SAMINA‑‑‑Petitioner
versus
ASHFAQUE HUSSAIN and another‑‑‑Respondents
Criminal Miscellaneous Application No. 174 of 1999, decided on 30th April, 1999.
(a) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.491‑‑‑Guardians and Wards Act (VIII of 1890), S.25‑‑‑Habeas corpus petition‑‑‑Custody of minor children‑‑‑Removal of minor from one parent to another‑‑‑Welfare of minor‑‑‑Determination‑‑‑Question of welfare of minor cannot be decided without resorting to the process of recording of evidence‑‑‑High Court is required to form a tentative view in respect of removal of custody of minor from one parent to another‑‑‑Where the minor is of tender age, custody of such minor is always preferred to be given to the mother of the minor till the final decision of the Guardian Court.
(b) Criminal Procedure Code (V of 1898)--‑
‑‑‑‑S.491‑‑‑Habeas corpus petition‑‑‑Custody of minor children‑‑Petitioner/mother alleged that her minor children were removed from her custody by respondent/father in unlawful and mala fide manner‑‑Respondent/father contended several grounds in support of his custody but such grounds could only be considered at trial before the Guardian Court‑‑Respondent/father was unable to rebut the allegation of unlawful removal of the custody of the minor children‑‑‑Custody of children was ordered to be handed over to the petitioner/mother in circumstances.
Ahmed Sami and 2 others v. Saadia Ahmed and another 1996 SCMR 268; Muhammad Khalil‑ur‑Rehman v. Mst. Shabana Rahman and another PLD 1995 SC 633; Mst. Tauqir Fatima v. Iqbal Mehdi Shah and another 1990 PCr.LJ 342; Abdul Rehman Khakwani and another v. Abdul Majid Khakwani and 2 others 1997 SCMR 1480; Suit. Pari Bai v. Amrat Lal and others 1997 PCr.LJ 105; Sara Palmer v. Muhammad Aslam 1992 MLD 520; Mst. Maria Khan v. Muhammad Zubair Khan 1993 PCr.LJ 1097; Muhammad Javed Umrao v. Uzma Wahid 1988 SCMR 1891; Saadia Ahmed v. The State and 3 others 1996 MLD 30; Hina Jilani v. Sohail Butt PLD 1995 Lah. 151; Mst. Naglim Akhtar v. Shaikh Gulzar Ahmed and 4 others 1995 PCr.LJ 474 and Muhammad Hiroku v. Muhammad Latif 1994 MLD 1682 ref.
Sirajul Haq Hashmi for Petitioner.
S. Jaffar Hassan Abidi for Respondent No. l.
Mukhtar Ahmed Khanzada for Respondent No.2.
2000 M L D 364
[Karachi]
Before Dr. Ghous Muhammad and Ata‑ur‑Rehman, JJ
AIJAZ AHMED and another‑‑‑Petitioners
versus
BASHIR AHMED BHUTTO, INVESTIGATING OFFICER (PREVENTIVE COLLECTORATE) CUSTOMS HOUSE, KARACHI and 3 others‑‑‑Respondents
Constitutional Petition No.869 of 1999, decided on 15th July, 1999.
Control of Narcotic Substances Act (XXV of 1997)‑‑
‑‑‑‑S.9(b)‑‑‑Customs Act (IV of 1969), S.156(8)‑‑‑Constitution of Pakistan (1973), Arts. 13 & 199‑‑‑Constitutional petition‑‑‑Double punishment‑‑Validity‑‑‑Accused from whom heroin had been recovered had been convicted and sentenced under the Customs Act, 1969, which he had undergone‑‑‑Accused on the same facts had again been summoned and on his having pleaded guilty had been convicted and sentenced under S.9 of the Control of Narcotic Substances Act, 1997, by the. Special Court‑‑‑Offence committed under the Customs Act, 1969, having covered the offence under the Control of Narcotic Substances Act, 1997, could not be tried for the second time under the latter Act and the accused could not be punished twice for the same act as ordained by Art. 13 of the Constitution‑‑‑Conviction and sentence of accused under the Control of Narcotic Substances Act, 1997, were consequently quashed.
C.Ps. Nos. D‑317, 318 and 319 of 1999, decided on 2‑6‑1999 ref.
Amir Naqvi for Petitioners.
Naimur Rehman, Dy.A‑G. for Respondents.
2000 M L D 370
[Karachi]
Before Abdul Hameed Dogar and Ghulam Nabi Soomro, JJ
MEER MUHAMMAD alias MEERAN and another‑‑‑Appellants
versus
THE STATE‑‑‑Respondent
Criminal Appeal No.65 and Criminal Jail Appeals Nos.93 to 96 of 1996, decided on 10th March, 1999.
(a) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss.365‑A, 392 & 148‑‑‑Appreciation of evidence‑‑‑Non‑examination of the Investigating Officer by the prosecution without any plausible reasons, had seriously prejudiced the defence‑‑‑Important incriminating evidence regarding picking up of accused in the identification parade in the presence of Magistrate and settlement of ransom amount by them with the prosecution witness had not been put to accused in their statements recorded under S.342, Cr.P.C., which could not be considered for conviction of accused‑‑Convictions. and sentences of accused were set aside in circumstances and the case was remanded to Trial Court for fresh decision after recording the statement of Investigating Officer as well as the statements of accused under S.342, Cr.P.C.
(b) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.342‑‑‑Penal Code (XLV of 1860), Ss.365‑A, 392 & 148‑‑Incriminating evidence not put to accused‑‑‑Effect‑‑‑Incriminating pieces of evidence having not been put to accused in their examination under S.342, Cr.P.C., cannot be considered against them while deciding the case.
Ali Bux Leghari and Miss Masooda Siraj for Appellants.
Habib Ahmed, A.A.‑G. for the State.
Date of hearing: 10th March, 1999.
2000 M L D 425
[Karachi]
Before Abdul Hameed Dogar and Ghulam Nabi Soomro, JJ
YAQOOB and 2 others---Appellants
versus
THE STATE---Respondent
Criminal Appeals Nos. 126, 135 of 1995, Criminal Jail Appeals Nos.26 and 69 of 1995, heard on 4th March, 1999.
(a) Islamic Jurisprudence---
----Evidence---Test of "Tazkiya-e-Shahood"---Much stress has been laid on the quality of evidence, competency to testify veracity, integrity 'and respectability of the witnesses in Islamic system of justice---Such test of witness is termed as "Tazkiya-e-Shahood".
(b) Words and phrases--
----"Purgation"---Meaning.
Oxford Dictionary and Black's Law Dictionary ref.
(c) Words and phrases--
----"Tazkiya"---Arabic word, meaning. Misbah-ul-Lugh'at ref.
(d) Penal Code (XLV of 1860)---
----S.302/149---Explosive Substances Act (VI of 1908), S.4---Nonmentioning of relevant subsection of S.302, P.P.C.---Duty of Trial Court--Conviction awarded without reference to specific subsection of 5.302, P.P.C.---Effect---Where relevant subsection of S.302, P.P.C. was not mentioned, the very purpose of law was frustrated---Trial Courts while deciding the case under S.302, P.P.C. should keep all its provisions in mind strictly---Non-mentioning of the relevant provision of S.302, P.P.C. would result in miscarriage of justice---Incumbent upon the Trial Court to specify relevant subsection of S.302, P.P.C. whereunder conviction had been awarded, with detailed reason---Such mandatory requirement of law having not been complied with by the Trial Court conviction and sentence passed by Trial Court was set aside and case was remanded for retrial.
PLD 1989 SC 633; Federation of Pakistan and another v. N.-W.F.P. Government and others PLD 1990 SC 1172; Riaz Ahmed v. The State 1998 SCMR 1729 and Muddassir alias Jimmy v. The State 1996 SCMR 3 ref.
Sardar Muhammad Ishaque and Syed Nasir Hussain Jaffri for Appellants.
Habib Ahmed, Asstt. A.-G. for Respondents.
Date of hearing: 4th March, 1999.
2000 M L D 435
[Karachi]
Before Sarmad Jalal Osmany, J
Haji ALI MUHAMAMD and others‑‑‑Appellants
versus
MIR AHMED KHAN and others‑‑‑Respondents
First Civil Appeal No. 14 of 1994, heard on 13th September, 1999.
(a) Administration of justice‑‑‑
‑‑‑‑‑‑ Proper party" and "necessary party"‑‑‑Distinction‑‑‑Proper party is one whose presence is necessary to effectively and completely adjudicate upon .and settle all points involved in a suit, whereas a necessary party is one in whose absence no effective decree can be passed.
(b) Limitation Act (IX of 1908)‑‑‑
‑‑‑‑Art.197‑‑‑Civil Procedure Code (V of 1908), O.XXII, Rr.3 & 4‑‑‑Death of appellant ‑‑‑Impleading of legal representatives of such appellant‑‑‑ Limitation‑‑‑Where the appellant had died before filing of appeal, the provision of Art. 177 of Limitation Act, 1908, would not be applicable.
Nawab Karim v. Chief Settlement Commissioner 1970 SCMR 72; Elahi Bakhsh v. Budha and another 1968 SCMR 328 and Muzaffar and 2 others v. Moulvi Aziz Rehman and 2 others 1983 CLC 16 ref.
(c) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.XXII, Rr. 3(2) & 4(3)‑‑‑Appeal against dead person ‑‑‑Non‑impleading of legal heirs of a dead plaintiff or defendant‑‑‑Effect‑‑‑Appeal filed against a dead person under the provisions of O.XXII, Rr.3(2) & 4(3), C.P.C. does not automatically render the same liable to be dismissed ‑‑‑Non‑impleading of legal heirs of such dead person does not abate the suit and the Court is fully empowered to pass judgment and decree despite the same.
(d) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.XXII, R.4‑‑‑Appeal‑‑‑Failure to bring on record legal heirs of a dead party in pending proceedings‑‑‑Effect‑‑‑Such a failure was not fatal to the proceedings‑‑‑Where legal representatives of a dead party were not impleaded in appeal, the same would not be fatal to the said proceedings.
Province of Punjab and 3 others v. Gul Muhammad Khan 1998 MLD 2110; Sultan Ahmed v. Muhammad Bux NLR 1999 AC 748 and Muhammad Yaqoob v. Ali Shan and 8 others 1994 MLD 1843 ref.
(e) Administration of justice‑‑‑
‑‑‑‑ Proper place of procedure in any system of administration for justice is to help and not to thwart the grant to the people of their right‑‑‑All technicalities have to be avoided unless it be essential to comply with them on ground of public policy‑‑‑Any system which gives effect to the form and not the substance defeats substantive rights and is defective to that extent.
Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382 ref.
(f) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.XLI, R.4‑‑‑Reversal of whole decree‑‑‑Scope‑‑‑Under the provisions of O.XLI, R.4, C.P.C. any one of several plaintiffs or defendants may obtain reversal of the whole decree where it proceeds on grounds common to all.
Babu Muhammad Aslam v. Mst. Rehana Parveen PLD 1989 Pesh.185; Muhammad Mehrban v. Sadruddin and another 1995 CLC 1541; Ghulam Qadir v. Abdul Sattar PLD 1984 SC 12; Shahna Khan v. Aulia Khan PLD 1984 SC 157; Murid Hussain and others v. Muhammad Sharif 1996 CLC 161; Allah Ditta v. Barkat Ali 1992 SCMR 1974 and Dewan Ali Khan v. Jehandad Khan 1995 CLC 138 ref.
Sikandar Ali Alvi for Appellants. Abdul Ghafoor Bhurgry for Respondent No. 1.
Date of hearing: 13th September, 1999.
2000 M L D 442
[Karachi]
Before S.A. Rabbani, J
NAEEM AHMED ---Appellant
versus
Mrs. MARIAM ---Respondent
First Rent Appeals Nos.328 and 329 of 1999, decided on 13th October, 1999.
(a) Sindh Rented Premises Ordinance (XVII of 1979)
----S.15(2)(iv)---Impairing of utility and material value of premises by tenant---Alterations and additions themselves, unless were in violation of the agreement, were not a ground for eviction of the tenant---Tenant could be evicted if his act impaired the material value and utility of the premises.
1988 SCMR 689 ref.
(b) Sindh Rented Premises Ordinance (XVH of 1979)---
----S.15(2)(vii)---Bona fide personal need of landlord---Proof---Shop was sought to be ejected by landlady on ground that she required the shop for her husband who intended to establish a general store therein---Neither landlady nor her husband appeared to place, before Rent Controller, their case for their requirement, but only attorney of landlady had stated before Court that landlady required the shop for use of her husband who had no other place to start his own business and said statement of attorney was rebutted by tenant by producing evidence---Such statement of third person about personal need of landlady, could not be accepted as conclusive to eject the tenant on ground of personal bona fide need of landlady.
(c) Sindh Rented Premises Ordinance (XVII of 1979)---
----S.15(2)(ii), (iv) & (vii)---Filing of separate ejectment cases for same property and against same tenant on different grounds---Landlady had filed two cases for same property and against same tenant, one on ground of impairing utility and value of premises and the second on grounds of default and personal bona fide need---Validity---If more than one grounds of ejectment of tenant were available to landlord at the time of filing ejectment application, all of them could be made basis of one case---Filing of separate cases, within a short period, for ejectment of a tenant, from same property on basis of different grounds, would give rise to presumption that ground mentioned in case filed subsequently was not, available at the time of filing of previous case, which could be detrimental to the case of landlord.
Haji Ghulam Rasool v. Mst. Halima Banker 1998 SC11aR 547 ref.
Jamil Ahmed Virk for Appellant. S. Ashique Raza for Respondent.
Date of hearing: 8th October, 1999.
2000 M L D 447
[Karachi]
Before Hamid Ali Mirza, J
GULZAR HUSSAIN ‑‑‑Petitioner
versus
Mst. MARIYAM NAZ‑‑‑Respondent
Constitutional Petition No.442 of 1999, decided on 5th October, 1999.
Muslim Family Law Ordinance (VIII of 1961)‑‑‑
‑‑‑‑S.8‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Dissolution of marriage on ground of Khula'‑‑Remarriage by parties‑‑‑Conditions‑‑‑Family Court decreed suit filed by wife for. dissolution of marriage on ground of Khula' and dissolved marriage between the parties in lieu of dower amount‑‑Husband had challenged the decree in Constitutional petition‑‑‑During pendency of Constitutional petition, application was filed praying therein to dispose of Constitutional petition in the light of settlement arrived at between the parties‑‑‑Terms and conditions of said settlement were; that husband had undertaken to maintain wife and to provide her necessities and luxuries according to his status; that wife was ready to join husband as his wife, and that decree for dissolution of marriage by way of Khula' be recalled and parties be allowed to remarry‑‑‑Dissolution of marriage by way of Khula' was pronounced by Family Court subject to return of dower amount by wife, but said amount of dower neither was returned by wife nor same was accepted by husband‑‑‑Pronouncement of Khula' by Family Court, in circumstances, would amount to single divorce and until third divorce would take place, husband would be at liberty to remarry his wife again and parties could join as husband and wife on solmanization of Nikah without intervention of third person.
Majmua‑e‑Qawaneen‑e‑Islam, Vo1.II, Qanoon‑e‑Talak by Tanzil‑urRehman, pp.369, 597 ref.
S. Shamim Amad Riazi for Petitioner.
Respondent in person.
Date of hearing: 5th October, 1999
2000 M L D 450
[Karachi]
Before S. Ahmed Sarwana, J
ALI NOOR (PVT.) LTD. CO. ‑‑‑Plaintiff
versus
M.v. ANNA II‑‑‑Defendant
Admiralty Suit No. 30 of 1999, decided on 27th August, 1999.
Admiralty Jurisdiction of High Courts Ordinance (XLII of 1980)‑‑
‑‑‑‑S.3(2)‑‑‑Admiralty suit for damages‑‑‑Determination of amount of damages‑‑‑Plaintiff‑company was appointed as "stevedores" to discharge fertilizer cargo from defendant vessel‑-‑During discharge of cargo from vessel, hydraulic grab" loaded with cargo and attached to hook of crane of defendant‑vessel, became free and started to descend fast due to alleged defect in the crane, hit ship as a result of which grab got discharged from the ship's hook, fell on jetty and was totally damaged‑‑-Plaintiff‑company filed suit for recovery, of Rs.77,50,000 being claim for damage done by ship---Court appointed a qualified and experienced surveyor to carry out survey of vessel and damaged grab who submitted report with regard to damage‑‑According to estimate of surveyor, total cost of repair of grab including replacement of its parts was Rs.4,50,000‑‑‑Said estimate was not challenged or disproved by plaintiff by making any suggestion to the contrary to said surveyor or confronting him with any document containing different information‑‑‑Plaintiff's claim appeared to be exorbitantly high‑‑‑Court provisionally accepted survey report and estimate given by experienced, qualified and independent surveyor accordingly.
Agha Faquir Muhammad for Plaintiff.
Shaiq Usmani for Defendant.
2000 M L D 453
[Karachi]
Before Mushtaq Ahmed Memon, J
ITOCHU CORPORATION---Plaintiff
versus
FAYSAL BANK LIMITED and another---Defendants
Suit No. 1081 of 1999, decided on 17th September, 1999.
Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---
-----S.9(2)---Civil Procedure Code (V of 1908), Ss. 10 & 151---Suit for recovery of loan -etc.---Application for stay of proceedings under S.151, C.P.C.---Maintainability---Provision of S.10, C.P.C. providing stay of suit had specifically been made not applicable to the suit filed under Banking Companies (Recovery of Loans, Advances, Credit and Finances) Act, 1997 under S.9(2) of said Act---Contention of applicant was that provision of S.10, Civil Procedure Code having not been extended to proceedings to cases under Banking jurisdiction, S.10, C.P.C. was to be assumed as non-existent but inherent powers under S.151, C.P.C. could be exercised to stay the proceedings in suit in order to avoid conflicting judgments ---Validity--Exercise of inherent power in aid of justice, no doubt was an acknowledged proposition of law, but negative clause contained in S.9(2), Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, which had excluded applicability of S.10, C.P.C. had to be given complete effect especially when object- of said section was to provide for continuance of proceedings instituted under said special law and to thwart any attempt to defeat the purpose---Negative provision contained in S.9(2), Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, had forbidden exercise of inherent power to stay legal proceedings and said powers could be exercised only where specific provisions did not exist.
K.R. Balaji Rao and others v. M.G. Natesa Chetty AIR 1948 Mad. 138; S. Komarappa Goundan v. Ramaswamy Goundan AIR 1948 Mad. 150; Messrs Shafiq Hanif (Pvt.) Ltd., Karachi v. Bank of Credit and Commerce International (Overseas) Limited, Karachi PLD 1993 Kar. 107 and Attock Oil Company v-Ghaith Rashid Pharaon and others 1996 CLC 1657 rel.
Naimur Rehman for Plaintiff.
S. Sharifuddin Pirzada for Defendant No. 1.
2000 M L D 456
[Karachi]
Before S. Ahmed Sarwana, J
UNITED BANK LIMITED‑‑‑Plaintiff
versus
MUHAMMAD SHARFUDDIN‑‑‑Defendant
Suit No.35 of 1998, decided on 28th April, 1999
(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑
‑‑‑‑S. 9‑‑‑Suit for recovery of Bank loan‑‑‑Submission of title documents of property to the Bank were denied by 'the defendant‑‑‑Plea of being "Pardahnashin lady" raised by defendant was not taken in the written statement filed by the defendant‑‑‑Effect‑‑‑Where no such plea was taken in the written statement, defendant could not be allowed to take the same in her evidence‑‑‑Bank was in possession of title deeds which Was sufficient to prove that these documents were given to secure payment of loan/finance facility provided by the Bank to the husband of the defendant and that was sufficient evidence to show that the defendant had created an equitable mortgage in favour of the Bank‑‑‑Suit of the Bank was decreed in circumstances.
1994 PLC 2150 ref.
AIR 1923 PC 87; AIR 1965 SC 430 and AIR 1977 Cal. 343 distinguished.
(b) Word and phrases‑‑‑‑
Pardahnashin lady ‑‑‑Definition.
Mst. Mahmooda Begum and others v. Major Malik Muhammad Ishaq and others 1984 SCMR 890 and National Bank of Pakistan v. Mst. Hajra Bai and 2 others PLD 1985 Kar. 431 fol.
S.Mamnoon Hasan for Plaintiff. Muhammad Saleem Samo for Defendant No.2.
Dates of hearings: 5th and 12th April, 1999.
2000 M L D 539
[Karachi]
Before Rasheed Ahmed Razvi and Muhammad Ashraf Leghari, JJ
GULAB and 2 others‑‑‑Petitioners
versus
THE STATE‑‑‑Respondent
Criminal Appeal No.D‑1 of 1994, heard on 5th October, 1999.
(a) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss.365‑A & 392/34‑‑‑Appreciation of evidence‑‑‑Allegation of abduction for ransom‑‑‑‑Conflicting versions of two abductees‑‑‑Evidence of one of the abductees did not support the version of the prosecution whereas the other abductee/the complainant exaggerated the facts to the extent that the story of the prosecution seemed to be imaginary‑‑‑Nothing was available on record to indicate as to how the chit regarding demand of ransom was recovered and who produced the same in the Trial Court‑‑‑Neither the abductee was recovered from the accused persons nor the ransom money was proved to have been demanded or paid‑‑‑Prosecution had failed to bring home the guilt to the accused beyond any reasonable doubt‑‑‑Judgment of the Trial Court was not sustainable and sentence awarded to accused persons was set aside accordingly.
Manzoor Ali v. The State 1995 PCrLJ 1394 and Tariq Pervez v. The State 1995 SCMR 1345 rel.
(b) Criminal trial‑‑‑
‑‑‑‑ Evidence of police official‑‑‑Private Mashirs did not depose in favour of prosecution‑‑‑Effect‑‑‑It would be unsafe to place reliance on the evidence of Investigating Officer with regard to the recovery of case property under such circumstances.
Mishal Khan v. The State 1983 PCr.LJ 1628 ref.
Safdar Ail Bhutto for Appellant.
Ali Anwar Tunio for the State.
Date of hearing: 5th October, 1999.
2000 M L D 574
[Karachi]
Before Rashid Ahmad Razvi and Muhammad Ashraf Leghari, JJ
AMIR JAN BULADI‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Criminal Bail Application No.D‑217 of 1999, heard on 20th September, 1999.
(a) Words and phrases‑‑‑
‑‑‑‑"Terrorist"‑‑‑Connotation‑‑‑Terrorist does not mean that one should cause so many a incidence of violence or he should be previously convicted‑‑Sufficient for a person to be a terrorist, if such person is causing constant fear or is mischievous and troublesome to the people at large.
(b) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.497(1), third & fourth provisos‑‑‑Penal Code (XLV of 1860), S.302/324/353/147/148/149‑‑‑Bail, grant of‑‑‑Statutory delay in trial‑‑Desperate and dangerous criminal‑‑‑Accused armed with rifle Kalashinkov rifle, indiscriminately fired at police staff, alongwith other co‑accused‑‑‑One Police constable died in the incident‑‑‑Accused who belonged to a party of dacoits was a desperate and dangerous criminal, anal thus, was not entitled to grant of bail under the provision of S.497(1), third proviso‑‑‑Bail was not granted in circumstances.
Wazir and another v. The State PLD 1986 Kar. 646; Rizwan Hussain v. The State 1999 SCMR 131; Jalal v. Allahyar and another 1993 SCMR 525; Muhammad Hanif v. The State PLD 1986 Kar. 437 and Moundar and others v. The State PLD 1990 SC 934 ref.
Habibullah Gori for Applicant. Altaf Hussain Surahio for the State.
2000 M L D 586
[Karachi]
Before Muhammad Ashraf Leghari, J
RAMZAN‑‑‑Applicant
versus
SUB‑DIVISIONAL MAGISTRATE and another‑‑‑Respondents
Criminal Miscellaneous Application No.44 of 1999, decided on 7th May, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.561‑A‑‑‑Sindh Crimes Control Act (IV of 1975), S.14‑‑‑Quashing of proceedings‑‑‑On the report of Station House Officer of police station, proceedings under S.14, Sindh Crimes Control Act, 1975, were initiated against the accused‑‑‑Report was based on vague and general allegations in which details of acts, time or place of occurrence were not mentioned‑‑Effect‑‑‑Sindh Crimes Control Act, 1975, was a special statute, which made inroads upon liberty of individuals, and it was to be subjected to a strict observance of the rules and conditions mentioned therein, before taking cognizance and exercising jurisdiction by the Tribunals‑‑‑Only one case was pending against the accused and two police officials were shown to be the witnesses against him‑‑‑Proceedings initiated and cognizance taken by the Sub‑Divisional Magistrate and Tribunal were without jurisdiction and lawful authority in circumstances‑‑‑Proceedings were quashed.
Nisar v. the State 1996 PCr.LJ 102; 1998 PCr.LJ 951 and Aijaz Dahar v. The State 1986 PCr.LJ 30 ref.
Muhammad Saleem Jessar for Applicant.
Ali Azhar Tunio, Asstt. A.‑G. for Respondents.
Date of hearing: 7th May, 1999.
2000 M L D 595
[Karachi]
Before Mushtaq Ahmed Memon and Muhammad Ashraf Leghari, J
DADAN alias ALLAHDAD‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Criminal Jail Appeal No.D‑66 and Confirmation Case No.6 of 1994, heard on 11th May, 1999.
Penal Code (XLV of 1860)‑‑‑‑
‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Motive as alleged by the prosecution was not the cause of murder of the deceased‑‑‑No crime empty having been recovered from the spot, recovery of gun from the accused was of no consequence‑‑‑Eye‑witnesses had not only materially contradicted each other, but had made statements in conflict with medical evidence‑‑‑Occurrence appeared to be an unwitnessed one and possibility of false implication of accused in the case due to previous enmity could not be ruled out‑‑‑Absence of signature or thumb‑impression of accused on his statement under S.342, Cr.P.C. was fatal to prosecution‑‑‑Entire investigation in the case had remained unproved due to non‑examination of the Investigating Officer for which no reason wits available on record ...Accused was acquitted in circumstances.
Rasool Bux v. State 1980 SCMR 225; State v. Muhammad Yasin 1995 SCMR 635; Ch. Muhammad Siddique v. Muhammad Zubair and 4 others 1995 SCMR 1112; Nazir Muhammad v. State 1996 PCr.IJ 1410; Wreshmeen v. State 1990 SCMR 154; Muhammad Ashfaq v. State 1995 SCMR 1321; Muhammad Iqbal v. State 1984 SCMR 930; Mst. Sultan Zari v. State 1986 PCr.LJ 1723; Muhammad Inayat v. The State PCr.LJ 469;. Muhammad Iqbal v. State 1992 PCr.LJ 2092; Muhammad Yakoob v. The State 1981 PCr.LJ 693; Muhammad Sharif and another v. State 1972 PCr.LJ 1259; A.K.M. Raza and others v. The State PLD 1958 Dacca 111; Ghulam Ali v. State 1992 PCr.LJ 2033; Karim Bux v. State 1991 PCrLJ 1337; Muhammad Ashfaque alias Chief v. State 1998 PCr.LJ 1486 and Muhammad Aslam alias Auchhu and others v. State 1973 PCr.LJ 263 ref.
Nisar Ahmed Bhatti for Appellant.
Abdul Fatah Mughal for the State.
Date of hearing: 11th May, 1999.
2000 M L D 641
[Karachi]
Before Sabihuddin Ahmed, J
Messrs MANZOOR TEXTILE MILLS LTD. Through Director---Plaintiff
versus
NICHIMEN CORPORATION and 2 others---Defendants
Suit No. 368 and Civil Miscellaneous Application No. 5336 of 1996, decided on 12th October, 1999.
(a) Arbitration Act (X of 1940)---
----S.34 -Arbitration (Protocol and Convention) Act (VI of 1937), S.3-- Arbitration clause---Stay of legal proceedings---Provisions of S.3, Arbitration (Protocol and Convention) Act, 1937 and S.34 of Arbitration Act, 1940---Distinction---Only difference between the two is the former contains word "shall" and the stay of legal proceedings is an obligation and a mandate upon the Court, whereas in the latter, such stay is always discretionary with the Court by reason of the use of word "may" therein--Such distinction is subject to certain conditions stated in S.34 of Arbitration Act, 1940.
(b) Arbitration (Protocol and Convention) Act (VI of 1937)---
----S.3---Legal proceedings, stay of---Pre-conditions stated. The pre-conditions of section 3 of the Arbitration (Protocol and Convention) Act, 1937 are as under:
(i) An agreement between citizens of different States;
(ii) such agreement contains a clause agreeing to submit future disputes to arbitration, and
(iii) a submission has been made in pursuance of such agreement of,an actual and existing dispute after it has arisen.
(c) Arbitration Act (K of 1940)---
----S. 34---Arbitration (Protocol and Convention) Act (VI of 1937), S.3--Legal proceedings, stay of---Presence of arbitration clause in, the agreement---Suit for recovery of damages was filed and one of the defendants, who was a foreign company filed application for stay of proceedings as there was an arbitration clause in the original contract--validity---Plaintiff wished to defeat the arbitration clause with the aid of Court---Court should not lightly release the parties from their bargain that followed from the sanctity which the Court attracted to contracts---Where a party entered into any agreement after having -full knowledge of its consequences, such party could not be allowed to defeat the arbitration clause---Proceedings in the civil suit were stayed so that the matter might be referred to arbitration as per arbitration clause---Application was allowed accordingly.
Middle East Trading Co. v. NN Mills AIR 1990 Bom. 292 and Hidayatullah v. Shamsuddin and others 1993 MLD 993 distinguished.
W. Wood & Sons v. Bengal Corporation AIR 1956 Cal. 238; Bajrang Electric Steel Co. v. Commissioner for the Port of Caluctta AIR 1957 Cal. 240; Anderson Wright Ltd. v. Moran & Co. AIR 1955 SC 53; Messrs Haji Muhammad Ibrahim and others v. Karachi Municipal Corporation and others PLD 196(? Kar. 916 and Echardt & Co. v. Muhammad Hanif PLD 1993 SC 42 ref.
Khalilur Rehman for Plaintiff.
Hamza I.Ali for Defendant No. 1.
Muhammad Zaki Ahmed for Defendants Nos. 2 and 3.
2000 M L D 655
[Karachi]
Before Amanullah Abbasi and S.A. Rabbani, JJ
ABDUL SAMAD and 2 others‑‑‑Applicants
versus
THE STATE‑‑‑Respondent
Criminal Miscellaneous Application No. 186 of 1999, decided on 14th September, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑Ss.155(2) & 561‑A‑‑‑Penal Code (XLV of 1860), Ss.427/34, 504 & 506(1)‑‑‑Quashing of proceedings‑‑‑.Delay of two days in lodging F.I.R. was not explained‑‑‑Prosecution witnesses, due to their relationship with complainant, were interested witnesses and weaknesses and contradictions were found in prosecution evidence‑‑‑Probability of conviction of accused did not exist in circumstances‑‑‑Investigation against accused was conducted without permission of the Magistrate which was violation of S.155(2), Cr.P.C.‑‑‑Offences charged against accused were non‑cognizable offences‑Said proceedings being based on illegal foundation were void ab initio and abuse of legal process‑‑‑Proceedings were ordered to be quashed in circumstances.
Syed Manzoor Hussain Shah v. Syed Agha Hussain Naqvi and another 1983 SCMR 775; Asif Ali Zardari v. The State and another 1992 PCr.IJ 58; Muhammad Khalid Mukhtar v. The State PLD 1997 SC 275; Khawaja Fazal Karim v. The State and another PLD 1976 SC 461; PLD 1967 SC 317 and Mehboob Alam and others v. The State 1996 PCr.LJ 366 ref.
Abdul Sattar Shaikh for Applicants.
Agha Khuda Bux, A.A. ‑G. for the State.
Faiz Muhammad Qureshi for the Complainant.
Date of hearing: 2nd September, 1999.
2000 M L D 666
[Karachi]
Before Sayed Saeed Ashhad, J
WASEEM LANGRA‑‑‑Applicant
versus
THE STATE‑‑‑Respondent
Criminal Bail Application No. 123 of 1999, decided on 13th December, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497/498‑‑‑Penal Code (XLV of 1860,), S.302/34‑‑‑Bail, grant of‑‑None had been able to identify the persons who as per F. I. R. had opened fire at deceased‑‑‑Statements of complainant and other prosecution witnesses recorded under S.161, Cr.P.C. apart from being delayed, was a deviation from their original version‑‑‑Value of said statements was open to doubt‑‑Accused who was not named in F.I.R. was not put to identification test by complainant and other prosecution witnesses after his arrest ‑‑‑Abscondance of accused could not be proved beyond doubt by prosecution as neither the name of process=server nor his parents or his designation was mentioned in deposition Form on the basis of which order under S.87/88, Cr.P.C. declaring accused as a proclaimed offender was made ‑‑‑Co‑accused having been enlarged on bail, accused, whose case was at par with the. case of co-accused was also entitled to grant of bail on ground of rule of consistency.
Muhammad Sadiq and another v. The State PLD 1960 SC (Pak.) 223 and Farman Ali v. The State 1997 SCMR 971 ref.
Sardar Muhammad Ishaque for Applicant. Dilawar Hussain for the State.
2000 M L D 671
[Karachi]
Before Mushir Alam, J
MUHAMMAD SHAREEF and another‑‑‑Appellants
versus
THE STATE‑‑‑Respondent
Criminal Appeal No.76 of 1998, heard on 15th November, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.265‑F(7)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Constitution of Pakistan (1973), Art.4‑‑‑Right to produce evidence, denial of‑‑‑Trial Court on application of accused for issuance of summons to defence witnesses, issued process, but on two successive dates defence witnesses having been called absent‑‑‑Court recalled order calling defence witnesses mechanically without application of mind and due regard to provisions of law‑‑‑Thing required to be done in particular manner was to be done and executed in that manner‑‑‑Valuable right to defend, recognised under law, could be denied only when Court would come to conclusion that said right was being abused for vexacious reasons or to delay or defeat ends of justice‑‑‑Such conclusion was to be recorded by Court in writing..‑Court was obliged to record reasons in writing for declining to issue process for production of defence witnesses or for production of any documents or other things as could be considered necessary for, defence‑‑‑Process to compel attendance of defence witnesses could be issued even on oral motion of accused and it was not necessary to make a formal written application in that respect‑‑‑Once Court had issued process, objection in respect thereof could not be entertained to sacrifice justice at the altar of technicalities.
Sahib Khan Kanasro for Appellant.
Ghulam Sarwar Korai for the State.
Mumtaz Ali Siddiqui for the Complainant.
Date of hearing: 15th November, 1999.
2000 M L D 695
[Karachi]
Before Amanullah Abbasi and S.A. Rabbani, JJ
NOOR ALI and 3 others‑‑‑Petitioners
versus
Mst. SAYEDA PARVEEN IQBAL and 3 others‑‑‑Respondents
Constitutional Petition No.D-191 of 1998 and Miscellaneous Application No. 155 of 1999, decided on 24th August, 1999.
(a) Constitution of Pakistan (1973)‑‑
‑‑‑‑Art.199(5)‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Petition against order of Civil Court‑‑‑Plea of adequate remedy‑‑‑Scope‑‑‑Where law‑makers intend to end litigation at a certain stage and deliberately omitted to provide an appeal or revision, extraordinary remedy under Art.199 of the Constitution could not be availed of on the plea that no adequate remedy had been provided by law at that stage‑‑‑Extraordinary remedy was available where the order of the Civil Court in such a situation was wholly void or coram non judice.
(b) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.1, R.10---‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Deleting official defendants from the list of defendants in the plaint‑‑‑Plaintiff filed application under 0.1, R.10, C.P.C. for deletion of certain defendants‑‑‑Trial Court dismissed such application while the Lower Appellate Court allowed same in a revision filed by the plaintiffs‑‑‑Validity and effect‑‑‑Cause of action against such defendants extinguished and there could have been no justification to continue litigation against such defendants‑‑‑Lowers Appellate Court had the revisional jurisdiction and the same was properly exercised‑‑‑Petitioner, having failed to point out any illegality in the order of Lower Appellate Court, Constitutional petition, was dismissed accordingly.
Muhammad Zahoor and another v. Lal Muhammad and 2 others 1984 SCMR 1284; 1988 SCMR 322; PLD 1981 SC 246 and PLD 1981 SC 522 ref.
Abdul Hussain S. Motiwala for Petitioner.
Hassan Mahmood Baig for Respondents.
2000 M L D 702
[Karachi]
Before Mushtaq Ahmed Memon, J
SHABBIR AHMED and another‑‑‑Plaintiffs
versus
NAZIR AHMED and others‑‑‑Defendants
Judicial Miscellaneous No. 17 of 1997 in Suit No. 53 of 1965 and Civil Miscellaneous Applications Nos.8464 of 1998 and 2669 of 1999, decided on 22nd October, 1999.
(a) Limitation Act (IX of 1908)‑‑
‑‑‑‑S.5‑‑‑Civil Procedure Code (V of 1908), O.XXII, R.3‑‑‑Proceedings on application under O.XXII, R.3, C.P.C.‑‑‑Such application was filed beyond the period of limitation ‑‑‑Effect‑‑‑Condonation of delay‑‑‑Provisions of S.5 of Limitation Act, 1908, were applicable to specified matters alone, and were not applicable to application under O.XXII, R.3, C. P.C. ‑‑‑Application for condonation of delay was dismissed in circumstances.
(b) Limitation Act (IX of 1908)‑‑
‑‑‑‑Art. 176‑‑‑Civil Procedure Code (V of 1908), S.12(2)‑‑‑Terms "plaintiff" or "appellant"‑‑‑Connotation‑‑‑Inclusion of an applicant under S.12(2), C.P.C. under such term‑‑‑Validity‑‑‑Terms "plaintiff" or "appellant" used in Art. 176 of Limitation Act, 1908, were wide enough to include an applicant under S.12(2), C.P.C.‑‑‑Intention of Legislature in using the term "plaintiff" or "appellant" was to include a party at whose instance the proceedings had commenced‑‑Applicant under S.12(2), C.P.C., therefore, was included under the terms of "plaintiff" or "appellant".
(c) Limitation Act (IX of 1908)‑‑‑
‑‑‑‑Art. 176‑‑‑Civil Procedure Code (V of 1908), O.XXII, R.3‑‑‑Prohibition of Art. 176 of Limitation Act, 1908‑‑‑Impleading of legal heirs of a deceased party ‑‑‑Suo motu powers of Court‑‑‑Interest of minors and those who were placed in a position of disadvantage‑‑‑Scope‑‑‑Such prohibition applied to an application filed by the legal representatives‑‑‑No embargo on the power of Court to implead the legal representatives suo motu to the proceedings‑‑‑Where the interest of two minors was involved, Court was obliged to take care of the interest of the minors and those who were placed in a position of disadvantage‑‑‑Application filed under O.XXII, R.3, C.P.C. was dismissed but the legal heirs of the deceased were impleaded in circumstances.
Bibi Khudeja v. Pir Sarwaruddin Shah 1992 MLD 490 and Khawaja Auto Cars Limited v. Haji Sharif Khan 1996 CLC 1337 distinguished.
Saifuddin v. Zainuddin and another 1995 CLC 1348 ref.
(d) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.XXXII, Rr. 1 & 3‑‑‑Guardian ad litem, appointment of‑‑‑Failure to file such application‑‑‑Effect‑‑‑Where no separate application had been filed for appointment of such guardian for two minors, mother of the minors was appointed guardian ad litem on the oral motion of the counsel for the applicants.
K.M. Nadeem for Plaintiffs.
S. Jamil Ahmed for Defendant No. 1. S. Muzzaffer Imam for the KDA.
2000 M L D 779
[Karachi]
Before Muhammad Roshan Essani and S. A. Rabbani, JJ
Mrs. IQBAL BANO‑‑‑Petitioner
versus
GOVERNMENT OF SINDH through Member, Board of Revenue, Land Utilization Department, Karachi and 4 others‑‑‑Respondents
Constitutional Petition No.3495‑D of 1993, decided on 17th September, 1999.
(a) Constitution of Pakistan (1973)‑‑‑
‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Factual disputes and questions of disputed title could not be resolved in the proceedings in a petition under Art. 199 of the Constitution‑‑‑Where rights of the petitioner in the plot were. disputed by the respondent (Board), such disputes could only be adjudicated upon and resolved by Civil Court in civil suits on the basis of evidence‑‑‑Remedy for petitioner in such situation was before the Civil Court‑‑‑Petition being not maintainable was dismissed in circumstances.
(b) Words and phrases‑‑‑
‑‑‑‑"Trespass"‑‑‑Meaning and scope‑‑‑Trespass does not need any "jurisdiction" and there can be no case where somebody has a "jurisdiction" to "trespass" property of the others.
Nadeem Akhtar for Petitioner.
Ainuddin Khan, A.A.‑G for Respondents Nos. 1 and 2.
Naeem‑ur‑Rehman for Respondents Nos. 4 and 5.
Date of hearing: 14th September, 1999.
2000 M L D 791
[Karachi]
Before Rana Bhagwan Das, J
ABDUL KAREEM and 2 others‑‑‑Applicants
versus
THE STATE‑‑‑Respondent
Criminal Bail Application No.550 of 1999, decided on 17th December, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑‑Bail was sought by accused on statutory ground of delay in view of third proviso to S.497, Cr.P.C.‑‑‑Accused themselves were partly responsible for inordinate delay in commencement and conclusion of trial since trial could not take place as on various dates of hearing counsel was not engaged by accused deliberately in order to avail benefit of statutory delay and thereafter on some dates of hearing counsel engaged by accused did not turn up though prosecution witnesses were in attendance who could not be examined‑‑Accused having themselves contributed towards delay in conclusion of trial, concession of bail could not be extended to them on ground of statutory delay.
Abdul Rashid v. The State 1998 SCMR 897 and Shaukat Ali v. Ghulam Abbas 1998 SCMR 228 ref.
Habibullah Shaikh for Applicants. Zawar Hussain Jafri, Addl. A.‑G.
2000 M L D 802
[Karachi]
Before Wahid Bux Brohi, J
Messrs HABIB BANK LTD.---Appellant
versus
Dr. ZUBAIDA, H. PEER MUHAMMAD ---Respondent
First Rent Appeal No.257 of 1991, decided on 13th September, 1999.
(a) Sindh Rented Premises Ordinance (XVII of 1979)---
----S.15(2)(v)---Word "nuisance" appearing in S.15(2)(v), Sindh Rented Premises Ordinance, 1979---Meaning and scope---Acts amounting to unwarranted interference with the rights of neighbours or causing injury, damage, hurt, inconvenience annoyance or discomfort to another in the enjoyment of his right with respect to his person or property, or in another manner committing acts of gross misbehaviour with the persons who are in use and occupation of the premises in the immediate vicinity, besides creating an atmosphere of environmental pollution---Such instance may be treated as nuisance.
(b) Sindh Rented Premises Ordinance (XVII of 1979)---
----S. 15(2)(v)---Causing of nuisance by tenant---Landlord filed ejectment application against the tenant, on the allegation of causing nuisance to the other inmates of the premises---None of the other tenants of the building came forward to support the version of the appellant/landlord---Only solitary statement of the engineer of landlord was available on record in that respect---Such witness of the landlord visited the premises on one occasion and the same could at the best indicate that on the occasion the sweepers of the landlord (who were primarily responsible for cleaning the sewerage lines and preventing gutters from choking) failed to perform their duties properly---Rent Controller relying on such evidence refused the ejectment of the tenant---Validity---Landlord having failed to discharge the burden of proving- all necessary facts which would establish the point of nuisance, Rent Controller was justified in drawing the conclusion that the landlord failed to prove the allegation of nuisance against the tenant.
Crescent Carriers v. Gulzar Ahmad & Brothers 1986 MLD 813; Faridul Hassan v. Muhammad Ayub 1986 MLD 371; Syed Hussain Ali v. Ahmed Bux 1992 MLD 2000; Syed Ashraf Ali v. Ali Muhammad Khan 1986 CLC 735; Mst. Hashmi Begum v. Mst. Alya Zohra Begum 1985 MLD 1514; Mst. Firdous Begum v. Dr. Shamsunnissa -1981 CLC 332; Dr. Shamsunnissa v. Mst. Firdous Begum 1983 SCMR 548 and Mst. Nasreen Rashid v. Asghari Begum Qureshi and others PLD 1982 SC 453 ref.
(c) Words and phrases---
----"Nuisance"---Meaning.
Abdul Muqtadir Khan for Appellant.
Khawaja Naveed Ahmed for Respondent.
Date of hearing: 29th April, 1999.
2000 M L D 826
[Karachi]
Before S.A. Rabbani, J
Mrs. NARGIS LATIF‑‑‑Appellant
versus
Mrs. FEROZ AFAQ AHMED KHAN‑‑‑Respondent
First Rent Appeal No.664 of 1998, decided on 26th October, 1999.
Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑
‑‑‑‑Ss.15(2)(ii), 19 & 20‑‑‑Default in payment of rent‑‑‑Ex parte ejectment order‑‑‑Service of summons through publication in newspaper‑‑‑Notices issued by Rent Controller to tenant from time to time could not be served and finally notice was published in newspaper, but despite said publication, tenant failed to appear before Rent. Controller, on which ex parte ejectment order was passed against him on basis of ex pane evidence of landlord‑‑Tenant disputed publication of notice in newspaper contending that since service of notice through bailiff was not good, publication‑of notice in newspaper was of no consequence‑‑‑Contention of tenant was repelled because notices were published in newspapers only when they were not served in ordinary manner through bailiff‑‑‑If service of notice through publication in a widely circulated newspaper., was allowed to be ignored, no effective mode of service upon parties interested to avoid such notice would be left‑‑‑Tenant having adequately been served with notice through publication, Rent Controller was justified in proceeding with matter, ex parte.
Mst. Mariam Bai Adam Ali v. Mst. Salma Khatoon 1982 CLC 1314 and Secretary Education, Punjab and others v. Rent Controller and others 1981 CLC 1369 ref.
Liaqat Merchant for Appellant.
Zia Kayani for Respondent.
Date of hearing: 22nd October, 1999.
2000 M L D 842
[Karachi]
Before Dr. Ghous Muhammad and Abdul Ghani Shaikh, JJ
Syed ABDUL QAYYUM‑‑‑Applicant
versus
THE STATE‑‑‑Respondent
Criminal Bail Application No.342 of 1999, decided on 28th April, 1999.
(a) Control of Narcotic Substances Act (XXV of 1997)‑‑‑
‑‑‑‑S.41 & 47‑‑‑Criminal Procedure Code (V of 1898), Ss.496, 497 & 498‑‑‑Bar contained in S.51 of the Control of Narcotic Substances Act, 1997 in respect of bail‑‑‑Scope‑‑‑Applicability of Ss.496, 497 & 498, Cr.P.C. is not totally barred in respect of cases registered under the Control of Narcotic Substances Act, 1997 and the only prohibition on the grant of bail is to a person accused of offence punishable with death, while in other cases under the said Act bail can be allowed in suitable cases.
Gulzaman Khan v. The State decided on 18‑12‑1998; Altaf Hussain v. State PLD 1985 Lah. 10 and State v. Qaim Ali Shah 1992 SCMR 2192 ref.
(b) Criminal Procedure Code (V of 1898)‑‑‑‑
‑‑‑‑S.497‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9, 14 & 15‑‑‑Bail‑‑‑Court obviously could not be oblivious to the menace of drugs and their evil effects in the society, but the law as to the grant of bail in such offences, despite being more stringent than in other offences, could not be stretched in favour of prosecution unjustly end the benefit of doubt, if any, was to go to the accused‑‑‑Prosecution had miserably failed to bring any material on record so as to connect the accused with the commission of the offence and nothing was available to justify rejection of bail‑‑‑Bar contained in S.51 of the Control of Narcotic Substances Act, 1997 was not applicable to the facts of the case‑‑‑Accused was admitted to bail in circumstances.
Gulzaman Khan v. The State decided on 18‑12‑1998; Altaf Hussain v. State PLD 1985 Lah. 10; State v. Qaim Ali Shah 1992 SCMR 2192; Amir v. The State PLD 1972 SC 2777 and State of Rajasthan, Jaipur v. Balchand AIR 1977 SC 2447 ref.
Mir Nawaz Khan Marwat for Applicant.
S. Mamnoon Hasan, Dy.A.‑G. for the State.
2000 M L D 852
[Karachi
Before Amanullah Abbasi, J
JAN MUHAMMAD ---Applicant
versus
THE STATE---Respondent
Criminal Revision Application No.45 and Miscellaneous Application No.687 of 1999, decided on 12th August, 1999.
Criminal Procedure Code (V of 1898)---
----Ss.497 & 561-A---Penal Code (XLV of 1860), S.302/114/34---Bail, grant of---Question of jurisdiction----Determination---Trial Court/Additional Sessions Judge, dismissed application for bail, holding that since kalashnikov was involved in the case accused was to be tried by Special Court under Suppression of Terrorist Activities (Special Courts) Act, 1975---Validity--Kalashnikov though was allegedly recovered from the possession of accused, but same was not proved to have been used by him---Jurisdiction of Trial Court was barred only if kalashnikov was used by accused in occurrence--Kalashnikov having not been proved to be used by accused, Trial Court had jurisdiction to decide bail application of accused.
1996 PCr.LJ 1818; 1994 SCMR 717; Azhar Hussain and others v. The Government of Punjab and others 1992 PCr, LJ 2308; 1.999 PCr. LJ 476; PLD 1997 Kar. 464; 1992 PCr.LJ 1219, 1978 PCr.LJ 864; 1998 PCr.LJ 773 and 1994 PCr. LJ 717 ref.
Allah Bachayo Soomro for Applicant.
Mian Khan Malik, Addl. A.-G.
Hidayatullah Abbasi and Madad Ali Shah: Amicus curiae.
2000 M. L D 865
[Karachi]
Before Mushir Alam, J
AMJAD ALI ‑‑‑Petitioner
versus
THE STATE and another‑‑‑Respondents
Criminal Revision Application No.67 and Miscellaneous Application No. 1760 of 1999, decided on 26th November, 1999.
(a) Criminal Procedure Code (V of 1898)‑‑‑‑
‑‑‑‑S.540‑‑‑Penal Code (XLV of 1860), Ss.302/34 & 114‑‑‑Bringing alleged confessional statement of accused on record‑‑‑Application for‑‑‑Trial Court on application of complainant ordered to bring on record alleged confessional statement of accused for purpose of judicial notice of Court‑‑‑Said order had been assailed by accused contending that said statement of accused was a self‑exculpatory statement and not confessional statement and Trial Court could not take judicial notice of such statement‑‑‑Accused had himself admitted that his statement, was recorded before Magistrate and Trial Court had simply ordered that said statement be brought on record for consideration for whatever it was worth‑‑‑Trial Court had not expressed its verdict as to the nature of statement whether. it was confessional or exculpatory and same was to be decided by Trial Court after taking all facts and circumstances into consideration‑‑‑Notice of application filed by complainant under 5.540, Cr.P.C. was given to the accused as well as Public Prosecutor‑‑‑No prejudice having been shown to have been caused to accused by order of Trial Court accepting application of complainant, petition filed by accused against said order was dismissed in circumstances.
Kazi Pervaiz Iqbal and others v, State PLD 1976 Kar. 283; Ghulam Khan v. .State PLD 1971 Kar. 200; Noor Muhammad alias Nur Ahmed and others v. State PLD 1965 Dacca 204; PLD. 1976 PLD Kar. 583 and PLD 1971 Kar. 20 ref.
(b) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑Preamble‑‑-‑Administration of justice‑‑‑Criminal trial‑‑‑Principle‑‑‑Law favours adjudication on merits‑‑‑Criminal Procedure Code, 1898, like all other procedural law had provided mechanism to. foster cause of justice and not to hamper the same‑‑‑Too stringent interpretation of any provision of law would not in any way advance cause of justice especially when case of accused was not prejudiced and he would get full and fair chance to defend himself‑‑‑Courts of law were not to sit as silent spectators if Public Prosecutor for any reason, would fail or neglect to discharge his duties‑‑Court as guardian of law was required to act in furtherance to the cause of justice.
Habibullah Shaikh for Applicant.
Nidamuddin Brohi for the State.
A.R. Farooq Pirzada for the Complainant.
2000 M L D 875
[Karachi]
Before Rana Bhagwan Das and Mushir Alam, JJ
ADALAT alias MUHAMMAD ALI alias IQBAL and others---Appellants
versus
THE STATE and others---Respondents
Criminal Appeals Nos.49, 50, 58, Criminal Jail Appeal No., 50,, 58, 59 and Criminal .Revision Application No. 56 of 1990, decided on 10th November 1999.
(a) Penal Code (XLV of 1860)---
----Ss.380 & 460---West Pakistan Arms Ordinance (XX of 1965), S.13-D--Appreciation of evidence---Strong and reliable circumstantial evidence furnished by complainant and other prosecution witness who found deceased persons in early hours of the day in state of unconsciousness and bleeding from their head injuries, had fully proved prosecution case---Confessional statement of accused persons recorded by Magistrate taking all possible precaution, voluntarily and free from any threat, coercion or inducement, had lent strong corroboration to prosecution case which stood substantiated by adequate and satisfactory circumstantial evidence---No circumstance was available to indicate that accused were falsely implicated or that prosecution witnesses or Investigating Officer had any animosity against them---Adequate and satisfactory evidence with regard to commission of theft from dwelling house furnished by complainant and other prosecution witness, could not be disbelieved---Recovery of incriminatory weapons was duly supported by police officers whose evidence had been accepted by Trial Court and who had the benefit of watching the demeanour of witnesses---Case against accused was not of mistaken identity or false implication---Prosecution having fully proved the case, order convicting and sentencing accused could not be interfered with.
(b)-Criminal Procedure Code (V of 1898)----
----S. 164---Judicial confession, recording of---Effect---If a judicial confession was truly and voluntarily made and on face of it same could be relied upon, conviction for offence so made out could be recorded---Rule of law that confessional statement must always be supported by other independent evidence was not inflexible.
(c) Criminal trial---
----Evidence---Police officials as witnesses----Police officials were as good witnesses as any other witness---Quality of evidence rather than its quantity ought to be the determining factor for acceptance or rejection of a piece of evidence.
Maqbool Ahmed Awan for Appellant (absent) (in Criminal Appeal No. 49 of 1990).
Ghulam Sarwar Korai for the State (in Criminal Appeal No. 49 of 1990)
Mumtaz Ali Siddiqui for Appellant (in Criminal Appeal No. 58 of 1990)
Ghulam Sarwar Korai for the State (in Criminal Appeal No. 58 of 1990). '
Maqbool Ahmed Aw4n for Appellant (absent) (in Criminal Appeal No. 50 of 1990).
Ghulam Sarwar Korai for the State (in Criminal Appeal No., 50 of 1990).
Appellant in custody (in person) (in Criminal Jail Appeal No. 59 of 1990)
Ghulam Sarwar Korai for the State (in Criminal Jail Appeal No. 59 of 1990)
Abdul Haleem Pirzada for Applicant (absent) (in Criminal Revision Application No. 56 of 1990).
Respondent in custody (in person) (in Criminal Revision Application No. 56 of 1990).
Nemo for Respondent No. l (in Criminal Revision Application No. 56 of 1990).
Ghulam Sarwar Korai for the State (in Criminal Revision Application No. 56 of 1990).
Date of hearing: 10th November, 1999.
2000 M L D 895
[Karachi]
Before Ata‑ur‑Rahman, J
Haji GHAFFAR and 6 others‑‑‑Plaintiffs
versus
KARACHI DEVELOPMENT AUTHORITY through Director of Lands and Estates, Civil Centre, Karachi and 4 others‑‑‑Defendants
Suit No.215 and Civil Miscellaneous Applications Nos. 1800 and 4240 of 1998, decided on 18th February, 1999.
(a) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑Ss.42 & 54‑‑‑Civil Procedure Code (V of 1908), S.11, O.VII, R.11 & O.XXXIX, R.r. 1, 2‑‑‑Rejection of plaint‑‑‑Suit was resisted on grounds of res judicata and limitation‑‑‑Constitutional petition earlier filed by plaintiff, was not disposed of by High Court on merits, but was disposed of on the ground that question raised by parties required a full‑fledged inquiry in the suit and that same could not be adjudicated upon in Constitutional jurisdiction of High Court‑‑‑Effect‑‑‑Suit filed by plaintiffs after disposal of their Constitutional petition, was not hit by principle of res judicata‑‑‑Delay in filing suit having fully and satisfactorily been explained, Court found that suit prima facie was not barred by limitation and that it would not be proper to non‑suit plaintiff at that stage‑‑‑Such findings of Court on application filed by defendants under O.VII, RAI, C.P.C. were tentative and defendants could be at liberty to raise said point again at time of final hearing of the case.
(b) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑Ss.42 & 54‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2‑‑Interim relief, grant of‑‑‑Constitutional petition earlier filed by plaintiffs/petitioners was disposed of by High Court observing that intricate question of fact raised by parties would need elaborate investigation, inquiry and evidence which could only be done after evidence was recorded‑and documents were produced by parties‑‑‑Questions raised and documents produced by parties in Court required a detailed scrutiny during evidence and thereafter, at time of final argument in the case‑‑‑If application for grant of interim injunction filed by plaintiffs/petitioners was dismissed, it would be very difficult to preserve disputed plot as it might change hands and third party interest might be created and there would be likelihood of multiplicity of litigation and also it would be impossible to restore original position‑of the plot in dispute‑‑‑Interim order passed in favour of plaintiffs was confirmed directing parties to maintain status quo till final disposal of suit.
Sami‑ud‑Din Sami and Abdul Haleem Pirzada for Plaintiffs.
Narain Das Motiani for Defendants Nos.4 and 5.
Nemo f9r the K.D.A.
2000 M L D 901
[Karachi]
Before Dr. Ghous Muhammad, J
PUBLIC ELECTRIC WORKS through Proprietor, Karachi‑‑‑Appellant
versus
Mst. SABIRA BEGUM‑‑‑Respondent
First Rent Appeal No. 110 of 1998, decided on 28th January, 1999.
(a) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑
‑‑‑‑Ss.15(2)(ii) & 19‑‑‑Default in payment of rent‑‑‑Husband of landlady as her attorney filed his, affidavit‑in‑evidence to prove default in payment of rent by tenant‑‑‑Tenant had objected that landlady should have appeared, in person for filing affidavit‑in‑evidence instead of giving power of attorney to her husband‑‑‑Validity‑‑‑Objection of tenant had no force as it was not at all necessary that landlady herself should have appeared in Court as witness as recording of evidence by affidavit being declaration on facts made in writing and sworn on oath, was permissible‑‑‑In absence of any legal bar, landlady's attorney was competent witness in view of power, of attorney given by landlady to him.
Messrs Eagle Star Insurance Co. Ltd. v. Messrs Usman Sons Ltd. and others PLD 1969 Kar. 123; Gul Taj Beguni v. Lal Hussain and another PLD 1980 SC (AJ&K) 60; Muhammad Masood Bhatti v. Moinuddin Khan 1998 CLC 703; Messrs John Traders and 3 others v. Ahmed Ali, 1986 CLC 561; Moizur Rehman v. Mrs. Fakhra Javed PLD 1991 Kar. 452; Haji Rehmatullah v. Mst. Munawar Jehan 1995 CLC 1117, Sohail Ahmed v. Dr. Nisar Ahmad 1989 CLC 1040; Muhammad Suleman v. Messrs Alvi Brothers 1991 CLC 1068; Tajammal Hussain Shah v. Mst. Taj Aslam 1989 CLC 662; Kala Khan through Legal Heirs v. Anjuman Musalmanane Mashraqui Punjab, Karachi 1993 CLC 250; Feroz Ahmad v. Mst. Zebra Khatoon, 1992 CLC 735; Haji Abdul Ghaffar v. Abdul Rasool 1986 CLC 869; Dr. S. Hussain .v Mrs. Masiha Begum 1992 CLC 1292; Lithocraft Corporation v. A. Habib through Legal Heirs 1988 CLC 272 and Muhammad Masood Bhatti v. Moinuddin Khan 1988 CLC 703 ref.
(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑
‑‑‑‑Ss. 15(2)(ii) & 10‑‑‑Default in payment of rent‑‑‑Proof‑‑‑Evidence on record did not show that landlady had ever refused to accept rent from the tenant‑‑‑Question of tendering rent through money order or depositing rent in Court would not arise‑‑‑Tenant had also failed to produce on record money order coupons to prove that rent was tendered by him through money of rent by tenant was proved in circumstances.
(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑
‑‑‑‑Arts.73 & 74‑‑‑Primary and secondary evidence‑‑‑Production of‑‑Primary and best evidence should be produced‑‑‑Production of photostat copy and that, too, alongwith written‑statement, had no evidentiary value at all and would deserve to be kept out of consideration.
M. Zia Kiyani for Appellant.
Sardaruddin Qureshi for Respondent.
Date of hearing: 28th January, 1999.
2000 M L D 921
[Karachi]
Before Abdul Hameed Dogar and Ghulam Nabi Soomro, J,J
Senator ASIF ALI ZARDART ‑‑‑ Petitioner
versus
THE STATE‑‑‑Respondent
Criminal Revision Application No. 50 of 1999, heard on 25th May, 1999.
(a) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S.302‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss. 13 (3). 19(4) & 19 (5)‑‑‑Criminal Procedure Code (V of 1898), Ss. 167 & 439‑‑‑Remand of accused to granted by Special Court on the application of DSP in police custody from jail for seven days from the date of taking into custody‑‑Legality, propriety and correctness of the order‑‑‑Impugned remand order had been passed much before the transfer of custody of the accused from Central Prison to CIA Police‑‑‑Physical custody of the accused was handed over to DSP on Sunday i.e. a holiday‑‑‑No reason whatsoever had been assigned in the order for granting physical remand of accused as required under S. 167(3), Cr.P.C. and S. 19(4) of the Anti‑Terrorism Act, 1997‑‑Mandatory provision of law had not been complied with by sending a copy of the remand order to the Sessions Judge concerned or to the Court of appeal‑‑‑Accused was not produced before the Court at the time of passing the remand order ‑‑‑C.I.A. Police had been authorised to take the custody of accused from Central Jail on any occasion favourable to them which was against law‑‑‑Police instead of obtaining remand of accused from the Court in which the case was pending and which had granted bail to accused had approached another Special Court for the said purpose which was again in violation of the decisions of superior Courts‑‑‑Application for grant of 'remand was neither moved by the Public Prosecutor nor a Law Officer as envisaged by S. 19 (5) of the Anti‑Terrorism Act, 1997‑‑‑Administrative Judge alone was competent to grant the required remand of accused in view of S. 13(3) of the. said Act and the Court which had passed the order of remand had acted illegally and without jurisdiction‑‑‑Impugned order was set aside in circumstances.
1993 PCr.LJ 221; 1998 PCr.LJ 2588; Hamid Sarfraz v: Federation of Pakistan PLD 1979 SC 991; Jahanzeb and others v. The State Criminal Bail Applications Nos.212 to 215 of 1998; PLD 1987 SC 13; 1997 SCMR 2008; PLD 1994 SC 281; 1994 SCMR 2442; PLD 1950 Lah. 111; PLD 1971 SC 252 and Ghulam Sarwar and another v. The State 1984 PCr.LJ 2588 ref.
(b) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 167‑‑‑Grant of physical remand of accused to police‑‑‑Principles enumerated.
Gliulam Sarwar and another v. The State 1984 PCr.LJ 2588 ref.
(c) Interpretation of statutes‑‑‑
‑‑‑‑Rules subordinate to the Act‑‑‑Rules are subordinate/subject to the Act‑‑Where any provision or Rule is inconsistent with the provisions of the Act, the latter is to be followed and the former is to be ignored.
(d) Interpretation of statutes‑‑‑
‑‑‑‑ General Law and Special Law‑‑‑Applicability‑‑‑When on a particular legal point or aspect a special statute is silent, then the provisions of General Law would prevail.
Farooq H. Naek, Shahadat Awan and Abu Bakr Zardari for Petitioner.
Muhammad lqbal Raad, A.‑G. for the State.
Dates of hearing: 22nd, 24th and 25th May, 1999.
2000 M L D 946
[Karachi]
Before Shabbir Ahmed, J
Mian NAWAZ SHARIF and others‑‑‑Applicants
versus
THE STATE‑‑‑Respondents
Special Case No.385 of 1999, decided on 12th January, 2000.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑Ss.l(2) & 196‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss. 6, 7, 12, 19, 30 & 32‑‑‑Penal Code (XLV of 1860), Ss. 120‑B, 121, 121‑A, 122 & 123‑‑Prosecution for offences against State‑‑‑Competency of proceedings‑‑Accused had filed applications under 5.196, Cr.P.C. contending that as cases registered against him pertained to offences against State, cognizance thereof could not be taken unless clog put in S.196, Cr.P.C. was removed‑‑‑Accused. had further asserted that provisions of S.196, Cr.P.C. being mandatory in nature; unless prohibition contained in said section was crossed by sanction of Central or Provincial Government followed by a complaint by an authorised person, Court could not take cognizance of offences against him‑‑‑Validity‑‑‑Cases registered against accused being triable by Special Court established under provisions of Anti‑Terrorism Act, 1997, provisions of S.196, Cr.P.C. which pertained to general law, would not be applicable to proceedings before Special Court because the Act which was a special law had overriding effect notwithstanding anything contained in Criminal Procedure Code, 1898 or any other law---Provisions of s.l96, Cr.P.C. would not be applicable to proceedings before Special Court in view of inconsistency and difference between provisions of S.30, Anti‑Terrorism Act, 1997 and S.196 of Criminal Procedure Code, 1898‑‑‑Provisions of S.32 of the Act pertaining to overriding effect of the Act would come into play and bar contained in S.196, Cr.P.C. would not in any way affect the taking of cognizance by Special Court in exercising power under S.19 of AntiTerrorism Act, 1997.
Gokulchand Dawarka Das Morarka v. King PLD 1948 PC 11; AIR 1948 PC 82; Muhammad Khan v. The Government of West Pakistan PLD 1960 (W.P.) Lah. 334; Dost Muhammad v. State 1997 PCr.LJ 184; Dr. Abdul Jabbar and another v. State 1990 PCr.LJ 1708; Nil Madhab and others v. State AIR 1955 Pat. 317; Abdul Razzaq Butt v. Bibi Kulsobm 1999 MLD 3; Dhirendra Nath Beri v. Noorul Huda AIR 1951 Cal. 133; Asif Ali Zardari v. State 1991 PCr.LJ 595; Muhammad Sharif v. State 1992 PCr.LJ 127; Riffat Hayat v. Special Court for Suppression of Terrorist Activities, Lahore and others 1994 SCMR 2177; Manzoor Ahmed v. The State 1996 MLD 129; M. Sharif and others v. State PLD 1958 Lah. 1315; PLD 1969 Provincial Statutes 52; Ali Hassan v. State 1979 PCr.LJ 949; Wali Muhammad v. State 1984 PCr.LJ 2514; Yar Muhammad v. State 1988 PCr.LJ 2156; Syed Abdul Rehman v. S.H.O., City of Mansehra 1996 PCr.LJ 483; Nizamuddin Samejo v. SDM, Mirpur Mathelo 1988 PCr.LJ 988; Abdul B4qi v. State 1998 PCr.LJ 87 and Muhammad Inamul Haq v. State 1988 PCr.LJ 73 ref.
Ijaz Hussain Batalvi and Khawaja Sultan for Applicants.
Raja Qureshi, A.‑G., Sindh with Zahoorul Haq, Special Public Prosecutor and M. Ilyas Khan, Addl. Public Prosecutor for Respondents.
Date of hearing: 12th January, 1999.
2000 M L D 981
[Karachi]
Before Muhammad Roshan Essani, J
MUHAMMAD PERVEZ‑‑‑Applicant
versus
THE STATE‑‑‑Respondent
Criminal Bail Application No. 154 of 1999, decided on 21st August, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16‑‑‑Bail‑‑‑F.I.R. was delayed by 32 days without any plausible explanation‑‑‑Occurrence had taken place during day time in a thickly populated area at a distance of about two kilometres from the police station‑‑Names of accused were known to the complainant party‑‑‑Silence of complainant for such a long period in such circumstances had adversely reflected upon the credentials of the prosecution case ‑‑‑Abductee had not implicated the accused in her statement recorded under S.164, Cr.P.C. as her abductor ‑‑‑Nikahnama placed on record was duly registered which showed the accused and the abductee as husband and wife‑‑‑Case, thus, had necessitated further inquiry into the guilt of accused‑‑‑Bail was granted to accused in circumstances.
Mirza Atiq Baig for Applicant.
Arshad Lodhi, Asst. A.‑G. for the State
2000 M L D 984
[Karachi]
Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ
Syed ASIF ALI NAQVI‑‑‑Applicant
versus
THE STATE‑‑‑Respondent
Criminal Bail Application No.D‑772 of 1999, decided on 26th August, 1999
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.409/477‑A‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Bail‑‑‑Accused being a Head Cashier in the Bank was incharge of the cash‑‑‑Delay in lodging the F.I.R. was well-explained as the Bank Authorities wanted to recover the embezzled amount by negotiations, but the effort went in vain‑‑‑Documents had revealed the shortfall of cash to the tune of Rs.11,00,000‑‑‑Complainant and other Bank Authorities who were witnesses against the accused, had no enmity with him‑‑‑Accused had absconded after the detection of the embezzlement of huge amount in his presence‑‑‑Section 409, P.P.C. was punishable with imprisonment for life‑‑‑Reasonable grounds were present to believe the accused guilty of the offence charged with‑‑‑Accused was refused bail in circumstances.
S.M. Amir Naqvi for Applicant.
S. Mamnoon Hassan, Dy.A‑G. for the State.
2000 M L D 997
[Karachi]
Before Rana Bhagwan Das, J
Mrs. JAVED‑‑‑Petitioner
versus
S.H.O., KHANPUR and others‑‑‑Respondents
Constitutional Petition No.S‑1426 of 1998, decided on 27th August, 1999.
Constitution of Pakistan (1973).‑‑
‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Registration of F.I.R.‑‑‑Disputed and controversial questions of fact with regard to the incident between the parties could not be dilated upon by the High Court in exercise of its Constitutional jurisdiction under Art. 199 of the Constitution which could be invoked by an aggrieved party in the absence of any adequate remedy provided by law‑‑Sessions Court had ample authority to inquire into the allegations of the petitioner and counter‑version of the police in a properly constituted private complaint and to compel the attendance of the accused to answer the charge after having been satisfied about the existence of reasonable grounds to .proceed with the complaint‑‑‑Adequate and alternate remedy being available to the petitioner, her petition was liable to be dismissed on this score alone and the same was dismissed accordingly.
Jamshed Ahmad, v. Muhammad Akram 1975 SCMR 149; Altaf Hussain v. Government of Sindh PLD 1997 ‑Kar. 600; Muhammad Ilyas v, Senior Superintendent of Police 1989 PCr,LJ 1129; Jamshed Khan v. Government of Sindh 1999 PCr.LJ 512 and Multiline Associates v. Ardeshir Cowasjee 1995 SCMR 362 ref.
Abdul Sattar Soomro for Petitioner. Muhammad Iqbal Memon for the State
2000 M L D 1000
[Karachi]
Before Ghulam Nabi Soomro, J
MUHAMMAD SALEEM‑‑‑Petitioner
versus
THE STATE‑‑‑Respondent
Criminal Miscellaneous No. 281 of 1999, decided on 29th June, 1999
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 324/307/353/147/148/149‑‑‑Criminal Procedure Code (V of 1898), S.561‑A‑‑‑Quashing of proceedings‑‑‑High Court could quash the proceedings if the same were without jurisdiction, coram non judice, mala fide or amounted to abuse of process of Court‑‑‑Impugned proceedings were neither shown to have been malafidely filed nor the Trial Court was stated to have no jurisdiction in the matter ‑‑‑Difficult at present stage to arrive at a conclusion that there was no probability of the conviction of accused in the case‑‑‑Continuance of proceedings against the accused did not amount to abuse of the process of the Court and quashing of the same could not secure the ends of justice‑‑‑Petition was dismissed in circumstances.
1988 PCr.LJ 1004; 1992 PCr.LJ 2054 and 1997 PCr.0 1974 ref.
Muhamamd Mukhtar Khalid v. The State PLD 1997 SC 275 and Shaikh Muhammad Yamin v. The State 1973 SCMR 622 rel.
Suleman Habibullah for Petitioner Jawed Akhtar for the State.
2000 M L D 1004
[Karachi]
Before Abdul Hameed Dogar and Wahid Bux Brohi, JJ
MOINUDDIN and another‑‑‑Appellants
versus
THE STATE‑‑‑Respondent
Special Criminal Appeals (Anti‑Terrorism Appeals) Nos.72 and 73 of 1999, decided on 27th September, 1999.
Anti‑Terrorism Act (XXVH of 1997)‑‑‑
‑‑‑‑S.7(b)‑‑‑Penal Code (XLV of 1860), S.392/34‑‑‑Sentence, reduction in‑‑Accused had not challenged the impugned judgment on merits and had simply prayed for taking some lenient view in the matter of sentence‑‑Conviction of accused was consequently maintained‑‑‑Section 7(b) of the Anti‑Terrorism Act, 1997 having been misapplied by the Trial Court was, however, modified to S.7‑B of the said Act‑‑‑Sentence of 10 years' R.I. awarded ,to accused by Trial Court was reduced to 7 years' R.I. which appeared to be appropriate‑‑‑Benefit of S.382‑B, Cr.P.C. was also extended to the accused.
S. Mahmood Alam Rizvi for Appellant (in Special Anti‑Terrorism Appeal No. 72 of 1999).
Mahmood Habibullah for Appellants (in Special Anti‑Terrorism Appeal No. 73 of 1999).
Syed Jalil A. Hashmi and Habib Ahmed, Asstt. A.‑G., Sindh for the State
Date of hearing: 10th September, 1999
2000 M L D 1010
[Karachi]
Before Rana Bhagwan Das and Mushir Alam, JJ
MAHBOOB ALI ‑‑‑Appellant
versus
THE STATE through A.A.‑G. and 5 others‑‑‑Respondents
Criminal Acquittal Appeal No.45 of 1999, decided on 20th January, 2000.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302/201/148/149‑‑‑Criminal Procedure Code (V of 1898), S.417(2‑A)‑‑‑Appeal against acquittal‑‑‑Prosecution evidence was contradictory and hardly reconcilable‑‑‑Judicial confessions of accused suffered from serious illegality as the same had not been certified by the Magistrate as required by S.364(2), Cr.P.C.‑‑‑No conviction even otherwise, could be based on the retracted judicial confession without any strong corroboration tending to link the accused with the commission of the offence of murder‑‑‑Trial Court in acquitting the accused had neither committed any illegality nor violated the settled principles of administration of criminal, justice while assessing the evidence‑‑‑Double presumption of innocence having accrued in favour of accused by the finding of "not guilty", the same could not be lightly disturbed at the instance of the frustrated complainant who had not seriously pursued the case at the trial‑‑‑Appeal against acquittal of accused was dismissed accordingly.
Ghulam Mustafa Saheto, Advocate.
2000 M L D 1020
[Karachi]
Before Abdul Hameed Dogar and Muhammad Roshan Essani, J
MANSOOR ALI BABAR and 5 others‑‑‑Appellants
versus
THE STATE‑‑‑Respondent
Criminal Appeals Nos.200 to 204 and 206 to 208 of 1995 and Criminal Appeals Nos. 61 and 62 of 1996, decided on 30th August, 1999.
Penal Code (XLV of 1860)
‑‑‑‑Ss. 302/34,304/34,396/34; 109/34, 307/34 & 394/34‑‑‑Trials conducted under the repealed provisions of law‑‑‑Cases remanded to Trial Court‑‑Incidents in the cases had taken place on 25‑2‑1995 whereas Criminal Laws (Second'Amendment) Ordinance (VII of 1990) was in force since 2‑10‑1990, whereby the provisions relating to Qisas & Diyat were introduced and in the Chapter relating to offences against human,body Ss.299 to 338 had been substituted in the Penal Code‑‑‑Section 53, P.P.C. had also been amended by the said Amendment Ordinance introducing the punishments provided by 'the Shariah‑‑‑Trial Court had conducted the trials in the cases under the old/repealed provisions of law‑‑‑Neither charges of Qatl‑i‑Amd liable to Qisas, as envisaged under Ss‑300 & 302, P.P.C. had been framed, nor the trials were held in accordance with S.304, P.P.C.‑‑‑Trial Court had convicted the accused under Ss.307 & 109, P.P.C. despite the fact that S.307, P.P.C. was not existing on the Statute Book at the relevant time and S.109, P.P.C. had already been declared to be against the Injunctions of Islam as envisaged in the Holy Qur'an and Sunnah, by the Supreme Court‑‑Such illegality being not curable under S.537, Cr.P.C. had vitiated the entire proceedings‑‑‑Mandatory for the Trial Court to specify the relevant subsections of S.302, P.P.C. with detailed reasons while convicting the accused thereunder, failure of which had frustrated the very purpose of the said Islamic provisions of law‑‑‑Convictions and sentences of accused were consequently set aside and the cases were remanded to Trial Court for retrial in accordance with law.
Noorul Islam v. The State 1986 PCr.LJ 1818; Noorul Islam v. The State 1986 SCMR 1836; Federal Shariat Court of Pakistan through Secretary, Ministry of Law and another v. Gul Hassan Khan and others PLD 1989 SC 633; Federation of Pakistan v. N.‑W.F.P. Government and another PLD 1990 SC 1172; Muddasir alias Jimmy v. The State 1996 SCMR 3; Criminal Appeals Nos.126, 135 and Criminal Jail Appal Nos.26 and 69 of 1995 ref.
Muhammad Ashraff Kazi and Azizulah K. Shaikh for Appellants.
Muhammad Iqbal Raad, A.‑G. for Respondent.
2000 M L D 1046
[Karachi]
Before Muhammad Ashraf Leghari, J
JAN MUHAMMAD ‑‑‑Applicant
versus
STATE‑‑‑Respondent
Criminal Bail Application No. 102‑and Miscellaneous Applications Nos. 190 and 191 of 1999, decided on 17th May, 1999.
(a) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss.324/337‑H, 147, 148 & 149‑‑Pre‑arrest bail, grant of‑‑‑Report of occurrence was promptly lodged within 45 minutes‑‑‑Direct role of firing was attributed to accused and injuries sustained by injured were on vital part of his body‑‑‑Five empties were secured by police from place of occurrence‑‑‑Plea of alibi taken by accused could not be considered at bail stage‑‑‑Motive as disclosed in F.I.R. was that previously accused had, committed murder of a woman of a complainant party and accused was awarded death sentence‑‑‑Compromise having been arrived at between parties in that case, accused was released but grudge Vas still lurking in mind of accused and he, armed with gun attacked complainant party and caused injuries on. vital part of body of injured‑‑Matter of old age of accused required verification from identity card showing age of accused‑‑‑Application for pre‑arrest bail, was dismissed in circumstances.
Abdul Jabbar v. The State 1.977 SCMR 50 and 1978 SCMR 256 ref.
(b) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), S.324/337‑H/147/148/149‑‑‑Prearrest bail‑‑‑Plea of alibi‑‑‑Consideration at bail stage‑‑‑Accused had contended that on the day of incident he was admitted in hospital as an indoor patient‑‑‑Accused had produced certificate allegedly issued by concerned hospital‑‑‑Plea of alibi could be decided finally when record would be called from hospital concerned and Doctor concerned would be examined, because in such matter the very identity of accused was to be copsidered‑‑‑Plea of alibi was to be examined thoroughly at trial when identity of accused regarding his admission in hospital was established.
PLD 1974 SC 83 and 1987 SCMR 788 ref.
Khalid Iqbal Memon for Applicant Inayatullah Mario for the State. Complainant in‑person.
Date of hearing: 17th May, 1999.
2000 M L D 1066
[Karachi]
Before S. Ahmed Sarwana, J
AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN‑‑‑Plaintiff
versus
PAK GREEN FERTILIZER COMPANY LIMITED and others‑‑‑Defendants
Suit No. 1332 of 1996, heard on 14th April, 1999.
(a) Contract Act (IX of 1872)‑‑‑
‑‑‑‑S. 133‑‑‑Variance in contract without consent of surety‑‑‑Effect‑‑‑Surety cannot be held bound to something for which he had not contracted unless the surety has assented to new terms.
Seth Pratap Singh Moholalbhai v. Kashavlal Harilal AIR 1935 PC 21 rel.
(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑
‑‑‑‑S. 9‑‑‑Contract Act (IX of 1872), S.133‑‑‑Suit for recovery of Bank loan‑‑‑Proceedings against guarantors‑‑‑Plea of variance in loan agreement without consent of the guarantors ‑‑‑Validity‑‑‑Defendants/guarantors had expressly undertaken obligations and had given their advance consent in clear terms that they would be bound by any variation in terms of the loan‑‑Where the defendants/guarantors unequivocally expressed their consent to variation with full knowledge of its implications and had given their assurance that they would be bound by the same, the defendants/guarantors could not contend that the variation was without their consent and that they were discharged from the obligations‑‑‑Provision of S.133, Contract Act, 1872, was not applicable, as the variation in the contract was made with clear consent of the defendants/guarantors in the letter of guarantee‑‑Defendants/guarantors were severally liable for the payment of dues of the defendants/loanees to the extent of amount stated in the Letter of Gaurantee‑‑‑Suit was decreed accordingly.
Ananda Mohan v. Ananda Chandra AIR 1917 Cal. 811 distinguished.
(c) Banking Companies (Recovery of .Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑
‑‑‑‑S. 2 (f)‑‑‑Loan‑‑‑Anticipated interest on Bank loan‑‑‑Legality‑‑‑Claim of anticipated interest being not legally bona fide could not be allowed.
(d) Wards and phrases‑‑‑
‑‑‑‑"Return"‑‑‑Meaning‑‑‑Word "return" means profit on sales or income from investment‑‑‑Interest payable to Bank is nothing but return on its investment which has been given in the form, of loan by the Bank to the loanee.
Black's Law Dictionary, 6th Edn., p. 1318 ref.
Faishul Islam Nomani for Appellant Akber H. Mirza for Respondent.
Dates of Hearing: 19th March and 14th April, 1999.
2000 M L D 1073
[Karachi]
Before Ata‑ur‑Rahman, J
ALLAH BAKHSH‑‑‑Plaintiff
versus
KARACHI METROPOLITAN CORPORATION and 2 others‑‑‑Defendants
Suit No.418 of 1988, decided on 7th December, 1998
(a) Fatal Accidents Act (XIII of 1855)‑‑‑
‑‑‑‑S. 1‑‑‑Suit for damages‑‑‑Absence of post‑mortem report ‑‑‑Effect‑‑Conducting a post‑mortem to ascertain cause of death was not mandatory‑‑Court had to examine such case and to draw conclusion as to cause of death, relying upon evidence led in respect of surrounding circumstances of incident that took place at the relevant time ‑‑‑Post‑mortem report could assist the Court to reach a possible conclusion as to cause of death‑‑‑Procedure of postmortem being based on certain scientific procedures which were not always definite and were also under process o: development‑‑‑Absence of postmortem of the deceased could hardly make any material damage to the case of the plaintiff in circumstances.
(b) Fatal Accidents Act (XIII of 1855)‑‑‑
‑‑‑‑S.1‑‑‑Death caused ,by electrocution‑‑‑Liability‑‑‑Damages‑‑‑Deceased was electricuted by lamp post in public park ‑‑‑Lamp post though was inside the park which was maintained by one department yet the corporation supplying electricity was also responsible to take proper care and caution for proper maintenance of the power supplied to its consumers‑‑‑Both the departments i.e. one maintaining the park and the other supplying power were jointly and severally responsible to pay damages to the plaintiff‑‑‑Suit was decreed accordingly.
Pakistan Steel Mills Corporation Ltd: v. Nazir Hussain Shah 1990 CLC 515; Barkat Ali Khan and another v. K.E.S.C. PLD 1983 Kar. 453; Iftikhar Hussain and another v. K.E.S.C. PLD 1959 Kar. 550; Kulsoom v. Jalil Ahmed Khan and others PLD 1964 Kar. 712; M.E. Patel v. Tajamul Hussain 1982 CLC 2238; Shahabuddin and others v. Liaqat Ali and others 1988 MLD 928; Farookh Hamid Rizvi v. The Managing Director, Pakistan Refinery Ltd. and others 1989 MLD 3533; Farook Hameed Rizvi v. The M.D., Pakistan Refinery Ltd., 1989 MLD 1228; Mariam Bai and others v. M.M. Isphani Ltd. and others PLD 1965 (W.P.) Kar. 59; Manmatha Nath Kuri v. Mohamamd Mokhtesur Rahman PLD 1963 Dacca 290; Khan Sahib Mohammad Ibrahim Khan v. Latif and others PLD 1957 (W.P.) Kar. 352; Sakina and others v. Hussain and others 1986 CLC 288 and Pakistan v. Abdul Ghani PLD 1964 SC 68 ref.
Muneer A. Malik for Plaintiff. M. Yasin Kiyani for Defendant No. 1.
Zaman Khan for Defendant No.2.
Habib‑ur‑Rasheed for Defendant No.3.
J.M. Jawaid for Defendant No.3.
Date of hearing: 7th December, 1998.
2000 M L D 1093
[Karachi]
Before Shaiq Usmani, J
Messrs TANG CRAFT LIMITED‑‑‑Plaintiff
versus
Messrs HAKSONS INTERNATIONAL and 2 others‑‑‑Respondents
Suit No.20 of 1993, decided on 25th November, 1998.
Civil Procedure Code (V of 1908)‑‑‑‑
‑‑‑‑O. XXXVII, R.2‑‑‑Limitation Act (IX of 1908), Art.78‑‑‑Suit for recovery of money‑‑‑Dispute with regard to dishonoured cheques which were ten in number‑‑‑Out of the disputed cheques seven cheques were issued beyond the period of limitation of three years and only three cheques were issued within limitation, out of those three only one cheque was issued by the defendants‑‑‑Effect‑‑‑All the cheques produced, by the plaintiff's witness during evidence were time‑barred except three cheques and two of which had not been issued by the defendants, defendants were liable to the extent of only that single cheque‑‑‑Suit was decreed accordingly.
Muhammad Aqil for Plaintiff.
Anwar Mansoor for Defendant.
2000 M L D 1104
[Karachi]
Before Rasheed Ahmed Razvi, J
CHAND FEROZ BIBI‑‑‑Plaintiff
versus
Haji MALIK MUHAMMAD KHAN and another‑‑‑Defendants;
Suit No.95 of 1988,‑decided on 24th March, 1998.
(a) Fatal Accidents Act (XIII of 1855)‑‑‑
‑‑‑‑S. 1‑‑‑Death by fatal accident‑‑‑Filing of suit under S.1 of Fatal Accidents Act, 1855‑‑‑Competency‑‑‑Suit may be filed by any of the legal representatives of deceased, died as a result of fatal accident, either by himself as well as on behalf of other legal heirs or beneficiaries who may be entitled to maintain such claim.
Nazir Hussain Shah v. Pakistan Steel Mills 1989 MLD 514 rel.
(b) Civil Procedure Code (V of 1908)‑‑‑ .
‑‑‑‑O.I, R.9‑‑‑Misjoinder and non joinder of necessary parties‑‑‑Burden to prove‑‑‑Burden to prove that suit was bad for non joinder of necessary and proper parties heavily lay on defendants.
(c) Fatal Accidents Act (XIII of 1855)‑‑‑
‑‑‑‑S.1‑‑‑Suit for damages‑‑‑Composite negligence‑‑‑Applicability‑‑‑Open to plaintiff to sue any person so liable without making other tort‑feasor a party to suit in case of joint and several liabilities.
Anthra Marin Export (Pvt.) Ltd. v. Ladha Krishina AIR 1984 Mad.358; Law Relating to Traffic Offence and Accident Claim, IInd Edn., 1989; United India Fair and General Insurance Ltd. v. U.E. Parsad AIR 1985 Knt. 160 and Jyoti Parshad Dixit v. Sint. Bitan Davi AIR 1985 All. 32 ref.
(d) Fatal Accidents Act (XIII of 1855)‑‑‑
‑‑‑‑S:I‑‑‑Death by fatal accident‑‑‑Onus to prove‑‑‑Scope‑‑‑Doctrine of res ipsa loquitur‑‑‑Applicability‑‑‑One factum of accident is proved resulting in death, burden of plaintiffs discharged and presumption of negligence arises and burden shifts upon defendant to show that the accident has not been caused due to rash and negligent act of the defendant‑‑‑Doctrine of res ipsa loquitur is attracted.
Qazi Arifuddin and another v. Government of Sindh PLD 1991 Kar. 291; Pakistan Steel Mills Corporation Limited and another v. Malik Abdul Habib and another 1993 SCMR 848; Mst. Sakina and 3 others v. Messrs National Logistic Cell and 2 others 1995 MLD 633 ref.
(e) Fatal Accidents Act (XIII of 1855)‑‑‑
‑‑‑‑S.1‑‑‑Death by rash and negligent driving‑‑‑Liability of damages‑‑Deceased died in a road accident where truck hit a rickshaw‑‑‑Accident was caused due to rash and negligent driving of the truck driver‑‑-Truck was owned by one person while it was being driven by the other‑‑‑Where such fact was proved both the persons, were jointly and severally liable to pay monetary compensation/damages as a result of death caused due to wrongful and negligent act of the driver‑‑‑Suit was decreed accordingly.
Nasir Maqsood for Plaintiff.
Nemo for Defendants.
Dates of hearing: 6th and 24th February, 1998.
2000 M L D 1112
[Karachi]
Before Nazim Hussain Siddiqui, C.J. and Ghulam Rabbani, J.
PEOPLES WORKERS' UNION KESC through Chairman and 2 others‑‑‑Petitioners
versus
MAN, PRIVATIZATION COMMISSION and 5 others‑‑‑Respondents
L38 and D‑439 of 1998, decided on 20th January, Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Privatization of a State‑owned Corporation‑‑‑Petitioners were trade unions of employees of the Corporation and assailed the privatization proceedings‑‑‑Objectives of privatization policy being not disputed, petitioners were concerned about transparency of privatization, procurement of maximum price, equal excess to all to participate in auction and protection of interest of workers‑‑‑Government of Pakistan through Privatization Commission intended to sell up to 51 % of its equity interest in the Corporation to strategic buyers who would be given management and control‑‑‑Intended disposal of the shares was patently not restricted to the foreigner‑‑‑Government in written submission had expressed in categorical terms, that it was not acting in any manner that might be prejudicial to the interest of the Corporation, its employees or customers, and to the country too‑‑‑Petitioners' having only false apprehension, petition was dismissed in limine.
AIR 1992 All. 88; 1996 MLD 705; 1994 MLD 1887; 1996 SCMR 543; 1997 SCMR 641; PLD 1998 Kar. 416; PLD 1996 Kar. 27 and PLD 1997 SC 334 ref.
Nemo for Petitioner (in C.P. No.438 of 1998).
Sathi M. Ishaque and S.M. Iqbal for Petitioners (in C.P. No. 439 of 1998).
Muneer A. Malik for Respondents (in both the Petitions).
2000 M L D 1179
[Karachi]
Before Rasheed Ahmed Razvi, J
BASHIR AHMED ---Plaintiff
versus
Messrs FAZAL FLOUR MILLS and 2 others---Respondents
Suit No. 1378 of 1989, decided on 2nd November, 1999
(a) Fatal Accidents Act (XIII of 1855)---
----S. 1 ---"Beneficiaries" and "legal heirs" of deceased ---Distinciton--Beneficiaries as defined in S.1, Fatal Accidents Act, 1855, are different from legal heirs as defined under the personal law of that affected party---Benefit is limited to real parents, spouses and real children of the deceased under the provisions of S. l of Fatal Accidents Act, 1855---Brothers, sisters and grandparents are excluded from the category of beneficiaries.
Rasheed Abdul Hafeez and 3 others v. Ahmad and another 1991 CLC 370 ref.
(b) Fatal Accidents Act (XIII of 1855)---
----S.1---Maxim "res ipsa loquitur"---Maxim is a rule of evidence, which provides that the plaintiff is required to prove the factum of accident, whereafter the burden is shifted upon the defendant to prove that the accident occurred not due to his or their negligence.
Kandan v. Al-Hayat Services (Pvt.) Ltd. 1988 CLC 525; Al-Hayat Services v. Kandan 1989 CLC 2153 and Shamim Akhtar v. Javedan Cement 1997 CLC 955 ref.
(c) Fatal Accidents Act (XIII of 1855)---
----S.1---Res ipsa loquitur, doctrine of---Applicability---Doctrine applies firstly, when the thing that inflicted damage was under the sole management and control of the defendant, secondly that occurrence was such that it would not have happened without negligence and, thirdly, that there must be no evidence as to why or how the occurrence took place---Defendants, in such circumstances, had to persuade the Court, that accident did not occur on account of their negligence.
Pakistan Steel Mills Corporation Ltd. v. Malik Abdul Habib 1993 SCMR 848 and Qazi Arifuddin v. Government of Sindh and others PLD 1991 Kar. 291 rel.
(d) Fatal Accidents Act (XIII of 1855)---
----S. 1---Suit for damages on the basis of fatal accidents---Doctrine of res ipsa loquitur---Applicability---Onus to prove---Plaintiff proved that his deceased son was employee of defendant on the day in question, the deceased was within premises of the factory and died of unnatural death---Where such facts had been proved by the plaintiff, burden was shifted upon defendants to prove that 'the deceased died not because of their negligence---Evidence produced by defendants was mutually destructive, sketchy, did not inspire confidence and the witnesses by their conduct had attempted to conceal the real cause of death---Maxim "res ipsa loquitur", thus, fully attracted in circumstances suit was decreed accordingly.
Al-Hayat Services v. Kandan 1989 CLC 2153; Bhurmal and Mitra Motor Association v. Raghunath Bansilal Kasat AIR 1963 Bom. 144; Barkway v. South Wales Transport Co, Ltd. (1950) 1 All ER 392; Ursilina D'lima v. Orient Airways Ltd. PLD 1960 Kar. 712; P.I.A. v. Ursulina D'lima PLD 1966 Kar. 580; Karim Bux v. Karachi Electric Supply Corporation 1997 CLC 507; Government of Pakistan v. Ishrat Begum 1999 MLD 768; Government of Punjab v. Mst. Kamina and others 1990 CLC 413; Mst. Kamina and another v. Al-Amin Goods Transport Agency and 2 others 1992 SCMR 1715; Storey v. Ashton 4 QBD 476; Mukhtiar Begum v. Karachi Transport Corporation and another 1992 MLD 1710 and Karachi Transport Corporation and others v. Mukhtiar Begum and others 1998 SCMR 807 ref.
(e) Fatal Accidents Act (XIII of 1855)---
----S.1---Recovery of funeral expenses---Where such expenses were not disputed, same were liable to be recovered by .plaintiff under S.1 of Fatal Accidents Act, 1855.
Punjab Road Transport Board v. M. Muhammad Sadiq and another 1987 CLC 933 ref.
(f) Fatal Accidents Act (XIII of 1855)---
----S. 1---Recovery of damages---Life expectancy for purpose of computation of damages---Where life expectancy of deceased is less than that of the beneficiaries, then quantum of damages is to be calculated on the basis of life span of such deceased.
(g) Fatal Accidents Act (XIII of 1855)---
----S. 1---Computation of damages---Average life span in Pakistan--Generally 70 year is treated to be average life span in Pakistan.
Nasir Maqsood for Plaintiffs.
A. F. M. Mukarim for Respondent.
Dates of hearing: 16th, 25th August; 14 and 30th September, 1999.
2000 M L D 1190
[Karachi]
Before Wahid Bux Brohi, J
MUHAMMAD ESSA and 2 others‑‑‑Appellants
versus
THE STATE‑‑‑Respondent
Criminal Appeal No.73 and Miscellaneous Application No.618 of 1999, decided on 3rd March, 2000.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 426(1)‑‑‑Penal Code (XLV of 1860), S.504/337‑F(i)/336/ 337‑A(i)/34‑‑‑Suspension of sentence‑‑‑Sentence awarded to accused was anomalous and it was not clear as to what sentence had been passed in respect of a particular offence‑‑‑ Gun with which the accused was allegedly armed was not used in the commission of the offence‑‑‑Victim had no gunshot injury‑‑‑If such facts could be considered at the time of examining the bail plea under S. 497(1), Cr.P.C., the same benefit could not be withheld at the stage of considering the application for suspension of sentence‑‑‑Sentence of accused was suspended in circumstances and he was released on bail accordingly.
Mst. Latif Bibi v. Abdul Ghafoor and another 1994 SCMR 1227; Wasimul Haque v. The State 1999 MLD 1282; Muhammad Aslaui v. Yaqoob and another 1984 SCMR 103; Farhat Azeem v. Waheed Rasul and others PLD 2000 SC 18 and Maqsood v. Ali Muhammad and another 1971 SCMR 657 ref.
Hidayatullah A. Abbassi for Appellants.
Muhammad Ishaque Khoso for the Complainant.
Rasheed Ahmed Qureshi, Asstt. A.‑G. for the State
2000 M L D 1193
[Karachi]
Before Wahid Bux Brohi, J
ASHIQUE ALI LASHARI‑‑‑Applicant
versus
THE STATE‑‑‑Respondent
Criminal Bail Application No. 765 of ‑1999, decided on 25th February, 2000.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/109/34‑‑‑Bail‑‑‑Allegation against the accused was that though he was not present at the place of occurrence he, a few days back, had instigated the co=accused, who had caused fire‑arm and hatchet injuries to the deceased‑‑‑Question of vicarious liability of accused could be examined tentatively at bail stage which required some further probe‑‑‑Mere allegation that the accused had been issuing threats and his release would result in more killings could not be a ground for refusing bail and incarcerating him as a preventive measure‑‑‑Bail was allowed to accused in circumstances.
Amanullah Shah v. State PLD 1996 SC 241; Faraz Akram v. State 1999 SCMR 1360; Muhammad Ashraf Khan Tareen v. State 1996 SCMR 1747; Aftab Shahban Mirani v. President of Pakistan 1998 SCMR 1863; Muhammad Rashid v. State 1979 SCMR 92; Nazar . Muhammad v. State PLD, 1978 SC 236 and Manzoor v. State PLD 1972 SC 81 ref.
Syed Madad Ali Shah for Appellant.
Hidayatullah Abbasi for the Complainant.
Rasheed Ahmed Qureshi, A.A.‑G. for the State.
2000 M L D 1268
[Karachi]
Before Amanullah Abbasi, J
Mirza ALI KHAN‑‑‑Applicant
versus
STATE‑‑‑Respondent
Criminal Appeal No. 154 and Miscellaneous Application No. 1475 of 1999, decided on 8th March, 2000.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 426(1)‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Suspension of sentence‑‑‑ Accused although had not agitated the point of age before the Trial Court, yet the fact remained that he was between 15 and 16 years of age at the time of commission of offence‑‑‑Accused had also remained on bail during trial proceedings‑‑‑Sentence of imprisonment for life awarded to accused by Trial Court was suspended in circumstances and he was released on bail accordingly.
Shahadat Awan for Applicant.
Muhammad Ismail Memon for the State.
2000 M L D 1271
[Karachi]
Before Amanullah Abbasi, J
EJAZ AHMED ‑‑‑Applicant
versus
STATE‑‑‑Respondent
Criminal Revision No. 119 and Miscellaneous Applications Nos. 1452 and 1453 of 1999, decided on 2nd March, 2000.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302‑‑‑Qanun‑e‑Shahdat (10 of 1984), Art.17‑‑‑Tazkiya Al‑Shuhood‑‑Determination of competence of witnesses‑‑‑Observation made by Trial Court in the impugned order to the effect that question would be put to the witnesses before,recording their evidence in compliance with Art.17 of the Qanun‑e‑Shahadat, 1984, though their credibility would finally be determined under Tazkiya Al‑Shuhood at the time of passing the judgment, was not open to any serious objection'‑‑‑For the purpose of imposing a Hadd punishment it was necessary that standards of evidence prescribed in Qur'an and Sunnah were met and accordingly Tazkiya Al‑Shuhood was determined on the basis of principles laid down by Supreme Court in Ghulam Ali's case reported in PLD 1986 SC 740 and Muzakki would also have to be examined at the time of putting questions to the witnesses.
Ghulam Ali v. The State PLD 1986 SC 741 ref.
Shahadat Awan for Applicant Miss Rana Khan for the State
2000 M L D 1312
[Karachi]
Before Mushtaq Ahmed Memon, J
PAK LIBYA HOLDING CO. (PVT.) LTD. ‑‑‑Applicant
Versus
NORTHERN CHEMICALS LTD. and others‑‑‑Respondents
Execution Application No. 55 of 1999, decided on 20th September, 1999.
Civil Procedure Code (V of 1908)‑‑‑--
‑‑‑‑Ss. 38 & 39‑--Execution of mortgage decree‑‑‑Scope‑‑‑Such decree could be executed by Court passing such decree notwithstanding location of mortgaged property outside the territorial jurisdiction of the Court‑‑‑Where property owned‑ by the' judgment‑debtor was outside the territorial jurisdiction of the Executing Court, application for execution was maintainable.
Tincouri Debya v. Shib Chandra Pal Chowdhury and others ILR 21 Cal. 639; Shaikh Abdul Hadi v. Mt. Kabultunnissa AIR 1925 Pat. 139; Rajagopala Pandarathar and others v. Tirupathis Pillai and another AIR 1926 Mad. 421 and Girdhari Lal v. Pars Ram and another AIR 1933 Lah. 687 ref.
Noorullah A. Manji for the Decree‑Holder.
Hamza I. Ali. Amicus curiae.
2000 M L D 1318
[Karachi]
Before Rana Bhagwan Das, J
NABI BUX and others‑‑‑Applicants
Versus
Syed MUMTAZ ALI SHAH and another‑‑‑Respondents
Civil Revision No. 69 of 1998, heard on 10th December, 1999.
(a) Muhammadan Law‑‑‑
‑‑‑‑ Pre‑emption‑‑‑Concurrent finding of fact by both the Courts below ‑‑‑Pre emtor filed suit on the basis of being "Shaft‑e‑Jar" and "Shaft‑e‑Khalit"‑‑Trial Court decreed the suit and the decision was upheld by Lower Appellate Court‑‑‑Validity‑‑‑Both the Courts below had found the pre‑emptor as owner of the adjoining plot of suit land‑‑‑ "Talb‑e‑Muwathibat" and "Talb‑e‑Ishhad" were made by the pre‑emptor with utmost promptitude and without loss of time‑‑‑Such evidence was found to‑be reliable and inspiring confidence and the same was rightly accepted by the Courts below and the same were neither whimsical nor unwarranted by evidence or perverse‑‑‑Finding of fact did not suffer from any inherent defect or misreading of evidence‑‑‑High Court declined interference.
Iftikharuddin v. Jamshed K.A. Marker PLD 1995 Kar. 608 ref.
(b) Muhammadan Law‑‑‑
‑‑‑‑ Pre‑emptor‑‑‑Law of pre‑emption as envisaged by the Qur'an and Sunnah does not restrict the right to immovable properties other than commercial properties.
M.R. Sons v. Junaid Associates (Pvt.) Limited PLD 1990 Kar. 387 ref.
(c) Interpretation of statutes‑‑‑--
‑‑‑‑ Rights conferred by law can neither be curtailed nor enlarged in the process of interpretation of legal position.
(d) Civil Procedure Code, (V of 1908)‑‑‑--
‑‑‑‑S. 115‑‑‑Revisional jurisdiction‑‑‑Scope‑‑‑Finding of fact ‑‑‑Jurisdiction of revision al Court, essentially extends to corrections of errors of law and not to substitute findings of fact recorded by the Courts below.
(e) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.XLI, R.2‑‑‑Muhammadan Law ‑‑‑Pre‑emption‑‑‑Plea of belonging to Shia Sect‑‑‑Raising of such plea at appellate stage‑‑‑Validity‑‑‑Parties had not raised any question regarding the sect during the trial‑‑‑Where a plea was not raised at trial stage, the same was not allowed to be raised at appellate stage‑‑‑Lower Appellate Court was justified in refusing the prayer for recording additional evidence in circumstances.
(f) Muhammadan Law‑‑‑
‑‑‑‑ Pre‑emption‑‑‑Sect of parties‑‑‑Unless otherwise pleaded, Muslims living in Pakistan are presumed to belong to Sunni Sect.
(g) Civil Procedure Code (V of 1908)‑‑‑--
‑‑‑‑O.XLI, R.27‑‑‑Additional evidence, production of‑‑‑Scope‑‑Additional evidence, whether oral or documentary cannot be produced in Appellate Court unless the Court requires any document to be produced or any witness to be examined to enable the Court to pronounce judgment or for any other substantial cause‑‑‑Where the Court of original jurisdiction has refused to admit evidence which ought to have been admitted, production of additional evidence may be permitted by Appellate Court in circumstances.
Haji Memon Abdul Lateef Memon for. Applicants.
Abdul Naeem for Respondent No. 1
Saifuddin Shah for Respondent No.2.
Date of hearing: 10th December, 1999.
2000 M L D 1337
[Karachi]
Before Rana Bhagwan Das, J
IJAZ ANIS---Plaintiff
Versus
TARIQ ISA and others---Defendants
Civil Miscellaneous Application No. 7119 in, Suit No. 675 of 1992, decided on 7th August, 1998.
(a) Civil Procedure Code (V of 1908)----
----S. 9, O.XXX, R.1 & O.XXXIX, Rr.1, 2 & 4---Partnership Act (IX of 1932), S.69---Suit for recovery of amount on account of share of commission under contract---Interim injunction, grant of---Plaintiff had not been able to make out a strong prima facie case for attachment of amount of commission withheld under an interim attachment order passed by Court nearly six years ago---Balance of convenience and essential ingredient relating to irreparable injury also did not lean in favour of plaintiff/petitioner---Plaintiff had no vested legal right to any property or a legal character in order to entitle him to relief of injunction which was purely a discretionary and equitable in nature---Interim order issued in favour of petitioner/plaintiff was recalled.
(b) Negotiable Instruments Act (XXVI of 1881)-----
----S: 13---Letter of Credit---Nature---Scope and working letter of credit and its function---Conditions for enforcement---Irrevocable letter of credit--Characteristics---Letter of Credit was altogether independent from original contract between buyer and seller---Breach of contract of sale---Purchaser could not frustrate working of contract represented by a letter of credit--Working of Letter of Credit could only be interrupted if it was shown that one or other condition of Letter of Credit itself had been breached--Negotiating Bank or holder of negotiable instrument in due course had absolutely no concern with working/improper working of original contract of sale---Payment due under Letter of Credit could not be stopped/restrained unless there was a strong case of fraud, forgery or obtaining wrongful advantage from contract---Irrevocable Letter of Credit could not be dishonoured, except when any demand for payment was fraudulent or where there was a challenge to validity of Letter of Credit---Irrevocable Letter of Credit had a definite implication, it was a mechanism of great importance and any interference with such machanism would have serious repercussions on the international commitments in the comity of Nations---Courts were not entitled to interfere with such contracts except under exceptional circumstances.
Malas and another v. British Imex Industries Limited (1985) 1 All E.L.R. 262; Power Curber International Ltd. v. National Bank of Kuwait (1981) 3 All E.L.R. 607; Tarapore & Co. v. O. Tractors (1969) 1 SCC 233; Kohinoor Trading (Pvt.,) Ltd. v. Mangrani Trading Co. 1987 CLC 1533; Allied Industries Hub (Pvt.) Ltd. v. China National Metals 1989 MLD 2027; Banque Indosuez Belgium v. Haral Textile Ltd. 1998 CLC 582; Balagamwala Oil Mills (Pvt.) Limited v. Shahkarchi Trading A.G. PLD 1990 Kar.1 and Mohiuddin v. Province of East Pakistan PLD 1962 SC 119 ref.
Asghar Farooq for Plaintiff.
Kazim Hassan for Defendants Nos. 1 and 2.
Kamal Azfar for Defendants Nos.3 and 5.
2000 M L D 1374
[Karachi]
Before Abdul Hameed Dogar and Wahid Bux Brohi, JJ
MUHAMMD FAISAL and others‑‑‑Appellants
Versus
THE STATE‑‑‑Respondent
Special Anti‑Terrorism. Appeal No.21 and Confirmation Case No.8 of 1999, decided on 8th September, 1999. . .
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302/324/148/149‑‑‑Anti‑Terrorism Act (XXVII of 1997), 5.7‑‑Appreciation of evidence‑‑‑Incident was reported with delay of one hour and no explanation of any sort was furnished by prosecution for the delay‑‑No identification test of accused persons was arranged through witnesses and no explanation for the same was furnished‑‑‑Subsequent identification of accused in the Court, had lost its evidentiary value, in circumstances‑‑‑Firing was made by a mob from hidden places in streets and buildings, but prosecution witnesses had not furnished any explanation as to whom they had identified‑‑‑Prosecution had failed to produce at trial the vehicle which came across the firing‑‑‑Exchange of fire though took place .for about 10 to 15 minutes, but neither anyone from the side of accused persons sustained any injury nor any corresponding fire‑arm marks were found on walls of surrounding buildings‑‑‑Record had shown that more than 100 fires were made, but only 5 empties of kalashnikov, 2 empties of T.T. Pistols and 1 empty of 7 m.m. rifle were recovered from the side of accused whereas recovery of not even a single empty from the side of complainant party was recovered‑‑‑Such fact had reflected serious doubt on factum of incident‑‑‑No evidence with regard to the collection of blood from the scene of offence or from inside the vehicle had come on record‑‑‑Complainant had exaggerated and improved his version by impleading accused persons at trial about whom he did not mention anything to the F.I.R. which had made the case of prosecution against said accused to be of doubtful nature‑‑‑Prosecution having failed to make out case against accused persons, their conviction and sentences were set aside‑‑‑Accused who was specifically named in F.I.R. and who had been implicated by nearly all prosecuting witnesses, his conviction was upheld, but his sentence was reduced accordingly because injuries on person of injured were not specifically attributed to him.
Mehram Ali's case PLD 1986 SC 1445; Wazir and others v. The State PLD 1960 (W.P.) Kar. 674; Hadi Bux v. The State PLD 1963 (W.P.) Kar. 805; Mahmood Ahmed and 3 others v. The State and another 1995 SCMR 127 and 1982 SCMR 129 ref.
Sarfaraz Khan Tanoli and Mahmood A. Qureshi for Appellants.
Syed Jalil Ahmed Hashmi, Asstt. A.‑G., Sindh for the State.
Date of hearing: 7th September, 1999.
2000 M L D 1384
[Karachi]
Before Rasheed Ahmed Razvi, J
NAYA DAUR MOTORS (PVT.) LTD. ‑‑‑Plaintiff
Versus
FEDERAL INVESTIGATION AGENCY, C.B.C., KARACHI and another‑‑‑Defendants
Suit No. 1320 and Civil Miscellaneous Application No.7469 of 1996, decided on 9th December, 1999.
(a) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)‑‑‑
‑‑‑‑S.7‑‑‑Transfer or creation of charge on property owned by accused‑‑Cognizance of cases by Special Court‑‑‑Provisions of S.7 of Offences in Respect of Banks (Special Courts) Ordinance, 1984, had prohibited transfer or creation of a charge on any movable or immovable property owned by an accused or his relative without prior approval of the Special Court‑‑‑Once Court had taken cognizance of a scheduled offence, any such transaction without prior permission of Special Court would be treated to be void.
(b) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S. 55‑‑‑Civil Procedure Code (V of 1908), Ss. 94 & 151‑‑‑Mandatory injunction, grant of‑‑‑Discretion to grant mandatory injunction under S.55 of Specific Relief Act, 1877 read with Ss. 94 & 151, C.P.C. was to be exercised by Court rarely and in exceptional cases.
The Lahore Race Club v. The State and another PLD 1968 Lah. 185; Muhammad Yousaf v. Muhammad Iqbal and 3 others PLD 1979 Kar. 430; Naya Daur Motors (Pvt.) v. Pakistan Banking Council and 7 others PLD 1997 Kar. 208; Central Cooperative Bank Ltd., Sargodha v. Ahmad Bakhsh PLD 1970 SC 343; M. Salim Khan v. The State and 3 others 1991 PCr.LJ 285; Arbab Khan v. The State 1990 PCr.LJ 649; Rana Muhammad Salim v. The State 1992 PCr.LJ 750; Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599 and Khan Muhammad Niazi v. Habib Bank Ltd. and 3 others 1997 MLD 1304 ref.
(c) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)‑‑‑
‑‑‑‑Ss. 7 & 9‑‑‑Criminal Procedure Code (V of 1898), S. 516‑A‑‑‑Return of movable property by accused‑‑‑Jurisdiction of Special Court‑‑‑Criteria of deciding an application under S. 516‑A, Cr.P.C. by an ordinary Criminal Court would not apply before Special Court, which, while deciding application under said section, would be competent to look into provisions of Ss. 7 & 9 of Offences in Respect of Banks (Special Courts) Ordinance, 1984 and thereafter to pass appropriate order.
Mansoorul Arfin for Plaintiff.
Chowdhry Muhammad Iqbal, Standing Counsel for Defendant.
2000 M L D 1431
[Karachi]
Before Anwar Zaheer Jamali, J
ALI NAWAZ and 4 others‑‑‑Appellants
Versus
Mst. ZAINAB and another‑‑‑Respondents
Second Appeal No.3 of 1997, decided on 1st February, 2000.
(a) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S. 100‑‑‑Second appeal‑‑‑Execution of gift deed‑‑‑Raising of new plea‑‑Dispute was raised as to the existence or genuineness of documents produced by respondents‑‑‑Such technical plea was raised for the first time at the stage of second appeal‑‑‑Validity‑‑‑No such dispute was raised by the appellants throughout the proceedings of the suit‑‑‑Lower Appellate Court was justified and had committed no illegality in taking into consideration the documents for deciding the crucial point of gift against the appellants‑‑‑Appellants, at the stage of second appeal were precluded from raising, such technical plea for the first time.
(b) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S. 100‑‑‑Second appeal‑‑‑Execution of gift deed‑‑‑Validity‑‑‑Judgment of both the Courts below were at variance‑‑‑Effect‑‑‑Lower Appellate Court had thoroughly examined respective case of the parties with reference to their pleadings, evidence led by them in the suit and the relevant provisions of law‑‑‑Reasons assigned in the judgment of Lower Appellate Court for setting aside the findings of the Trial Court were based on proper appreciation of evidence‑‑‑Judgment of Lower Appellate Court did not suffer from any misreading of evidence or any, other legal infirmity‑‑‑Second appeal was dismissed accordingly.
Binyameen and 3 others v. Choudhry Hakim and another 1996 SCMR 336; T. Motandas through Legal Heirs v. Anis Ahmad PLD 1987 Kar. 159; Muhammad Siddique and 8 others v. Wazir Hussain 1985 CLC 1091; Zakaullah Khan v. Muhammad Aslam and another 1991 SCMR 2126; Mst. Zainab Bibi and others v. Mst. Bilqis Bibi and others PLD.1981 SC 56; Allah Din v. Habib PLD 1982 SC 465 and Sughran Bibi v. Mst. Aziz Begum and 4 others 1996 SCMR 137 distinguished.
Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Mst. Khurshid Begum and 6 others v. Chiragh Muhammad 1995 SCMR 1237; Muhammad Yakoob and others v. Naseer Hussain and others PLD 1995 Lah. 395; Mst. Shah Begum and 3 others v. Sughran Begum 1996 CLC 1959 and Ghulam Hussain and others v. Sarfaraz Khan and others PLD 1956 SC 309 ref.
(c) Mesne profits‑‑‑
‑‑‑‑ Share in suit land was denied on the basis of gift‑deed‑‑‑Gift‑deed in question was declared as illegal and void‑‑‑Effect‑‑‑Party relying on the gift deed was liable to account for the share of income of the other party for a period of three years prior to filing of the suit.
Hassan Mehmood Baig for Appellants.
Jhamat Jethanand for Respondents.
Dates of hearing: 12th, 19th, 26th November and 3rd December, 1999.
2000 M L D 1454
[Karachi]
Before Rasheed Ahmed Razvi, J
SHAHANSHAH HUSSAIN ‑‑‑Plaintiff
Versus
Messrs THAI AIRWAYS INTERNATIONAL LIMITED‑‑‑Defendant
Suit No. 1011 of 1989, decided on 1st December, 1999.
(a) Words and phrases----
‑‑‑‑"Extinguished"‑‑‑Meaning stated.
Black's Law Dictionary; Legal Thesaurus by William C. Burton and Barlow v. Ross 24 QBD 381 ref.
(b) Words and phrases‑‑‑
‑‑‑‑ Expression "Extinguishments of any rights therein" ‑‑‑Defined and elaborated.
Vania Silk Mills (P) Ltd. v. Commissioner of Income‑tax AIR 1991 SC 2104 ref.
(c) Limitation Act (IX of 1908)‑‑‑
‑‑‑‑Preamble‑‑‑Limitation Act, 1908, only extinguishes the remedy and not the right.
(d) Carriage by Air (International Convention) Act (IX of 1966)‑‑‑
‑‑‑‑Sched. I, R.29‑‑‑Demages‑‑‑Limitation, period of‑‑‑Defendant/carrier failed to make the plaintiff/passenger reach his destination in time‑‑‑Suit for damages was filed beyond a period of two years from accrual of cause of action‑‑‑Validity‑‑‑Period of limitation for such suit was two years under the provisions of R.29 of Sched. I of Carriage by Air (International Convention) Act, 1966‑‑‑Suit being time‑barred, plaint was rejected.
Pakistan International Airlines Corporation, Karachi v. Shaikh Muhammad Younus PLD 1976 Kar. 184; Kuwait Airways Corporation v. Union Surgical Company 1986 SCMR 890; East and West Steamship Co. George Town, Madras v. S.K. Ramalinegam Chettiar AIR 1960 SC 1058; V.P.R.V. Chockalingam Chetty v. Seethai Ache and others AIR 1927 PC 252; Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others PLD 1967 Dacca 190 and National Fibres Ltd. v. K.D.A. and another 1996 MLD 76‑ ref.
S.M. Alain for Plaintiff.
Khalid Anisur Rehman for Defendant.
2000 M L D 1466
[Karachi]
Before Muhammad Ashraf Leghari, J
Mrs. SHAMIM BANO‑‑‑Appellant
Versus
SHAIKH ABID & CO. ‑‑‑Respondent
First Rent Appeal No. 219 of 2000, decided on 26th April, 2000.
(a) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑
‑‑‑‑Ss. 15 & 21‑‑‑Appeal, time‑barred‑‑‑Wilful default in monthly rent‑‑Application against dead man‑‑‑Maintainability‑‑‑Landlord did not know that the tenant was dead and when he came to know about the fact, he impleaded his legal heirs as party to the application‑‑‑Legal heirs were in the knowledge of the proceedings as they were party in the case and were contesting the matter‑‑‑Where the legal heirs filed their written statement and did not plead before the Rent Controller that the ejectment application was not maintainable as the same was filed against a dead person. such plea could not be raised at the appeal stage‑‑‑Rent Controller was competent to pass ejectment order and the same was perfectly legal and valid‑‑‑Appeal was dismissed as time‑barred in limine.
Syed Mehmud Alain v. Syed Mehdi Hussain and 2 others PLD 1970 Lah. 6; Syed Nazir Hussain v. Settlement Commissioner, Lyallpur and another PLD 1974 Lah. 434; Jamal Shah v. Azad Government of State of Jammu and Kashmir through Chief Secretary and 7 others 1991 MLD 1243 Muhammad Gul Kakar v. Province of Balochistan 1986 PLC (C.S.) 560 and Municipal Corporation of Karachi v. Baradio Jamoo Mughal AIR 1946 Sindh 20 distinguished.
(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑
‑‑‑‑S. 21‑‑‑Limitation Act (IX of 1908), S. 5‑‑‑Appeal‑‑‑Limitation‑‑Provisions of S. 5 of Limitation Act, 1908‑‑‑Applicability‑‑‑Period of 30 days for tiling an appeal is provided under S. 21 of Sindh Rented Premises Ordinance, 1979, which is a special law‑‑‑Provisions of S.5 of Limitation Act, 1908, are not applicable for condonation of delay in such proceedings.
Abdul Ghaffar and others v. Mumtaz PLD 1982 SC 88 and Syed Muhammad v. Mazhar Ali Khan PLD 1981 Kar. 76 ref.
(c) Limitation‑
‑‑‑‑ Delay, condonation of‑‑‑Where no sufficient cause had been shown to condone delay of six months in filing of appeal, such delay would create a substantive right in favour of other side.
Abdul Ghaffar and others v. Mumtaz PLD 1982 SC 88 and Syed Muhammad v. Mazhar Ali Khan PLD 1981 Kar. 76 ref.
Rao M. Shakir Naqshbandi for Appellant.
Riazuddin for Respondent..
Date of hearing: 18th April, 2000.
2000 M L D 1470
[Karachi]
Before Rana Bhagwan Das and. Sabihuddin Ahmed, JJ
Syed ABDUL MAJEED‑‑‑Petitioner
Versus
SECRETARY, MINISTRY OF RELIGIOUS AFFAIRS AND MINORITIES, GOVERNMENT OF PAKISTAN, ISLAMABAD and 2 others‑‑‑Respondents
Constitutional Petition No.D‑61 of 1995, decided on 13th April, 1999.
(a) Provisional Constitution Order (I of 1981)‑‑‑
‑‑‑‑Art. 15‑‑‑Examining legality of orders passed under Martial Law Regulations‑‑‑Jurisdiction of High Court‑‑‑Jurisdiction. of High Court was barred under Art. 15, Provisional Constitution Order, 1981 to examine legality of such orders‑‑‑Court, however, could see if the order strictly fell within the four corners of Martial Law Regulations in view of the law declared by Supreme Court to Ghulam Mustafa Khar's case (PLD 1989 SC 26).
Ghulam Mustafa Khar v. Federation of Pakistan PLD 1989 SC 26 rel.
(b) Martial Law Regulation [C.M.A.L.A.'s], 1983‑‑‑
‑‑‑‑Regin. 57‑‑‑Cancelling acquisition or rejecting person in possession of land vested in Evacuee Trust Property Board‑‑‑Exercise of power‑under Martial Law Regulation 57 of 1983‑‑‑Preconditions enumerated.
Three preconditions for exercise of power under M.L.R. 57 were required:‑
(i) The land should be agricultural land specified in the Schedule to the Regulations.
(ii) It should have belonged to defunct evacuee trust as specified and should now be vesting in the Board.
(iii) It should have been acquired, entered upon or taken possession of by any person illegally or by fraud, misrepresentation or otherwise.
If an order of canceling such acquisition or ejecting the person in possession is passed in respect of any land fulfilling the above conditions it would be within the scope of the powers conferred by, M.L.R. 57 and immune from being challenged in Court. On the other hand when an order is passed in relation to land which does not fulfill the aforesaid preconditions the same would be beyond the jurisdiction conferred by M.L.R. 57 and no ouster of jurisdiction of High Court could be claimed on the principles laid down in Khar's case (PLD 1989 SC 26). The crucial question to determine, therefore, would be whether these conditions were fulfilled in the case.
Ghulam Mustafa Khar v. Federation of Pakistan PLD 1989 SC 26 ref.
(c) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)‑‑‑
‑‑‑‑Ss. 10 & 32‑‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), S. 2(3)‑‑‑Martial Law Regulation 1983, Regulation No.57‑‑‑Civil Procedure Code (V of 1908), S. 12 (2)‑‑‑Canceling acquisition or ejecting person in possession of land vested in Evacuee Trust Properties Board‑‑‑Disputed property was purchased in open auction and subsequently purchased by the petitioner‑‑ ‑Status of the property was disputed, as according to the respondent the same was agricultural land and was subject to the provisions of Martial Law Regulation 57 of 1983‑‑‑Validity‑‑‑Documents and material on record showed no declaration of Chief Settlement Commissioner or any competent Settlement Authority to the effect that the property in question was trust property‑‑‑Material on record showed that the property was purchased on 4‑4‑1961 in open auction, the auction was approved by Settlement Commissioner on 15‑4‑1961 and the price was adjusted against claim book of the auction‑purchaser as well as the settlement fee on 27‑3‑1962‑‑‑Where no material had been brought on record to rebut such facts, it could not be urged that the allotment was not made against the satisfaction of a verified claim prior to June, 1964‑‑‑Notification dated 18‑3‑1966 declaring the property in dispute under S. 2(3) of Displaced Persons (Land Settlement) Act, 1958 as building site was issued by Chief Settlement Commissioner and the notification enjoyed protection of S.32 of Evacuee Trust Properties (Management and Disposal) Act, 1975‑‑Application of the respondent under S. 12(2), C.P.C. was without substance and the same was dismissed accordingly.
(d) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)--
‑‑‑‑S. 10‑‑‑Validation of transfer of immovable evacuee trust property‑‑Object‑‑‑Provisions of S. 10 of Evacuee Trust Properties (Management and Disposal) Act, 1975, were enacted with the object to protect erroneous transfers made by Settlement Authorities provided the same were bona fide.
(e) Martial Law Regulation (C.M.A.L.A.'s 1983]‑‑‑
‑‑‑‑Regln. 57, para. 1‑‑‑Expression "otherwise" as used in Martial Law Regulation 57, para. 1‑‑‑Meaning and applicability‑‑‑Expression "otherwise" is ejusdem generis with illegality‑‑‑Expression has been explained as transfer obtained by using official position, political influence or in violation of or illegal relaxation of any law, rule, regulations, conditions or policy.
Ali Ahmad Patolli for Petitioner.
Nemo for Respondent No. 1.
M.G. Dastgir for Respondents Nos.2 and 3.
Date of hearing: 24th November, 1998.
2000 M L D 1487
[Karachi]
Before Rasheed Ahmad Razvi, J
BABAR MASIH‑‑‑Applicant
Versus
THE STATE‑‑‑Respondent
Criminal Bail Application No. 1366 of 1998, decided on 18th January, 1999.
(a) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 307, 34 & 107‑‑‑Bail, grant of‑‑‑Allegation against accused was that while injured who was nephew of complainant was sitting alongwith complainant at the shop of complainant accused alongwith co‑accused, who was armed with a gun, came there and accused pointing towards injured asked his co‑accused that he was the person with whom accused had a quarrel earlier‑‑‑Accused asked co‑accused pointing towards injured to kill him and upon said instigation of accused his co‑accused fired and injured nephew of complainant and two other persons standing near the shop of complainant‑‑Such role of accused was not simply a "Lalkara" but words uttered by him amounted to provocation which had brought his case within scope of abetment as defined under S.107, P.P.C. and common intention as defined under S. 34, P.P.C.‑‑‑Accused in circumstances was not entitled to grant of bail as a matter of right on ground of 'Lalkara" as there was conspiracy between the accused and co‑accused prior to commission of alleged offence‑‑‑Accused, in circumstances, was not entitled to bail.
Muhammad Anwar and another v. The State 1989 PCr.LJ 1554; Muhammad Hayat v. The State 1989 PCr.LJ 490; Amanat Ali v. The State 1993 SCMR 1992; Muhammad Din v. The State 1994 PCr.LJ 1081; Akbar Ali and others v. The State 1994 MLD 1291; Muhammad Din v. The State 1994 MLD 1296; Rafi Khan v. The State 1995 SCMR 343; Abdul Aziz v. Bashir Ahmed and another PLD 1966 SC 653; Khan Badshah v. The State 1978 SCMR 77 and Chirag Din and another v. The State PLD 1967 SC 340 ref.
(b) Words and phrases‑‑‑
‑‑‑‑"Provocation"‑‑‑Definition and scope‑‑‑Act of provocation was an act of instigating to do a particular deed with intention to cause some illegal act against or in relation to person offering such provocation
S; Waqar Hussain Naqvi for Applicant.
Ismail Memon for the State.
Date of hearing: 18th January, 1999.
2000 M L D 1491
[Karachi]
Before: Muhammad Ashraf Leghari, J
MUHAMMAD ALLAM alias ALMOON‑‑‑Applicant
Versus
THE STATE‑‑‑Respondent
Criminal Bail Application No. 28 of 2000, decided on 21st February, 2000.
Criminal Procedure Code (V of 1898)‑--
‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S. 302/148/149‑‑‑Bail, grant of‑‑Co‑accused who were nominated in F.I.R. had been granted bail, but accused who did not figure in the F.I.R., was not granted bail‑‑‑No active role was ascribed to accused in identification parade‑‑‑Case of complainant was not that a torch was recovered from the accused by which he facilitated co‑accused in commission of offence, but his case was that electric bulbs were shining in the light of which culprits were identified ‑‑Introduction of torch, had made case against accused more doubtful‑‑Accused was entitled to grant of bail on principle of consistency in circumstances.
Manzoor Ahmed Lashari for Applicant.
Altaf Hussain Surahio for the State.
Date of hearing: 21st February, 2000.
2000 M L D 1535
[Karachi]
Before Muhammad Roshan Essani, J
ABDUL GHANI‑‑‑Applicant
Versus
THE STATE‑‑‑Respondent
Criminal Revision Application No. 110 of 1999, decided on 22nd November, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.514‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1079), Art.3/4‑‑Penalty of forfeiture of bond‑‑‑Court, in cases of penalty of forfeiture of bond had to see whether any comity of interest existed between surety and absconding accused and balance had to be kept between undue leniency and undue severity considering the facts and circumstances of each case‑‑‑Surety in the case was real brother of absconding accused who did not stand surety for any monetary gain, but out of blood relationship, benevolence and sympathy‑‑‑Accused remained absent for seven to eight months from Trial Court‑‑‑Order of forfeiture of bond was maintained, but in view of peculiar circumstances of case, penalty was reduced substantially.
Naeem Akhtar Khan Tanoli for Applicant.
Saad Qureshi on behalf of A.‑G. Sindh for the State.
2000 M L D 1542
[Karachi]
Before Muhammad Ashraf Leghari, J
ANWAR ‑‑‑Applicant
Versus
THE STATE‑‑‑Respondent
Criminal Bail Application No.91 of 2000, decided on 24th March, 2000.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.324 & 452‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S‑17(3) ‑‑‑ Bail, grant of ‑‑‑F.I.R. was promptly recorded within 65 minutes wherein names of accused were not mentioned‑‑‑Arrest of accused was taken place after one and half months of occurrence and accused was picked up by complainant and two injured witnesses‑‑‑Complainant and injured had no enmity with accused and no reason to implicate accused in false case‑‑‑Robbed property which was specifically mentioned in F.I.R. had been recovered from accused‑‑‑Specific role had been assigned to accused in identification memo.‑‑‑Offence against accused was covered by prohibitory clause of S.497, Cr.P.C.‑‑‑In absence of any reasonable grounds to believe that accused was not guilty of offence with which he was charged bail was declined to accused.
Ghulam Muhammad Mughal for Applicant.
Muhammad Azeem Panhwar for the State.
2000 M L D 1561
[Karachi]
Before Ghulam Nabi Soomro, J
ZAMEER alias SHABEER‑‑‑Appellant
Versus
THE STATE‑‑‑Respondent
Criminal Appeal No.S‑32 of 1998, decided on 23rd February, 2000
(a) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)‑‑‑
‑‑‑‑S.24(1)(3)‑‑‑Appreciation of evidence‑‑‑Complainant who was not examined and two other prosecution witnesses who were declared hostile, though had not supported prosecution, but remaining witnesses who were almost equal in number had supported case of prosecution‑‑‑Prosecution witnesses who supported case of prosecution were forming a patrolling party and happened to reach the place of occurrence and secured. custody of accused‑‑‑Said prosecution witnesses, one of whom was a Police Constable, had not been cross‑examined at all despite opportunity to cross‑Examine was afforded to accused‑‑‑Evidence of Police Official would not be less important than any other prosecution witness‑‑‑Nothing was available on record to label said prosecution witnesses as interested, unreliable or untrustworthy‑‑‑Order convicting and sentencing accused based on evidence on record could not be interfered with but as accused had suffered as an undertrial prisoner and during pendency of .appeal, imprisonment of two years and benefit of S.382‑B, Cr.P.C. having also .not been given to accused, conviction of accused was maintained, but sentence of accused was reduced to one which he had already undergone.
Allah Bakhsh v. Shammi and others PLD 1980 SC 225; Ali Ahmed alias Ali Ahmed Mian v. State PLD 1962 SC 102; Mali v. State 1969 SCMR 76 and Abdul Majid v. State PLD 1959 SC (Pak.) 486 ref.
(b) Criminal trial‑‑‑
‑‑‑‑ Evidence of Police Officer‑‑‑Value‑‑‑Evidence of Police Officer would not be less important than any other prosecution witness in a criminal case unless it was shown that said Police Officer was not disinterested witness.
Muhammad Afzal Soomro for Appellant.
Ali Azhar Tunio, Asstt. A.‑G. for the State
Date of hearing: 23rd February, 2000.
2000 M L D 1572
[Karachi]
Before Muhammad Ashraf Leghari, J
WAJID ALI ‑‑‑Applicant/Accused
Versus
THE STATE‑‑‑Respondent
Criminal Bail Application No.S‑72 of 2000, decided on 2nd March, 2000.
Criminal Procedure Code (V of 1898)‑‑‑‑
‑‑‑‑S. 497‑‑Penal Code (XLV of 1860), S.409/477‑A/34‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Bail, grant of‑‑‑Case against accused was that about 3000 wheat bags were fund missing at Wheat Procurement Centre and amount of said whew was misappropriated by accused‑‑Evidence on record had proved that accused remained posted at relevant Wheat Procurement Centre for three months and total bags of wheat missing during his term were 79 bags and accused deposited amount of said missing bags‑‑‑Involvement of accused in commission of offence was yet to be established by prosecution by production of evidence‑‑‑Documents and relevant record was already with police, challan had been submitted in the Court and accused was no more required by police‑‑‑Case of accused was distinguishable and on different footing from the co‑accused‑‑‑Accused being a public servant was not likely to abscond and in absence of reasonable grounds to believe that accused had been guilty of offence with which he was charged, bail was granted to him.
Shamraiz Khan v. State 2000 SCMR 157; Saeed Ahmed v. State 1995 SCMR 170; Hussain Haqani v. State 2000 PCr.LJ 161; Raza
Muhammad Sial v. State 1988 SCMR 1223 and Mir Akhtar Khan Khattak v. State PLD 1982 Pesh. 128 ref.
Muhammad Ayaz Soomro for Applicant.
Altaf Husain Surahio for the State.
2000 M L D 1576
[Karachi]
Before Sabihuddin Ahmed and Ghulam Rabbani, JJ
Agha FAQIR MUHAMMAD ‑‑‑Petitioner
Versus
FEDERAL GOVERNMENT OF PAKISTAN and another‑‑‑Respondents
Constitutional Petition No.D‑950 of 1998, heard on 9th December, 1999.
(a) Foreign Exchange (Temporary Restrictions) Ordinance (VII of 1998)‑‑‑
‑‑‑‑S.3‑‑‑Omission in official Gazette‑‑Principle of "casus omissus"‑‑Applicability‑‑‑Figure 3 did not appear in the official Gazette for S.3 of Foreign Exchange (Temporary Restrictions) Ordinance, 1998‑‑‑Effect‑‑Held, it was one of those cases where casus omissus ought to be provided by the Court and figure 3 should be read accordingly.
(b) Foreign Exchange (Temporary Restrictions) Ordinance (VII of 1998)‑‑‑
‑‑‑‑Ss. 2 & 3‑‑‑Foreign Exchange Regulation Act (VII of 1947) S.8‑‑Constitution of Pakistan (1973). Art.199‑‑‑Constitutional petition‑‑Authority of State Bank to issue circular permitting remittance ‑‑‑Scope‑‑Restrictions imposed by S.2 of Foreign Exchange (Temporary Restrictions) Ordinance, 1998 were subject to the exception provided for in S.3 of Foreign Exchange (Temporary Restrictions) Ordinance, 1998‑‑‑Where no rule had been framed, withdrawals and remittances could be made with the permission of State Bank‑‑‑Matter having already been decided by Supreme Court in case of Federation of Pakistan v. Shaukat Ali Mian (PLD 1999 SC 1026), petition was disposed of accordingly.
Federation of Pakistan v. Shaukat Ali Mian PLD 1999 SC 1026 rel.
(c) Protection of Economic Reforms Act (XII of 1992)‑‑‑
‑‑‑‑S.4‑‑‑Taking foreign exchange out of Pakistan‑‑‑Provisions of S.4 of Protection of Economic Reforms Act, 1992, conferred unfattered right upon all citizens of Pakistan residing in or outside Pakistan to take out foreign exchange out of Pakistan in any form.
(d) Foreign Exchange (Temporary Restrictions) Ordinance (VII of 1998)‑‑‑
‑‑‑‑Ss. 2 & 3‑‑‑Restriction on foreign exchange‑ ‑‑Restriction under S.2 of Foreign Exchange (Temporary Restrictions) Ordinance, 1998 was not absolute but subject to qualification laid down in S.3(2) of Foreign Exchange (Temporary Restrictions) Ordinance, 1998.
Petitioner in person.
Ch. Muhammad Iqbal, Standing Counsel for Respondent No. l
Kazim Hassan for Respondent No.2.
Date of hearing: 9th December, 1999.
2000 M L D 1595
[Karachi]
Before Muhammad Roshan Essani, J
THARO‑‑‑Appellant
Versus
THE STATE‑‑‑Respondent
Criminal Appeal No.68 of 1998, decided on 7th January, 2000.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Night of incident was dark‑‑Identification of assailants was made in the light of torch‑‑‑Names and description of eminent features of accused person not given in the F.I.R.‑‑Source of identification was a torch light, but torch with the help of which assailants were seen, was neither produced before Police nor was it secured by police from eye‑witness who allegedly was carrying same at the time of incident‑‑‑Identification test was not held separately in respect of accused and other two co‑accused, but it was a general identification parade wherein apart from accused two acquitted co‑accused were also made to be present‑‑‑Ratio of dummies was only five to three accused, whereas identification test of each accused had to be held separately and ratio of dummies was to be 8 to 10 (dummies) to one accused‑‑‑Absence of names and eminent description regarding features of accused and his acquitted companions and in view of joint identification test and lack of proper ratio of dummies and delay of five days in holding identification test, no reliance could be placed on such evidence‑‑‑Recovery of gun from accused could not be relied upon as no empties were recovered from scene of offence and eleven days' delay occurred in recovery of said gun and in sending gun and empties to Ballistic Expert‑‑‑Medical evidence did not afford corroboration to ocular testimony qua accused‑‑‑State Counsel also did not support judgment of Trial Court conceding that it was a case of benefit of doubt‑‑‑Prosecution having failed to establish case against accused beyond reasonable doubt, conviction and sentence awarded to him by Trial Court, were set aside and accused was acquitted of the charge.
Lal Pasand's case PLD 1982 SC 142; PLD 1988 Kar. 521; PLD 1991 SC 447 and 1995 SCMR 1293 ref.
A.Q. Halepota for Appellant.
Muhammad Saleh Panhwar for the State.
Dates of hearing: 22nd March and 2nd April, 1999.
2000 M L D 1608
[Karachi]
Before Saiyed Saeed Ashhad, J
ABDULLAH alias MANAN---Applicant
Versus
THE STATE---Respondent
Criminal Bail Application No. 1386 of 1999, decided on 14th March, 2000.
Criminal Procedure Code (V of 1898)----
----S.497---Penal Code (XLV of 1860), S.396/34---Bail, grant of---Accused was arrested after about two months of the incident, but he was not put to identification test by complainant and prosecution witnesses, who were allegedly tied by accused and in whose presence robbery of huge amount was committed by the accused---Identification of accused would have been a very important circumstance for prosecution for connecting accused with offence---Currency notes allegedly recovered from accused did not bear any specific marks or identification to establish that those were same notes which were robbed from the house of complainant---More than one year had passed since challan was submitted, but case had not yet been completed and it was also not known as to how much further time would be consumed for completing trial of accused-- -Prosecution was not in possession of any such reliable evidence on basis of which it could be said that accused prima facie stood connected with offence of dacoity and matter required further inquiry---Prosecution being not in a position to establish by satisfactory evidence involvement of accused in the case, he could not be held as dangerous, desperate and hardened criminal---Accused, in circumstances, was entitled to be enlarged on bail.
Shahadat Awan for Applicant.
Ismail Memon for the State.
2000 M L D 1660
[Karachi]
Before, Dr. Ghous Muhammad and Abdul Hameed Dogar, JJ
SHAHEEN CONSTRUCTION CO. through Managing Partner/ Attorney‑‑‑Appellant
Versus
PROVINCE OF SINDH through Chief Secretary and 5 others‑‑‑Respondents
Constitutional Petition No.D‑1120 of 1999, decided on 21st September, 1999.
(a) Sindh Buildings Control Ordinance (V of 1979)‑‑‑
‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Non‑issuance of final approved plan for construction‑‑‑Role of Board of Revenue in approval of such plan‑‑‑Requirement of subsequent or second permission from Board of Revenue‑‑‑Validity‑‑‑Only the Karachi Buildings Control Authority and not the Board of Revenue was Competent Authority to approve plan for construction under Sindh Buildings Control Ordinance, 1979‑‑‑Where the land was leased out to the petitioner by Board of Revenue, Board was only competent to check ownership and title of land and secrutinize as to whether any lease conditions had been violated or not‑‑Once the Board of Revenue being lessor had forwarded construction plan to the Authority, the Board had necessarily checked the ownership/title of the land and also had confirmed the compliance of lease terms and conditions‑‑‑Where the plans were forwarded, accordingly, the requirement to obtain permission of the Board of Revenue was satisfied‑‑‑Any further condition to get a subsequent or second permission from the Board of Revenue would be totally redundant, unjustified and would unnecessarily subject the citizen to further red‑tapism‑‑‑Sindh Buildings Control Ordinance; 1979 contains no such provision so as to justify the imposition of such a condition whereby a second time approval from the lessor was required‑‑‑Any condition laid down by the Authority to obtain any further permission from the Board of Revenue was without jurisdiction and unlawful‑‑‑Authority was directed to issue the approved plan without any further delay.
(b) Discretion‑‑‑
‑‑‑‑ Exercise of discretion by Executive Functionaries‑‑‑Principles.
Following are the principles for exercise of discretion by Executive Functionary:‑‑
(i) All discretionary powers vested in an Executive Functionary are to be exercised reasonably, justly, fairly and not arbitrarily, unreasonably and in a manner completely extraneous to law and statute;
(ii) the failure of a statutory functionary to accord approval and a no objection certificate, once the citizen complies with all the formalities and requirements of law, is mala fide and violates the settled law pertaining to structuring the discretion;
(iii) once there is more than one possible manner to take an action, in exercise of lawful discretion would mean that the particular permissible option is exercised which is in the best interest of the citizen who is seeking the State Functionary to exercise the discretion.
Amanullah Khan v. Federal Government of Pakistan PLD 1990 SC 1092; Chairman, R.T.A. v. Pak. Mutual Insurance Co. PLD 1991 SC 141 and Federation of Pakistan v. Ibrahim Textile Mills Ltd. 1992 SCMR 1898 ref.
(c) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Arts. 25 & 199‑‑‑Sindh Buildings Control Ordinance (V of 1979), S.4‑‑Discrimination‑‑‑Where final approval of construction plan was not given to the petitioner while in similar situations, a number of other persons had been granted, such failure was discriminatory and was in complete violation of Art.25 of the Constitution.
Dr. Muhammad Farogh Naseem for Petitioner.
Raja Sikandar Khan for Respondents.
Iqbal Raad, A.‑G. (on Court's Notice) and also for Respondents Nos. 1, 2, 3, 5 and 6.
Date of hearing; 26th July, 1999.
2000 M L D 1697
[Karachi]
Before Abdul Hameed Dogar and Muhammad Ashraf Leghari, JJ
MUHAMMAD YOUSUF---Applicant
Versus
THE STATE---Respondent
Criminal Bail Application No. 1435 of 1999, decided on 4th February, 2000.
Criminal Procedure Code (V of 1898)---
---Ss. 497, 87 & 88---Penal Code (XLV of 1860), S.302/324/353/147/148--Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, grant of---Rule of consistency ---Co-accused on same allegation had been granted bail---Case of accused being on identical footing of co-accused, accused was entitled to the right of bail on rule of consistency---Accused was never declared absconder by Trial Court and order of Trial Court refusing bail to accused did not show that proceedings under Ss.87 & 88, Cr.P.C. were initiated against him---Accused was put to identification test after about fifteen months from his arrest without furnishing any explanation for said delay which had made case of accused of further enquiry---Bail was granted to accused, in circumstances.
1989 SCMR 1987 ref.
Mahmood A. Qureshi for Applicant.
Syed Jalil A. Hashmi, Asstt. A.-G. for the State,
2000 M L D 1825
[Karachi]
Before Rasheed Ahmed Razvi, J
FAZAL HUSSAIN ‑‑‑Appellant
versus
MAHMOOD HUSSAIN ‑‑‑Respondent
First Rent Appeal No., 101 of 1997, decided on 14th January, 2000.
(a) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S.11‑‑‑Res judicata, principle of‑‑‑Party pleading res judicata was required to show that issues involved in subsequent proceedings were common between the same parties in earlier round of litigation which had attained finality before a competent Court.
Pakistan National Shipping Corporation v. Messrs General Service Corporation 1992 SCMR 871; Mst. Jehan Ara v. Tayyaba Khatoon 1996 CLC 377; Qaimuddin v. Ghulam Shah 1993 CLC 336; Muhammad Raghib v. Abdul Razzak PLD 1994 Kar. 20; Ghulam Samdani v. Abdul Hameed 1992 SCMR 1170; Maj. (Retd.) Muhammad Yousaf v. Mehraj‑ud‑Din and another 1988 SCMR 751; 1992 SCMR 871 and Sabu Mal v. Kika Rain alias Heman Das 1973 SCMR 185 ref.
(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑
‑‑‑‑Ss. 15(2)(ii) & 18‑‑‑Default in payment of rent‑‑‑Notice or change of ownership of premises not given‑‑‑Effect‑‑‑Tenant despite having knowledge about change of ownership of premises from original owner to landlord during previous litigation continued to deposit rent fn the name of previous landlord instead of tendering rent to landlord who had purchased the premises in question from original owner‑‑‑Tenant, who had failed to tender rent to landlord was rightly found having committed default in payment of rent.
Pakistan National Shipping Corporation v. General Service Corporation 1992 SCMR 871: Abdul Kadir and another v. Muhammad Yaqoob 1991 SCMR 1029: Haji Usman Bhai v. Syed Ali Imam Zaidi and 2 others 1994 SCMR 1918; Karamat Hussain v. Kazi Ali Muhammad 1996 SCMR 441; Moizur Rehman v. Mrs. Fakhra Javed PLD 1991 Kar. 452 and Mohiuddin Ansari v. Muhammad Arif Siddiqui 1991 CLC 72 ref.
S. Maqsum Rizvi for Appellant.
Z.U. Ahmed and Waqar Muhammad Khan Lodhi for Respondent.
Date of hearing: 14th January, 2000.
2000 M L D 2032
[Karachi]
,Before Ghulam Nabi Soomro, J
MUHAMMAD IMRAN‑‑‑Appellant
versus
MUSTAFA HUMAYUN‑‑‑Respondent
First Rent Appeal No.391 of 1998, decided on 24th May, 2000.
Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑
‑‑‑‑Ss. 2(f)(j) & 14‑‑‑Bona fide personal need of landlord on ground of his retirement‑‑‑Landlord and tenant, relationship of ‑‑‑Lanldord who needed shop for his own use to run his own business therein due to his retirement from service, served legal notice upon the tenant under S.14 of Sindh Rented Premises Ordinance, 1979‑‑‑Notice having remained unresponded, landlord filed ejectment application‑‑‑Tenant, who had admitted his initial status as tenant, had claimed that shop in question had been purchased by him through sale agreement from landlord and that suit for specific performance had been filed by him in the High Court which was pending adjudication ‑‑‑Validity‑‑ Suit by tenant was a counterblast to the application filed by landlord and tenant wonted to hinder the ejectment proceedings by filing said suit‑‑‑Even otherwise agreement of sale simpliciter would not create a title the same was an initial document and it would be completed in legal perspective when sale deed to that effect was executed‑‑‑Legality could not be attached to said transaction to hold that mere agreement would confer title and thereby all proceedings before legal forums should be handicapped‑‑‑Rent‑Controller, in circumstances, was not justified to decline ejectment of tenant on ground of bona fide use of premises by landlord on retirement, simply on ground of pending suit of tenant in High Court filed by him on basis of alleged agreement of sale of premises in question‑‑‑Bona fide use of premises by landlord being in wake of his retirement, was a substantial ground of ejectment of tenant which was to be dealt with and decided‑ separately. without reference. of decision on issue of relationship of parties‑‑‑Reference of only agreement of sale which otherwise had not been established was not to be given so much credence as to render whole proceedings, which were mainly concluded, as vitiated‑‑‑Rent Controller ought to have looked into legality and propriety of said agreement of sale, before non‑suiting the landlord.
1983 SCMR 1064; PLD 1991 SC 242; 1986 MLD 1986 and 1990 CLC 584 ref.
K.B. Bhutto for Appellant.
Syed Zaki Muhammad for Respondent.
Date of hearing: 27th March, 2000.
2000 M L D 2054
[Karachi]
Before Muhammad Ashraf Leghari, J
IMAM DIN‑‑‑Appellant
versus
Haji ABDUL KARIM and others‑‑‑Respondents
First Rent Appeal No. 554 of 1999, decided on 1st May, 2000
(a) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑
‑‑‑‑S. 15(2)(ii)‑‑‑Default in payment of rent‑‑‑Tenant had already committed default in payment of rent of premises in question as he had deposited rent for months of June, July and August on 16th of August in miscellaneous case‑‑‑Tenant, in circumstances, had rightly been held to be defaulter.
(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑
‑‑‑‑S. 21‑‑‑Appeal‑‑‑Competency of‑‑‑Appeal against judgment of Rent Controller was not filed by tenant himself, but was filed by his brother‑‑Tenant though was shown in memorandum of appeal as appellant, but appeal was neither signed nor was verified on oath by tenant and instead was signed and verified by brother of the tenant‑‑‑Vakalatnama was also signed by brother of the tenant and no authority had been filed by brother of tenant from tenant for filing appeal through him‑‑‑Appeal, in circumstances, could not be said to have been filed by tenant against whom ejectment order was passed by Rent Controller‑‑‑Appeal being not competent was liable to be dismissed on that ground.
Ghulam Hyder v. Muhammad Haneef and others PLD 1979 Kar. 167 and Babu and another v. Jalal Din and another PLD 1992 SC 102 ref.
(c) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑
‑‑‑‑Ss. 2(f)(j) & 15(2)‑‑‑Relationship of landlord and tenant‑‑‑Tenant denied relationship of landlord and tenant between the parties contending that property in question belonged to Government‑‑‑Evidence on record had proved that tenant had been paying rent to the landlord‑‑‑No issue of relationship was framed by Rent Controller‑‑‑Question of title to property in dispute was therefore not relevant for determining relationship of landlord and tenant.
M.A. Awan for Appellant.
K.B. Bhutto for Respondent.
2000 M L D 2062
[Karachi]
Before Abdul Hameed Dogar, J
RAEES AHMED SIDDIQUI‑‑‑Appellant
versus
Sh. MUHAMMAD NAQI‑‑‑Respondent
First Rent Appeal No. 619 of 1999, decided on 21st March, 2000
Sindh Rented Premises Ordinance (XVH of 1979‑‑‑
‑‑‑‑Ss. 15 & 19‑‑‑Ejectment application‑‑‑Ex parte order‑‑‑Tenant had failed to file written statement despite several opportunities were provided to him in that respect‑‑‑Rent Controller passed ex parte ejectment order against tenant on basis of unrebutted oral and documentary evidence produced by landlord‑‑‑Tenant filing application for setting aside ex parte order had failed to prove that he could not file written statement because of his alleged hospitalization due to illness‑‑‑Tenant could not produce any medical certificate or any other proof of his hospitalization‑‑‑Tenant was rightly ordered to be ejected by Rent Controller‑‑"Ex parte ejectment order passed by Rent Controller against tenant could not be interfered with in circumstances.
Muniruddin Alvi for Appellant.
B.M. Bangash for Respondent.
2000 M L D 2067
[Karachi]
Before Ghulam Rabbani and S.A. Rabbani, JJ
ABDUL BASIT ZAHID and another‑‑‑Appellants
versus
MADORABA AL‑TIJARAH and another‑‑‑Respondents
First Appeal No.38, Civil Miscellaneous Applications Nos. 2050 of 1999 and 296 of 2000, decided on 22nd May, 2000.
(a) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O. XLI, Rr. 9 & 17‑‑‑Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997), S.21‑‑‑Appeal dismissed for non‑prosecution‑‑‑Restoration of‑‑Wrong date noted by the counsel in his diary‑‑‑Appeal was dismissed for non‑prosecution as no one from the appellant side appeared before the Court on the date fixed‑‑‑Reason advanced for such failure was that the counsel of the appellant had noted wrong date in his diary‑‑‑Validity‑‑‑Matters should be decided on merits and technicalities should always be overlooked to do justice to the parties‑‑‑High Court restored the appeal subject to payment of cost accordingly.
Municipal Committee, Rawalpindi v. Raja Muhammad Sarwar Khan 1968 SCMR 817; Raza Ali v. Ahmed Saeed Khan 1983 CLC 1230 and Bundu Shah and others v. Wilayatullah 1985 SCMR 1305 ref.
(b) Administration of justice‑‑
‑‑‑‑ Disputes before the Courts should be on merits decided and technicalities should always be overlooked to do justice between the parties.
Muhammad Aziz Khan for Appellant. Mansoorul Arifin for Respondent No. l .
Salim Salaam Ansari for Respondent No.2.
2000 M L D 1
[Lahore]
Before Khan Riazuddin Ahmed, l
GHULAM ASGHAR‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Criminal Appeal No.47 of 1992, decided on 21st November, 1997.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302/307/324/34‑‑‑Appreciation of evidence‑‑‑Prosecution witnesses had made straightforward statements with regard to occurrence and crime weapons used‑‑‑Prosecution witnesses were cross‑examined at length but nothing favourable to accused was brought on record‑‑‑Evidence on record had proved that accused had evil designs and was fully prepared to do away with deceased who had allegedly caused damage to his lands and in order to fulfil his said design, accused opened fire aiming and hitting deceased on vital part of body of deceased which resulted into his death‑‑‑Plea of self‑defence of person or property raised by accused, neither was proved nor spelled out from circumstances of case‑‑‑Prosecution had proved its case against accused beyond any reasonable doubt through unimpeachable evidence of prosecution witnesses which was corroborated by medical evidence and recovery of gun from accused‑‑‑Accused, in circumstances, was rightly convicted and sentenced.
Muhammad Zaman v. Dost Muhammad and others 1988 SCMR 388 and Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 ref.
Sardar Faiz Muhammad Khan Khosa for Appellant.
Akhtar Ali Qureshi for, the State.
Dates of hearing: 7th and 10th November, 1997.
2000 M L D 12
[Lahore]
Before Iftikhar Hussain Chaudhry and Zafar Pasha Chaudhry, JJ
MUHAMMAD SHABBIR‑‑‑Petitioner
versus
THE STATE‑‑‑Respondent
Criminal Miscellaneous No.4590‑B of 1999
(a) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497 (1), third proviso‑‑‑Bail, grant of‑‑‑Statutory delay in conclusion of trial‑‑‑Object‑‑‑Accused person has a right of speedy trial and the object of S. 497(1), third proviso of Cr.P.C. is that the trial in a criminal case should be completed expeditiously‑‑‑Provision of S.497(1), third proviso of Cr.P.C does not to any manner imply that a period of limitation has been prescribed and after lapse of that period, a right is .conferred on an accused person to seek bail.
Abdur Rashid v. The State 1998 SCMR 897 rel.
(b) Criminal Procedure Code (V of 1898)‑‑
‑‑‑‑S. 497(1), third proviso‑‑‑Penal Code (XLV of 1860), S. 302/324/148/149‑‑Bail, grant of‑‑‑Statutory delay in conclusion of trial‑‑‑Such delay was attributed to the accused on account of non‑availability of his counsel on few dates‑‑Contention raised by accused was to deduct the period of such delay attributed to the accused‑‑‑Validity‑‑‑Held, it was not a mathematical calculation‑‑‑Where the delay in conclusion at any stage of the trial was caused by accused or any of his authorised agent, then such accused was deprived of the concession permitted by S. 497(1), third proviso of Cr.P.C.‑‑‑Accused was not entitled to concession of bail on the ground of statutory delay accordingly.
Punjal v. The State 1990 PCr.LJ 2051 distinguished.
Abdur Rashid v. The State 1998 SCMR 897; Shahbaz and another v. The State 1995 PCr.LJ 1682; Nazir Hussain v. Zia‑ul‑Haq 1983 SCMR 72; Shoukat Ali v. Ghulam Ali 1998 SCMR 228 and Zahid H. Shah v. The State PLD 1995 SC 49 rel.
Muhammad Sadiq and 2 others v. State 1996 PCr.LJ 1440; Qaisar Mehmood v. The State 1996 MLD 157; Haji Javed Ahmad and another v. The State PLD 1997 Kar. 156; Liaqat Ali v. The State 1997 MLD 1667 and Aamar v. The State 1991 PCr.LJ 534 ref.
2000 M L D 20
[Lahore]
Before Iftikhar Hussain Chaudhry and Zafar Pasha Chaudhry, JJ
MUHAMMAD AMJAD‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Criminal Appeal No.489 and Criminal Revision No.539 Band Murder Reference No.201 of 1994, decided on 21st September, 1999.
(a) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Defence version‑‑‑Plea of self‑defence, grave and sudden provocation or sudden flare‑up etc.‑‑‑Onus to prove‑‑Principles‑‑‑Where a specific defence was put forward the accused person had to establish that his plexwas reasonably true and the possibility could not be ruled out that accused was compelled to act due to the circumstances urged in the defence statement‑‑‑Burden on accused person could not be equated with the burden of proof which lay on the prosecution to prove its case‑‑‑Prosecution, in order to bring home the guilt of the accused person had to prove its case beyond doubt‑‑‑Benefit of any doubt emerging from the prosecution case would accrue to the accused person‑‑‑Where the accused had taken up a specific plea of selfdefence, grave and sudden provocation or sudden flare‑up etc. accused was not burdened to prove the same beyond doubt.
(b) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Plea of self‑defence as well as grave and sudden provocation‑‑‑Deceased had abducted sister of the accused and married her against the will of the accused party, furthermore criminal litigation in between the parties remained pending‑‑‑Some grappling took place between the deceased and the accused‑‑‑Where the deceased had made some provocative remarks or had made an obscene exposure, the accused should not have retaliated in the manner as he did by inflicting successive blows of "Churri" to the deceased‑‑‑Death sentence awarded by Trial Court was set aside and accused was sentenced to imprisonment for ten years under S. 302(c), P.P.C. with benefit under S. 382‑B, Cr.P.C.
Barjees Nagi for Appellant.
Muhammad Saleem Shad for the State.
Date of hearing: 21st September, 1999.
2000 M L D 25
[Lahore]
Before Nasim Sikandar, J
SALEEM AUTOMOTIVE INDUSTRIES (PVT.) LTD. ‑‑‑Petitioner
versus
C.B.R. and others‑‑‑Respondents
Writ Petition No.7431 of 1999, decided on 3rd May, 1999.
Central Excises Act (I of 1944)‑‑‑
‑‑‑‑S. 35‑B‑‑‑S.R.O. No. 546(1)(I), dated 9‑6‑1994‑‑‑Letter No.l(10)/C.E.B./ 95, dated 9‑9‑1998‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Appeal was pending before Customs, Excise and Sales Tax Appellate Tribunal wherefrom interim relief had been allowed‑‑‑Constitutional petition ‑‑‑Maintainability‑‑Petitioner had challenged the assessment order whereas his first appeal before the Collector of Central Excise and second appeal were pending wherein interim relief had been granted‑‑‑Nothing had been brought home or even alleged which would justify entertainment of Constitutional petition when petitioner was agitating his cause before a competent forum which could decide the issues involved in the Constitutional petition‑‑‑Any kind of relief or its refusal in Constitutional petition will, thus, frustrate the provisions providing for appeals to the Customs Tribunal under S. 35‑B and to the High Court under S. 36‑C of the Central Excises Act, 1944‑‑‑Entertainment of Constitutional petition, therefore, would result in jumping over two forums provided under law and order recorded in Constitutional petition would render infructuous the proceedings before Customs Tribunal and there will be no occasion for any party to take the issue to High Court under its appellate jurisdiction‑‑Exercising Constitutional jurisdiction in a manner to forestall or frustrate appellate jurisdiction of High Court 'on 'the fact available will be totally unconstitutional‑‑‑Constitutional petition, in circumstances, was not maintainable.
Adil Polypropylene Products Limited v. The Federation of Pakistan through Secretary Finance, Federal Secretariat, Islamabad and others 1997 MLD 2189 and Nagina Silk Mills v. I.T.O. PLD 1963 SC 322 ref.
Pakistan Oxygen Ltd. v. Central Board of Revenue and others 1989 PTD 818 distinguished.
Wealth Tax Officer and another v. Shaukat Afzal and 4 others 1993 SCMR 1810; H.M. Abdullah. v. Income tax Officer, Circle V. Karachi and 2 others 1993 SCMR 1195; Commissioner of Income‑tax, Companies‑II and another v. Hamdard Dawakhana (Waqf), Karachi PLD 1992 SC 847; Sameer Electronics v. A.C. of Income‑tax, Lahore 1996 PTD 36 anc: Abdul Rehman v. I.T.O., Mirpur 1993 CLC 1101 rel.
Shafqat Mehmood Chohan for Appellant.
A. Karim Malik for Respondent No. 1.
Date of hearing: 30th April, 1999.
2000 M L D 30
[Lahore]
Before Raja Muhammad Khurshid, J
MUHAMMAD IQBAL KAUKAB‑‑‑Petitioner
versus
KAUKAB SULTANA‑‑‑Respondent
Civil Revision No.2480 of 1996, heard on 1st March, 1999.
Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O. VII, R. 10 & S. 115‑‑‑Suit for recovery of dowry in forma pauperis‑‑Question of territorial jurisdiction was raised during the proceedings in the petition for forma pauperis and it was decided that Court had territorial jurisdiction over the matter and suit was directed to be registered‑‑‑During the trial one of the issues on the question of territorial jurisdiction of the Court was also framed in which Trial Court came to the conclusion that Civil Court had no jurisdiction and directed that the plaint be returned under O. VII, R.10, C.P.C.‑‑‑First' Appellate Authority found that issue in respect of territorial jurisdiction had already been decided and there was no need to frame such issue and findings of Trial Court were set aside‑‑‑Validity‑‑‑Matter in issue in respect of territorial jurisdiction having been resolved and decided in favour of the respondent/plaintiff, there was no need to frame issue on that controversy while trying the main suit nor there was any need to give a fresh finding on that point‑‑‑None of the parties had challenged the findings given on by the Trial Court nor the same was challenged when the petition for forma pauperis was treated as a regular suit‑‑‑Matter having become final between the parties on the basis of evidence, same could not be re‑opened Legal flaw, irregularity or illegality having been found in the order passed by First Appellate Court, revision petition was dismissed.
Makhdoom Ghulam Shabbir for Petitioner.
Syed Ahmad Saeed Karmani for Respondent.
Date of hearing: 1st March, 1999.
2000 M L D 34
[Lahore]
Before Asif Saeed Khan Khosa, J
Mst. SHAHNAZ AKHTAR and 5 others‑‑‑Petitioners
versus
MEMBER (COLONIES), BOARD OF REVENUE, PUNJAB, LAHORE
and 2 others‑‑‑Respondents
Writ Petition No.2961 of 1992, heard on 18th. March, 1999.
(a) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑
‑‑‑‑S. 10‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Application to Colony Assistant Collector seeking allotment of Ihata mentioning therein that Ihata in question was not only vacant but the same was also available for allotment‑‑‑Ihata was allotted to the petitioner and respondent's application was rejected by Colony Assistant/Collector‑‑‑Appeal of respondent was also dismissed by Additional Commissioner‑‑‑Member (Colonies), Board of Revenue on the report of Assistant Commissioner that respondent was in possession of said Ihata for the last about 6/7 years by unauthorisedly constructing a house thereupon ordered that Ihata be allotted to the respondent‑‑‑Validity‑‑‑Member, Board of Revenue had completely failed to advert to respondent's own application submitted for allotment of Ihata which maintained that Ihata in question was not only vacant but also not in possession of anybody‑‑‑Party to litigation could not draw strength from a report of an officer if such report disclosed such facts which were controverted by that party itself in its own documents‑‑‑Order of Member (Colonies), Board of Revenue was based on fact which was not even in accordance with the stand taken by the respondent‑‑Respondent had come into possession of the Ihata some time after filing of the application for allotment which amounted to improvement of the qualification of respondent during the pendency of litigation and such improvement could not be taken into notice by Board of Revenue in revision for revisional jurisdiction was primarily meant to determine legality, regularity or propriety of a decision or proceedings of a subordinate forum and not to determine the issue involved on the basis of development which had taken place subsequent to the commencement of a lis or a dispute‑‑‑Exercise of such jurisdiction by Member, Board of Revenue (Colonies) was without lawful authority, and therefore, of no legal effect‑‑‑Respondent was admittedly in unauthorised possession of Ihata in question at the time of decision of revision petition by Board of Revenue and a person resorting to such an unauthorised possession for the purpose of improvement of his status/qualification was hardly entitled to an exercise of discretion in his favour‑‑‑Order passed by the Member (Colonies), Board of Revenue was declared to be without lawful authority and of no legal effect, while order passed in favour of petitioner by the Colony Assistant/Collector and First Appellate Authority was restored.
(b) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑
‑‑‑‑S. 10‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Question of adequate remedy ‑‑‑Revisional order of Member (Colonies), Board of Revenue‑‑‑Contention was that petitioner had adequate remedies for seeking,' relief and to call in question the impugned order by way of a civil suit or a review petition before the Board of Revenue itself and, thus, canvassed for dismissal of, petition‑‑‑Validity‑‑‑Remedies by way of filing a civil suit or by way of review petition was generally not considered to be adequate, alternate remedies for the purpose of Art.. 199 of the Constitution of Pakistan (1973), so as to disentitle petitioner to file a Constitutional petition before High Court.
Ch. Saghir Ahmad for Petitioners.
Shamsul Haq Ansari for Respondent No.2.
Nemo for the Remaining Respondents.
Date of hearing: 18th March, 1999.
2000 M L D 39
[Lahore]
Before Zafar Pasha Chaudhry, J
Messrs MULTAN FLOUR MILLS‑‑‑Petitioner
versus
ADMINISTRATOR, ZILA COUNCIL‑‑‑Respondent
Writ Petition No. 1375 of 1997, decided on 6th May, 1997.
Punjab Local Government Ordinance (VI of 1979)‑‑‑
‑‑‑‑Ss. 137 & 144‑‑‑Punjab Zila Councils (Export Tax) Rules, 1990, R.5‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Exit tax‑‑Levy‑‑‑Revision or modification of levy of Exit tax‑‑‑Power of Government‑‑Government had the power and authority to direct District Council to levy tax and also to modify or abolish the same‑‑‑Contention that since tax had been levied by District Council, Provincial Government was not authorised to revise or modify the same, was repelled‑‑‑Allegation was that Contractor/Lease‑holder had been receiving tax even after same had been abolished‑‑‑Held, enquiry would have to be conducted to ascertain as to what amount had beets charged and how the same had to be adjusted‑‑‑Propriety demanded that matter be referred to the arbitrator to hear and decide the same.
Dandot Cement Company v. D.C./Collector PLD 1997 Lah. 533. ref.
Muhammad Rashid Qamar for Petitioner. Muhammad Anwar Bhair, A.A. ‑G. for Respondent.
Date of hearing: 6th May, 1997.
2000 M L D 63
[Lahore]
Before Muhammad Islam Bhatti, J
SAHIB KHAN and 5 others‑‑‑Petitioners
versus
THE STATE‑‑‑Respondent
Criminal Miscellaneous No.97‑Q of 1991, heard on 4th October, 1998.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 561‑A‑‑‑Penal Code (XLV of 1860), 5.420/468/471/409‑‑‑Quashing of proceedings‑‑‑Accused being a Government servant, no criminal case could be registered against him with local police‑‑‑Case against accused was hanging for the last more than ten years . but trial had not been concluded‑‑‑Proceedings against accused, were ordered to be quashed, in circumstances.
Khan Wazir and 3 others v. The State 1977 PCr.LJ 93; Piru v. The State 1984 PCr.L1 3131 and Muhammad Sharif v. S.H.O., P.S. City, Wazirabad PLD 1997 Lah. 692 ref.
Mian Jamil Akhtar and Sohail Akhtar Sheikh for Petitioners. Mian Abdul Qayyum Anjum for the State.
Date of hearing: 4th October, 1998.
2000 M L D 77
[Lahore]
Before Iftikhar Hussain Chaudhry and Sh. Lutfur Rehman, JJ
MUKHTAR AHMAD‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Criminal Appeal No.325, Criminal Revision Petition No. 247 and Murder Reference No. 142 of 1991, heard on 19th May, 1998.
(a) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss. 120‑A & 302‑‑‑"Conspiracy"‑‑‑Meaning‑‑‑Conspiracy was a scheme which germinated in the dark alleys of sinister minds and would come to light only when its external results were known‑‑‑Direct evidence for hatching of conspiracy was hard to come by and it would be proved by indirect evidence which could falter and could not result in conviction of conspirators‑‑Happening of an event or existence of a state of affairs was one thing and proving, at a subsequent stage the particular manner in which it had happened or had prevailed, were altogether different things‑‑‑Non‑proving of conspiracy through sufficient evidence of. acceptable legal standard would never mean that such an event had not taken place.
(b) Penal Code (XLV 1860)‑‑‑
‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Complainant was not required to explicitly assign motive of each of accused mentioned in F.I.R.‑‑‑Failure of prosecution to prove satisfactorily its case against; all accused would not cloud its case against convict.
(c) Penal Code (XLV 1860)‑‑‑
‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Occurrence had taken place inside the house of complainant where he was present and sister of deceased was also present in her father's house‑‑‑Nothing was suggested to them that they were present elsewhere‑‑‑Correctness of site plan was not challenged and Investigating Officer was not accused of having changed spot of occurrence‑‑‑One of prosecution witnesses was a next door neighbour of complainant and all prosecution witnesses were present at or near spot‑‑‑Medical Officer had mentioned in his report the same time of occurrence which was mentioned in the F. I. R. ‑‑‑Accused had fired at deceased from a short distance and had gone deeply into house of deceased‑‑‑Detection or establishment of identity of accused were not at all questionable, in circumstances‑‑‑Testimony of prosecution witnesses was unequivocal and straightforward‑‑‑Prosecution had successfully proved its case against accused on basis of evidence led at trial‑‑‑Accused who had committed savage and cold‑blooded murder of deceased, was rightly convicted and sentenced by Trial Court.
Akhtar Ali Qureshi, Abdul Nasir Jasra and Ijaz Hussain Batalvi for Appellant.
Sardar Muhammad Latif Khan Khosa and Ch. Muhammad Ishaq for Respondents.
Date of hearing: 19th May, 1998.
2000 M L D 94
[Lahore]
Before Khalil‑ur‑Rehman Ramday, J
MUHAMMAD RAMZAN‑‑Petitioner
versus
THE STATE‑‑‑Respondent
Criminal Miscellaneous No. 1874/13 of 1997, decided on 16th May, 1997
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 11‑‑‑Bail, grant of‑‑‑At time of lodging F.I.R. complainant who was husband of co‑accused had thought that his wife/co‑accused had been abducted by accused, but during course of investigation it transpired that his wife/co‑accused had developed illicit relations with accused and had voluntarily eloped with him‑‑‑Accused had not been able to offer any reasonable explanation as to why he should have been falsely implicated in the case‑‑‑Conduct of accused was not such which could entitle him to concession of bail.
Mst. Wazeeran and others v. State 1987 MLD 1202 and Muhammad Saleem Ullah v. State 1993 PCr.LJ 1533 ref.
Zahid Hussain Khan for Petitioner Bashir Ahmad Baig for the State.
Date of hearing: 16th May, 1997.
2000 M L D 95
[Lahore]
Before Raja Muhammad Sabir and Sheikh Abdur Razzaq, JJ
MUHAMMAD RAFIQ‑‑‑Petitioner
versus
MAQBOOL AHMAD and 6 others‑‑‑Respondents
Criminal Miscellaneous No. 1904‑BC of 1998, decided on 14th May, 1998
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), S 302/148/149‑‑‑Bail, cancellation of‑‑Perusal of F.I.R. had shown that accused had been assigned a specific role in commission of offence and each of them had been shown to be armed with a fire‑arm ‑‑‑Post‑mortem examination report had shown that out of 23 injuries sustained by deceased, as many as 10 injuries had been caused by blunt weapon‑‑‑Presence of injuries with blunt weapon had made prosecution story highly incredible as none of assailants/accused had been assigned any injury with blunt weapon‑‑‑Accused had been found innocent as a result of investigation conducted by local police and, subsequently, verified by Deputy Superintendent of Police‑‑‑Courts, no doubt, were not bound to accept opinion of Investigating Officer, but facts of each case had to be kept in mind while taking into consideration opinion of Investigating Officer ‑‑‑Post‑mortern examination report having made prosecution case highly doubtful, opinion of Investigating Officer declaring accused innocent, could not be brushed aside‑‑‑Court below having extended concession of bail to accused in accordance with law, such order would not call for any interference.
Ch. Muhammad Jahangir Wahla for Petitioner.
Muhammad Taki Khan for Respondents.
Syed Hassan Ali Shah for the State.
2000 M L D 108
[Lahore]
Before Tassaduq Hussain Jilani, J
MUHAMMAD RIZWAN FAYYAZ‑‑‑Petitioner
versus
LAHORE BOARD OF INTERMEDIATE AND SECONDARY EDUCATION‑‑‑Respondent
Writ Petition No. 1371 of 1999, decided on 17th March, 1999.
Punjab Boards of Intermediate and Secondary Education Committee of Chairmen Intermediate Part System Examinations Rules‑‑‑
‑‑‑‑ Rr. 7, 25, 26 & 28‑‑‑Educational institution‑‑‑Passing of Intermediate Examination‑‑‑Improvement of division‑‑‑Entitlement‑‑‑Candidate passed Intermediate Examination obtaining 66% marks m Mathematics but required 300 aggregate marks in Part I & Part II in the relevant subject‑‑‑Candidate desirous of admission in professional college applied to Board for appearing in Mathematics Paper for improving his division‑‑‑As per Rr. 7, 25 & 26 of Punjab Boards of Intermediate and Secondary Education Committee of Chairman Intermediate Part System Examinations Rules, candidate who had passed after obtaining 33 % marks in individual papers and 300 marks in Part I or Part II in aggregate could not appear in individual paper (Mathematics) alone to improve his division‑‑‑Such candidate would have to appear in all papers of Part II in terms of R. 28 of the Rules‑‑‑Board, in circumstances, had rightly denied candidate to appear in Mathematics alone for improving division.
Dr. A Basit for Petitioner. Sh. Shahid Waheed for Respondent.
Date of hearing: 17th March, 1999.
2000 M L D 117
[Lahore]
Before Falak Sher, J
SHAHID MAHMOOD alias SHAHID IMRAN‑‑‑Petitioner
versus
THE STATE‑‑‑Respondent
Criminal Miscellaneous No.2132‑B of 1998, decided on 18th May, 1998.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S. 324/337‑F (iii)/148/149‑‑‑Bail, grant of‑‑‑Locale of ascribed injury was on non‑vital part for which injured was released a day after from hospital ‑‑‑Co‑accused with identical role, though on account of minority, having been released on bail, accused was, too, entitled to concession of bail who had served more than 6 months and with the submission of challan, he was no more required by Investigating Agency especially when commencement of trial was not in sight‑‑‑Accused was granted bail in circumstances.
Zahid Hussain Khan for Petitioner. Muhammad Asif for the State. Sadaqat Mehmud Butt for the Complainant.
2000 M L D 120
[Lahore]
Before Iftikhar Ahmad Cheema, J
Malik BASHIR AHMAD‑‑‑Petitioner
versus
ADDITIONAL DISTRICT JUDGE, BAHAWALPUR and others‑‑‑Respondents
Writ Petition No.59 of 1999/BWP, decided on 8th March, 1999.
Muslim Family Laws Ordinance (VIII of 1961)‑‑‑
‑‑‑‑S. 8‑‑‑West Pakistan Family Courts Act (XXXV of 1964), S. 5 & Sched.‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for dissolution of marriage by wife on ground of cruelty and Khula'‑‑‑Closing evidence of husband‑‑‑Validity‑‑‑Wife filing suit for dissolution of marriage on ground of cruelty and Khula' and stated unambiguously that she had cultivated hatred against husband‑‑‑Husband had failed to produce evidence in rebuttal despite he was afforded six opportunities for production of evidence‑‑‑Family Court closed evidence of husband and order of Family Court was upheld in appeal‑‑‑Concurrent order of Courts below could not be interfered with in absence of any reasonable ground.
Muhammad Sharif Bhatti for Petitioner. Malik Muhammad Aslam for Respondent No.3.
2000 M L D 129
[Lahore]
Before Tassaduq Hussain Jilani, J
GHULAM RASUL‑‑‑Petitioner
versus
THE STATE‑‑‑Respondent
Criminal Miscellaneous No. 120‑B of 1998, decided on 25th February, 1998.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S: 497‑‑‑Penal Code (XLV of 1860), Ss. 302/34, 337‑A(ii), (iii)/337‑F5A(i)/148/149‑‑‑Bail, grant of‑‑‑Accused was 87 years of age and deceased died after seventeen days of the occurrence and four persons from side of accused had received injuries whereas three including deceased had received injuries from other side‑‑‑Case being of sudden fight, presence of element of mens rea in so far as accused was concerned was not free from doubt‑‑Question of accused's involvement in alleged offence, thus, would call for ' further inquiry‑‑‑Accused who was 87 years of age as in judicial lock‑up for the last more Man one and a half years‑‑‑Bail was granted to accused in circumstances.
Altaf Ibrahim Qureshi for Petitioner.
S.M. Rashid for the State.
2000 M L D 136
[Lahore]
Before Iftikhar Hussain Chaudhry, J
ZAHEER‑UD‑DIN and others‑‑‑Petitioners
versus
THE STATE and others‑‑‑Respondents
Criminal Miscellaneous No.65‑Q of 1997, decided on 14th June, 1998.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 561‑A‑‑‑Penal Code MY of 1860), S. 440/452/148/149‑‑‑Quashing of order‑‑‑Accused were acquitted lay trial Magistrate, but on filing review petition against such acquittal by complainant, order of acquittal was set aside by Appellate Court below and case was remanded for proceedings with case further‑‑‑Accused had sought quashing of order passed by Appellate Court below‑‑‑Evidence on record had shown that case was adjourned on numerous dates on account of absence of one or more of the accused‑‑‑Case could not conclude on account of delaying tactics employed by accused themselves and prosecution could not be blamed for delay in conclusion of the trial and Appellate Court below considering the situation had passed legitimate order in matter which did not suffer from any illegality or impropriety‑‑‑Petition for quashing of order of Appellate Court below was dismissed in circumstances.
Zahid Hussain Khan for Petitioners.
Respondent No.2 in person
2000 M L D 140
[Lahore]
Before Falak Sher and Muhammad Asif Jan, JJ
GULZAR and 2 others‑‑‑Petitioners
versus
THE STATE‑‑‑Respondent
Criminal Miscellaneous No. l of 1997 in Criminal Appeal No. 837 of 1995, decided on 14th January, 1998.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 426‑‑‑Penal Code (XLV of 1860), S. 302/460‑‑‑Suspension of sentence‑‑Suspension of sentence was sought on ground that no overt act was ascribed to convicts as deceased had fallen a prey to co‑convict's gunshot and that statutory period prescribed by S.426, Cr.P.C. had lapsed‑‑‑Contentions of convicts remained uncontroverted from prosecution side‑‑‑Request of convicts for suspension of sentence till final decision of main appeal filed by accused against their conviction was accepted.
Zahid Hussain Khan for Petitioners.
Aamer Sana for the State.
2000 M L D 143
[Lahore]
Before Iftikhar Hussain Chaudhry; J
MAQSOOD AHMAD and another‑‑‑Petitioners
versus
THE STATE‑‑‑Respondent
Criminal Miscellaneous No. 1‑B of 1999 in Criminal Appeal No.338 of 1998, decide(Yon 14th June, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 426 (1)(a)(b)‑‑‑Penal Code (XLV of. 1860), S.324/34‑‑‑Suspension of sentence‑‑‑Statutory delay‑‑-Accused were sentenced to seven years' imprisonment by‑ Trial Court‑‑‑Period of imprisonment exceeded one. year and appeal filed by accused persons had not been decided within the period prescribed by the statute‑‑‑Accused persons were entitled under S. 426(1)(a)(b), Cr.P.C. to suspension of sentence awarded to them in circumstances.
Shaharyar Sheikh for Appellants.
Maqsood Ahmad Khan for the State.
2000 M L D 144
[Lahore], Before Rashid Aziz Khan, C.J. and Tassaduq Hussain Jilani, J
BAHADUR KHAN alias TUNDA‑‑‑Petitioner
versus
THE STATE‑‑‑Respondent
Criminal Miscellaneous No.748‑B of 1999, heard on 6th July, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497‑‑‑Control of Narcotic Substances Act (XXV of 1997), S. 9(c)‑‑‑Bail, grant of‑‑‑Recovery of 1200 grams of heroin and one and a half kilograms of Charas was effected from the accused‑‑‑Earlier another case of drug trafficking stood registered against the accused‑‑‑Neither recovery of the narcotics was denied nor any mala fide in registration of the case was pleaded‑‑‑Reasonable grounds existed to connect accused with offence falling within prohibitory clause of S. 497, Cr.P.C.‑‑‑Accused was not entitled to bail in circumstances.
Shaharyar Sheikh for Petitioner.
C.M. Latif for the State.
2000 M L D 155
(Lahore)
Before Syed Najam‑ul‑Hassan Kazmi, J
ALLAH JAVAI and others‑‑‑Petitioners
versus
Mst. JAVAI and others‑‑‑Respondents
Civil Revision No.2404 of 1995, decided on 6th May, 1999.
Transfer of Property Act (IV of 1882)‑‑‑
‑‑‑‑Ss. 122 & 123 ‑‑‑Civil Procedure Code (V of 1908), S. 115‑‑‑Gift‑‑Validiy‑‑‑Respondents had claimed that land in dispute was gifted out to them by deceased donor‑‑‑Mutation of said gift was entered on report of Patwari, but his report did not indicate that deceased donor was identified by any one ‑‑‑Patwari had himself admitted that he did not personally know donor and report of Patwari was never got verified from Girdawar Halqa‑‑‑Mutation of gift had been attested seven days after the death of donor‑‑‑Alleged gift transaction was, thus, collusive, fictitious, fraudulent and concocted‑‑‑Fact that some of the other co‑sharers in property of deceased did not question gift made in favour of respondents, would not, adversely affect the rights of petitioners, who were asking for their own share‑‑‑Petitioners, therefore, could not be prejudiced by any alleged inaction of some of legal heirs of deceased.
Abdul Latif Dar for Petitioners
Mian Muhammad Nawaz for Respondents
Date of hearing: 6th May, 1999
2000 M L D 166
[Lahore]
Before Raja Muhammad Khurshid, J
Messrs IFTIKHAR AHMAD & CO.‑‑‑Petitioner
versus
PROVINCE OF PUNJAB through Secretary, Communications, and Works Department and 4 others‑‑‑Respondents
Writ Petition No. 13455 of 1998, heard on 4th May,, 1999.
Constitution of Pakistan (1973)‑‑‑
‑Art.l98‑‑‑Constitutional petition ‑ Payment of arrears of bill to contractor or, completion of contract‑‑‑Contractor which was granted contract for renovation/restoration of Government building, completed said work within stipulated period and submitted bill to the Authority concerned‑‑‑Authority referred bill to approved consultant company to vet or approve rates of work to be given to the contractor and consultant company determined net amount due to contractor‑‑‑Contractor lodged demand with Competent Authority for payment of amount . as determined by consultant company and Competent Authority directed Authority below, to make arrangement for payment of said amount to the contractor‑‑‑Concerned Department objected that contractor having varied existing rates, was not entitled to claim amount and that matter should be referred for arbitration as provided in the contract‑‑‑Validity‑‑‑Rates were duly checked by approved consultant company and were found in order and amount payable to contractor was determined on basis thereof and the amount so determined neither could be reduced nor payment thereof could be refused‑‑Contention that contractor should have . moved the matter before arbitration before filing Constitutional petition. was repelled, because disputed amount for payment of which contractor was found entitled, was refused to it and said refusal had compelled the contractor to file Constitutional petition as its fundamental right was violated by the said act‑‑‑In absence of any dispute under contract at relevant time, arbitration clause could not be invoked.
Noor Muhammad Shaikh for Petitioner.
Imtiaz Ahmed Kaifi, A.A.‑G. for Respondents.
Date of hearing: 4th May, 1999.
2000 M L D 173
[Lahore]
Before Syed Najam‑ul‑Hassan Kazmi, J
Mst. SHAMSHAD MAI ‑‑‑Petitioner
versus
CHAIRMAN, ARBITRATION COUNCIL, AHMEDPUR EAST, DISTRICT BAHAWALPUR and 2 others‑‑ Respondents
Writ Petition No. 1201‑F of 1996, decided on 23rd June; 1999.
Muslim Family Laws Ordinance (VIII of 1961)‑‑‑
‑‑‑‑Ss. 7 & 8‑‑‑West Pakistan Family Courts Act (XXXV of 1964), S. 5 & Sched.‑‑‑Divorce on mutual consent (Muba'arat)‑‑‑Withdrawal‑‑‑If divorce was with mutual consent and on basis of Muba'arat husband could not retract or withdraw such divorce/Talaq nor Chairman Arbitration Council had any authority to adjudicate upon validity of such divorce‑‑‑Chairman, Arbitration Council was bound to issue a certificate of effectiveness of divorce and had no power to entertain notice of withdrawal of divorce or start proceedings on basis thereof.
Muhammad Shahbaz Ahmad v. Sher Muhammad and others 1987 CLC 1496; Prince Aiysha Yasmeen Abbasi v. Maqbool Hussain Qureshi PLD 1979, Lah. 241 and Abdul Rashid ani 2 others v. S.H.O., Police Station Sadar, Rehnala 1995 PCr.LJ 1247 ref.
Rana Sardar Ahmad for Petitioner
Nemo for Respondents
Date of‑hearing: 23rd June, 1999
2000 M L D 181
[Lahore]
Before Amir Alam Khan, J
Mst. ISHRAT KHAN‑‑‑Petitioner
versus
RAUF AHMAD SHEIKH and another‑‑‑Respondents
Writ Petition No.9451 of 1997, decided on 30th April, 1999.
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑
‑‑‑‑Ss. 2(c)(i), 13(2)(i) & (3)(i)(a)‑‑‑Constitution of Pakistan (1973.), Art. 199‑‑Relationship of landlord and tenant‑‑‑Bona fide personal need of landlord and default in payment of rent‑‑‑Constitutional jurisdiction, exercise of‑‑‑Tenant denied relationship of landlord and tenant between the parties contending that she was owner in possession of house in dispute and was occupying same as wife of landlord alongwith minor daughter from said wedlock‑‑‑Tenant could not explain as to how she came to be owner of house in dispute whereas rent notice executed by her in favour of landlord in respect of house in dispute had fully established that she was tenant ‑‑‑Copy of registered sale‑deed in respect of house in dispute duly executed in favour of landlord by original owner of house in dispute had established ownership of landlord in respect thereof‑‑‑Rent Controller and Appellate Authority below had rightly concluded on basis of unrebutted documentary and oral evidence on record that relationship of landlord and tenant existed between the parties‑‑‑Concurrent findings of Authorities below based on evidence on record could not be interfered with by High Court in exercise of its Constitutional jurisdiction.
1983 SCMR 1064; Azeem‑un‑Nisa Begurn v. Ali Muhammad PLD 1990 SC 382; Muhammad ldrees v. Mst. Safia Begum 1986 SCMR 795; Iqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242; Mst. Noor Bibi and others v. Abdul Ghaffar 1996 SCMR 877; Mst. Ghulam Bibi v. Sarsa Khan PLD 1985 SC 345; Khurshid Ali and 6 others v. Shah Nazar PLD 1992 SC 88= and Mst. Begum and others v. Mst. Kaniz Fatima Hayat 1989 SCMR 883 ref.
(b) Islamic Jurisprudence‑‑‑
‑‑‑‑ Administration of justice ‑‑‑Qazi no doubt was not to wait and see as to who from the litigating parties had committed a mistake and then haul him up for the same, but it was equally true that procedure as prescribed and found in the statute books, was to be followed and that Islamic principles of administration of justice could only be applied when there was a vacuum in procedure.
(c) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Findings recorded by two Courts below not suffering from any infirmity nor any jurisdictional defect or misreading or non‑reading of record, could not be interfered with by High Court in exercise 'of its Constitutional jurisdiction.
Khawaja Haris Ahmad for Petitioner.
Atif Amin for Respondent N0.3.
Nemo for Respondents Nos. 1 and 2.
Dates of hearing: 26th February; 22nd, 24th March and 6th April, 1999
2000 M L D 191
[Lahore]
Before Maulvi Anwar‑ul‑Haq, J
MUHAMMAD NAWAZ KHAN‑‑‑Petitioner
versus
MEMBER, BOARD OF REVENUE and another‑‑‑Respondents
Writ Petition No.732 of 1984, decided on 10th June, 1999.
Land Reforms Regulation, 1972 (M.L.R. 115)‑‑‑
‑‑‑‑Para. 25‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for pre‑emption on basis of being tenant in land‑‑‑Suit was filed on ground that pre‑empted land was included in non‑occupancy tenancy of pre‑emptors‑‑‑Suit was decreed by Collector, but finding of Collector was set aside by Appellate Authority holding) that pre‑emptor was not tenant during "Rabi" at the time sale took, place, but it was in "Kharif" when pre‑emptor was so mentioned in Khasra Girdawari in land in dispute‑‑‑Board of Revenue, in revision, set aside finding of Appellate Authority by an order not supported by evidence on record but based on . conjectures‑‑‑Order passed by Board of Revenue not based on evidence on record, and passed without giving cogent reasons, was set aside by High Court in exercise of its Constitutional jurisdiction.
Ghulam Hussain and, others v. Sardar Khan and others PLD 1956 SC 309 and Khadim Hussain and others v. Muhammad Nawaz Khan 1981 SCMR 1183. ref.
Muhammad Zafar Chaudhary for Petitioner.
Raja Mahmud Akhtar for Respondents.
Date of hearing: 10th June, 1999.
2000 M L D 193
[Lahore]
Before Sh. Amjad Ali, J
SHAMSHER MEHDI‑‑‑Petitioner
versus
THE STATE and 4 others‑‑‑Respondents
Criminal Revision No.75 of 1998, heard on 21st May, 1999.
(a) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.540‑‑‑Power to summon material witness etc. ‑‑‑Provisions of S.540, Cr.P.C. are quite exhaustive and fully empower the Court to allow the evidence at any stage of the proceedings which appears to be essential for the just decision of the case.
(b) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑Ss.540 & 439‑‑‑Penal Code (XLV of 1860), S.302/364/34 ‑‑‑ Summoning of evidence‑‑‑Copy of the plaint and power of attorney which the prosecution now intended to produce were part of the previous judicial record which at such stage could not be prepared or manufactured by any party‑‑‑Trial Court, therefore, should have allowed the admission of such documents notwithstanding that the prosecution had already closed its case‑‑‑Said documents might not be very essential for decision of the case, but certainly the same could help the Court in arriving at a just conclusion‑‑‑Such documents were consequently directed to be allowed for admission in evidence in accordance with law.
Nusrat alias Nusree v. The State PLD 1994 Lah. 93; Muhammad Aram‑v. Muhammad Iqbal and others PLD 1984 SC 95; Mst. Aamna Bibi v. Kashif‑ur‑Rehman and another 1995 PCr.LJ 730; Abdul Ghafoor v. The State and 2 others PLD 1983 Lah. 139; Syed Shabbir Hussain v. The State 19811 SCMR 1126; Usman Ghani v. Haji Muhammad Amin Khan PLD 1975 Lah. 299 and Messers Waqas Enterprises and others v. Allied Bank of Pakistan and 2 others 1999 SCMR 85 ref.
Sardar Muhammad Ishaque Khan for Petitioner.
Qazi Muhammad Amin, M. Amir Butt and Malik Muhammad Kabir for A.A.‑G. for Respondents.
Date of hearing: 21st May, 1999.
2000 M L D 199
[Lahore]
Before Sh. Amjad Ali, J
Syed TAUSIF HUSSAIN SHAH and others‑‑‑Petitioners
versus
DISTRICT MAGISTRATE, CHAKWAL and others‑‑‑ Respondents
Writ Petition No.2247 of 1998, decided on 25th May, 1999.
Police Act (V of 1861)‑‑‑
‑‑‑‑S. 30, proviso [as amended by Police (Punjab Amendment) Ordinance (VIII of 1984)]‑‑‑Constitution of Pakistan (1973), Arts. 20 & 199‑,Constitutional petition‑‑‑Taking out "Alam procession" by people of Shia Sect‑‑‑Grant of licence‑‑‑Petitioners had prayed that District Administration and other persons should be restrained from resisting taking out of "Alam procession" from particular place of village and that Administration should settle matter of fixing route of the procession‑‑‑Petitioners had contended that S. 30, Police Act, 1861' did not empower District Administration to refuse grant of licence to take out ' Alam procession' as said refusal would violate provisions of Art.20, Constitution of Pakistan (1973)‑‑‑Administration contended that permission could not be given to petitioners because of law and order situation prevailing in the area and that grant of licence for taking out proposed ' Alam procession' would further aggravate situation and give rise to riots, particularly because majority of residents of the village were followers of Sunni Sect‑‑‑District Administration under proviso to S.30 of Police Act, 1861, was empowered to refuse to grant required licence if it was satisfied that grant of the licence was likely to cause a breach of peace‑‑Validity‑‑‑Under existing situation when disputes between the two sects were aggravating any grant of licence to petitioners would tantamount to unnecessary interference in affairs of Administration‑‑‑High Court, in absence of any material on record to differ with opinion of Administration, could not substitute its opinion in exercise of its Constitutional jurisdiction.
Syed Sarfraz Hussain Bokhari v. District Magistrate, Kasur and others PLD 1983 SC 172; Syed Dilshad Hussain v. District Magistrate, Sialkot and another PLD 1983 Lah. 97; Muhammad Hussain Bhatti v. District Magistrate, Gujrat 1985 PCr.LJ 301; Mian Muhammad v. Government of West Pakistan and another 1970 SCMR 645; Hakim Sherf Ahmad Chishti v. Syed Abbas and 2 others PLD 1976 Lah. 85; Mohabat Ali v. The District Magistrate, Campbellpur and another PLD 1976 Lah. 755 and Syed Muhammad Hussain Shah v. Government of Punjab and another NLR 1992 CLJ 640 ref.
Syed Zulfiqar Abbas Naqvi for Petitioners. Raja Saeed Akram, Asstt. A.‑G. for the State.
Date of hearing: 24th May, 1999.
2000 M L D 208
[Lahore]
Before Falak Sher and Raja Muhammad Sabir, JJ
SAIF UL MALOOQ‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Criminal Appeal No.346, Murder Reference No. 126 of 1990 and Criminal Revision No. 652 of 1991, heard on 27th January, 1999.
(a) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S.302/307/148/149/109‑‑‑Charge of conspiracy‑‑‑No overt act was attributed to the accused‑‑‑Court, in every case had to sift the grains from the chaff and especially in such cases where the number of accused persons was disproportionate to the injuries received by the victims‑‑‑Where evidence of conspiracy was disbelieved, Trial Court had rightly acquitted the accused of the charge and such acquittal of accused persons did not affect the prosecution case qua the convicts.
(b) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S.302/307/148/149/109‑‑‑Criminal Procedure Code (V of 1898), S.342‑‑Appreciation of evidence‑‑‑Defence version‑‑‑Raising of defence plea for the first time while making statement under S.342, Cr.P.C.‑‑‑One of the accused raised the plea that the other accused did not participate in the occurrence and such plea was not taken before the Investigating Officer‑‑‑No such suggestion was put to the prosecution witnesses during the trial‑‑‑Such plea was not worth reliance and the same was discarded in circumstances.
(c) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S.302/307/148/149/109‑‑‑Appreciation of evidence‑‑‑Prosecution evidence inspired confidence‑‑‑Ocular account was corroborated by medical evidence as well as evidence of recoveries‑‑‑Principal accused had admitted the occurrence, although denied by the other accused‑‑‑Plea of false implication in the case by one of the accused was disbelieved as such plea was raised for the first time during the making of statement under S.342, Cr.P.C.‑‑‑Prosecution succeeded. to prove its case against the accused persons‑‑‑Immediate cause of incident was shrouded in mystery and both the prosecution as well as the defence had suppressed the same‑‑‑Conviction and sentence of death awarded to the accused persons by the Trial Court were converted into imprisonment for life.
Ijaz Hussain Batalvi and Akhtar Ali Qureshi for Appellant.
S.D. Qureshi for the State.
Sardar Muhammad Latif Khan Khosa for the Complainant.
Dates of hearing: 25th and 27th January, 1999.
2000 M L D 220
[Lahore]
Before Ch. Ijaz Ahmed, J
THE STATE‑‑‑Appellant
versus
MUHAMMAD AFZAL and another‑‑‑Respondents
Criminal Appeal No. 15 of 1991, heard on 2nd August, 1999.
(a) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 249‑A‑‑‑Acquittal of accused‑‑‑Conditions‑‑‑Hearing of prosecutor and the accused is pre‑condition to the order of acquittal under S. 249‑A, Cr.P.C.‑‑‑Any such judgment was to be pronounced by Court in presence of accused or in case where personal attendance of accused is dispensed with, in the presence of his Advocate.
PLD 1984 SC 428; 1986‑PCr.LJ 1824; 1987 PCr.LJ 1633 and 1990 PCr.LJ 113 ref.
(b) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 249‑A‑‑‑Acquittal of accused‑‑‑Judicial order‑‑‑Where such order was not passed after applying independent judicial' mind, the same was not sustainable in the eyes of law.
1988 PCr.LJ 2002 rel.
(c) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 249‑A‑‑‑Acquittal of accused without any application under S. 249‑A, Cr.P.C.‑‑‑Validity‑‑‑Where no such application was filed before Trial Court, order of acquittal was not sustainable in the eyes of law.
1990 MLD 206 rel.
(d) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 249‑A‑‑‑Acquittal of accused‑‑‑Determining of a case whether falling under S. 249‑A, Cr.P.C.‑‑‑Factors to be considered‑‑‑Court has to satisfy itself that the case under consideration is a fit case for its interference even at preliminary stage‑‑‑Court has also to see that in the admitted circumstances of the case, if the case is allowed to proceed it would be a mockery of trial‑‑Court is to interfere in the interest of justice and to stop the abuse of process of law.
1994 SCMR 798 ref.
(e) Criminal trial‑‑‑
‑‑‑‑ Trial Court could not just conclude that charge was groundless or there was no probability of accused being convicted of any offence‑‑‑Reasons had to be recorded in support of such conclusion.
PLD 1996 Lah. 471 ref.
(f) Administration of justice‑‑‑
‑‑‑‑ No body shall be penalized by act of the Court.
PLD 1970 SC 173 ref.
(g) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑Ss. 249‑A & 417‑‑‑Appeal against acquittal‑‑‑Trial Court had passed order of acquittal under S. 249‑A, Cr.P.C.‑‑‑Such order was passed summarily upon a denial of an opportunity to the prosecution to produce its witnesses whose attendance had to be procured by the Trial Court by adopting all the legal methods‑‑‑Non‑appearance of prosecution witnesses could not be said to be due to the laxity of the complainant‑‑‑Trial Court proceeded in the matter in perfunctory manner‑‑‑Where the acquittal order was passed in mechanical fashion, without application of independent mind to the. facts of the case the same was nullity in the eyes of law and was set aside‑‑‑Case was remanded to the Trial Court to take up the proceedings afresh.
1994 SCMR 798; PLD 1996 Lah. 471; PLD 1970 SC 173 and PLD 1964 SC 829 ref.
(h) Criminal trial‑
‑‑‑‑ No doubt an accused is a favorite child of law, but keeping in view the shape of scale and justice, the complainant is also not to be denied of justice of the Court.
M. Aslam Uns for the State. Malik Shaukat Hussain Awan for Respondents.
Date of hearing: 2nd August, 1999.
2000 M L D 228
[Lahore]
Befdre Tanvir Ahmed Khan, J
MUHAMMAD ILYAS‑‑‑Petitioner
versus
ISLAMIA UNIVERSITY, BAHAWALPUR through Vice‑Chancellor and another‑‑‑Respondents
Writ Petition No.2059 of 1999. heard on 27th July, 1999.
(a) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art.199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Educational institution‑‑‑Deteriorating atmosphere at educational campus‑‑‑Use of arms and kalashnikovs having become order of the day, University Authorities, in order to check such mala fides, were not required to follow the strict procedure of trial‑‑‑Courts were bound to take into consideration social and moral environment prevailing in the society‑‑‑High Court, therefore, could take notice. of ever deteriorating atmosphere at the educational campus.
Ahmad and 3 others v. Vice‑Chancellor, University of Engineering and Technology and another PLD 1981 SC 464 and Amer Siddiq Malik v. Federal Board of Intermediate and Secondary Education, Islamabad and another 1998 SCMR 939 eel.
(b) Educational institution‑‑‑
‑‑‑‑ Indiscipline at University Campus‑‑‑Expulsion of the student from University‑‑‑Committee of Indiscipline and Misconduct of the University provided full opportunity to the petitioner and all concerned to bring their view‑point‑‑‑University on the recommendation of the Committee of Indiscipline and Misconduct expelled the student from the University for a period of three years and appeal filed by him against such order of expulsion was also dismissed‑‑‑Validity‑‑‑Order of expulsion of the student was passed after providing full opportunity to him‑‑‑No allegation of malice or enmity was alleged against any of the four members of the Committee of Indiscipline and Misconduct or the members of the Appellate Committee‑‑‑Where other students too were expelled and fined to different terms, the expelled student was not meted out a discriminatory treatment‑‑‑Order of the University was not interfered by High Court.
Muhammad Zahur Nasir v. Vice‑Chancellor, University of the Punjab and 2 others PLD 1986 Lah. 53 and Vice‑Chancellor, University of Punjab and 2 others v. Muhammad Zahur Nasir 1985 SCMR 802 distinguished.
Ahmad and 3 others v. Vice‑Chancellor, University of Engineering and Technology and another PLD 1981 SC 464 and Amer Siddiq Malik v. Federal Board of Intermediate and Secondary Education, Islamabad and another 1998 SCMR 939; Saeed Nawaz v. Board of I&S Education, Lahore PLD 1981 Lah. 371; M. Ismail Qureshi and others v. M. Awais Qasim, Secretary‑General, Islami Jamiat Tulba Pak and 3 others 1993 SCMR 1781 and PLD 1974 SC 151 ref.
M. A. Farani for Petitioner.
Muhammad Mahmood Bhatti with Dr. Barkat Ali Shafiq, Chairman Physics Department for Respondents.
Date of hearing :- 27th July, 1999
2000 M L D 240
[Lahore]
Before Mian Allah Nawaz and Mian Nasim Sikandar, JJ
MUHAMMAD SIDDIQUE‑‑‑Petitioner
versus
The DISTRICT MAGISTRATE, LAHORE and 3 others‑‑‑Respondents
Intra‑Court Appeals Nos.205 and 206 of 1996 in Writ Petition No. 16605 of 1995, decided on 21st July, 1999.
Law Reforms Ordinance (XII of 1972)‑‑‑
‑‑‑‑S. 3‑‑‑Intra‑Court Appeal‑‑‑Order passed by Single Judge of High Court being eminently correct, just and not suffering from any error of jurisdiction or legal flaw, would not call for interference in Intra‑Court Appeal.
Azhar‑ud‑Din and others v. The State and others 1993 SCMR 1718; PLD 1949 Lah. 282; Sarfraz Hussain Bokhari v. D.M., Kasur and others PLD 1983 SC 172; Muhabat Ali v. The District Magistrate, Campbellpur and another PLD 1976 Lah. 755; Khushi Muhammad v. Assistant Commissioner, Vehari and another PLD 1983 Lah. 192, and Syed Manzoor Hussain Bokhari and another v. S.P. City, Lahore and 2 others 1990 MLD 1807 ref.
Rashid Murtaza Qureshi for Petitioner. Syed Yousaf Kazmi for Respondent No. 1. Muhammad Nawaz Bhatti, A.A. ‑G for Respondents Nos. 2 and 3
Date of hearing: 13th May, 1999.
2000 M L D 244
[Lahore]
Before Khawaja Muhammad Sharif, J
MUHAMMAD RAFIQ‑‑‑Petitioner
versus
MUHAMMAD ASHRAF and another‑‑‑Respondents
Criminal Revision No.277 of 1999, decided on 22nd June, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.540‑‑‑Penal Code (XLV of 1860), 5.302‑‑‑Summoning and examination of witness‑‑‑Wife of deceased was interrogated during course of investigation, but her statement under S.161, Cr.P.C. which was essential for just decision of the case, was not recorded separately and application for calling wife of deceased was dismissed by Trial Court‑‑‑High Court, in exercise of revisional jurisdiction, directed Trial Court to look into the case diaries and to see whether wife of deceased was examined during course of investigation and her statement though was not recorded under S.161, Cr.P.C., but was written in case diary then wife of deceased be summoned as Court‑witness in the interest of justice.
Ch. Anwarul Haq Pannu for Petitioner. Ch. Muhammad Bashir, A.A. ‑G. for the State.
Date of hearing: 22nd June, 1999.
2000 M L D 245
[Lahore]
Before Mian Saqib Nisar, J
Mst. GHULAM BIBI and another‑‑‑Petitioners
versus
ABDUL HAMEED and another‑‑‑Respondents
Writ Petition No.20151 of 1998, decided on 12th February, 1999.
Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O. XLI, R.27‑‑‑Additional evidence‑‑‑Application for production of additional evidence‑‑‑Procedure‑‑‑If parties, wanted any further material to be brought on record as a part of evidence for determination of lis, proper course was to have filed an application for bringing on record said documents as additional evidence.
Sheikh Anwar‑ul‑Haq for Petitioners. S.M. Tayyub for Respondents.
Date of hearing: 12th February, 1999.
2000 M L D 251
[Lahore]
Before Syed Najam‑ul‑Hasan Kazmi and Muhammad Akhtar Shabbir, JJ
NOOR MUHAMMAD and another‑‑‑Appellants
versus
MUHAMMAD ISHAQ and another‑‑‑Respondents
Regular First Appeal No.20 of 1988, decided on 17th May, 1999.
(a) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S.12‑‑‑Suit for specific performance of agreement of sale‑‑=Case of plaintiffs was that defendants who agreed to sell land in issue in favour of plaintiffs had received earnest money and further sum against receipts, but delayed execution of sale‑deed in favour of plaintiffs on one pretext or the other and later on same was refused by defendants due to increase in market price of land‑‑‑Evidence on record had shown that plaintiffs had proved their readiness and willingness to perform their obligation under agreement of sale and also filed suit without delay and that defendants had avoided execution of sale‑deed and after the time for execution had expired an attempt was made by defendants to fabricate evidence for covering up the default‑‑‑Suit, in circumstances, was rightly decreed by Trial Court subject to payment of balance amount of consideration.
(b) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O. VI, R.1‑‑‑Pleadings‑‑‑No party could be allowed to make out a case for which no foundation was laid in pleadings‑‑‑Point requiring factual inquiry, if not raised in written statement defendant could not be permitted to lead evidence in respect of that point and if through oversight evidence was brought on record, same could not be considered‑‑‑Party was not permitted to deviate from his pleadings nor could the Court set up a different plea for a party and decide the suit on that basis muchless at appellate stage.
Haji Gaffar‑Haji Habib Janu v. Khawaja Wakil Ahmad PLD 1959 (W.P.) Kar. 611; Ghulam Mustafa v. Haji Mian Muhammad and another PLD 1969 Pesh. 241; Saiyed Ali Amir v. Messrs Dalmia Cement Ltd. PLD 1961 (W.P.) Kar. 255; Allah Ditta v. Mst. Rasoolan Bibi and 7 others 1976 SCMR 159; Siddik Mahmood Shah v. Mst. Saram and others AIR 1930 PC 57(1); Mst. Jannat Bibi v. Sher Muhammad and others 1988 SCMR 1696; Abdullah v. Maqbool Ahmed PLJ 1987 605 and Darey Khan v. Muhammad Hussain and others 1998 CLC 1439 ref.
(c) Contract Act (IX of 1872)‑‑‑
‑‑‑‑‑S.11‑‑‑Person competent to contract‑‑‑Benefit of minor‑‑‑Any person who had not attained majority, though could not enter into an agreement of sale to sell his property nor sale‑deed purportedly executed by minor regarding his property could operate against his interest, but if a minor was beneficiary of transaction and was vendee he could successfully avail the benefits.
Munni Kunwar v. Madan Gopal ILR 38 All. 62; Narain Das and another v. Mst. Dhania ILR 38 All. 154; Bhola Ram Hurbans Lal and another v. Bhagut Ram and others AIR 1927 Lah. 240; Mst. Amanat v. Mahboob Hussain PLD 1959 Kar. 362 and Muhammad Hussain v. Saleem Jan and others PLD 1995 Pesh. 98 ref.
(d) Contract Act (IX of 1872)‑‑‑
‑‑‑‑S. 55‑‑‑Time for performance of contract‑‑‑Ordinarily time was not essence of contract pertaining to immovable property unless parties had made their intentions so clear and the agreement provided for ipso facto rescission of contract due to non‑adherence to the time clause in agreement.
Seth Essabhoy v. Saboor Ahmad PLD 1972 SC 39 and Abdul Hamid v. Abbas Bhai‑Abdul Hussain Sodawaterwala PLD 1962 SC 1 ref.
(e) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑Ss. 12 & 22‑‑‑Specific performance of contract‑‑‑Discretion of Court exercise of‑‑‑Relief of specific performance no doubt was discretionary, but discretion could not be exercised arbitrarily‑‑‑Discretionary jurisdiction under S.22, Specific Relief Act, 1877 conferred on Courts had to be exercised judicially on recognized principles of equity and not on erroneous assumption and presumptions.
Ch. Khurshid Ahmad for Appellants. Mian Nisar Ahmad and Amin‑ud‑Din Khan for Respondents.
2000 M L D 265
[Lahore]
Before Ihsan‑ul‑Haq Chaudhry, J.
SYED CATERERS‑‑‑Petitioner
versus
GOVERNMENT OF PAKISTAN through Secretary, Ministry of Railways, Government of Pakistan, Pakistan Secretariat, Islamabad and 5 others‑‑‑Respondents
Writ Petitions Nos. 12705 to 12707 of 1999, decided on 16th July, 1999.
Contract Act (IX of 1872)‑‑‑
‑‑‑‑S. 37‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Grant of contract of dining car attached to railways train‑‑Performance of such contract‑‑‑Petitioner being highest bidder was granted contract of dining car attached to railways train and petitioner who deposited required 25 % of bid amount and fee of auctioneer was duly informed that his bid had been accepted‑‑‑Petitioner waited for execution of contract documents and delivery of possession of dining car to him so that he could perform his part of contract, but Authorities did not take any steps despite reminders by petitioner‑‑‑Authorities had contended that in order to improve the system and to give better facilities to public, policy had undergone a change and that it was decided not to proceed with such‑like contracts‑‑‑Further contention of the Authorities was that the petitioner was informed about said situation through a letter and that amount deposited by petitioner had been refunded‑‑‑Petitioner had denied receipt of any said letter and refund of any amount to him‑‑‑Authorities, however, could not prove refund of amount to petitioner‑‑‑Effect‑‑‑Bid of petitioner having been accepted, petitioner had become entitled to possession of dining car to perform his part of contract and petitioner having performed his part of contract, an enforceable contract had come into existence between parties and said .process was irrevocable‑‑‑inaction on part of Authorities was illegal and mala fide especially when controversy involved in case of petitioner was exactly in pari materia in case earlier decided by High Court in which Constitutional petition filed against the Authorities was allowed with heavy costs‑‑‑Constitutional petition was allowed accordingly with heavy costs.
Commissioner of Income‑tax (Central), Karachi v. Messrs Habib Insurance Co. Ltd., Karachi PLD 1969 Kar. 278; Fida Ali Yusufali and others v. Graxalt Refineries Ltd. PLD 1967 Kar. 637; Shaukat Ali and others v. Government of Pakistan through Chairman, Ministry of Railways and others PLD 1997 SC 342; M.A. Naseer v. Chairman, Pakistan Eastern Railways PLD 1965 SC 83; Pakistan National Shipping Corporation v. Rent Controller, Lahore PLD ]992 Lah. 305; Zamir Ahmad Khan v. Government of Pakistan 1978 SCMR 327 and 1994 CLC 848 ref.
Sh. Sair Ali for Petitioner. Sh. Anwar‑ul‑Haq, Dy.A‑G. for Respondents. Masood Mirza for Respondents Nos.2 to 5. Arif Saeed for Respondent No.6.
Date of hearing: 16th July, 1999.
2000 M L D 272
[Lahore]
Before Dr. Munir Ahmad Mughal, J
Mrs. NILOFER SAEED‑‑‑Petitioner
versus
ARIF ASLAM KHAN and 4 others‑‑‑Respondents
Civil Revision No.417 of 1999, heard on 1st July, 1999.
(a) Arbitration Act (X of 1940)‑‑‑
‑‑‑‑Preamble & S.13‑‑‑Role of arbitrator‑‑‑Arbitrator is to settle dispute between the parties amicably by avoiding all types of technicalities of procedural law but within the four corners of substantive law and to provide a domestic forum for speedy disposal of dispute‑‑‑Arbitration is undertaken through persons in whom both the parties repose their trust‑‑‑Course that the Courts should generally follow, was to encourage settlement of dispute by arbitration, wherever the parties had themselves agreed to do so, as same was according to the scheme of Arbitration Act, 1940.
(b) Arbitration Act (X of 1940)‑‑‑
‑‑‑‑S. 14‑‑‑Filing of award in Court by arbitrator‑‑‑Arbitrator is not a party to award‑‑‑Where award was filed in the Court by arbitrator, it was the matter only between the parties to the award.
Ashfaq Ali Qureshi v. Municipal Corporation, Multan end another 1985 SCMR 597; Sh. Mahboob Alam v. Sh. Mumtaz Ahmad PLD 1960 (W.P.) Lah. 601 and Imtiaz Ahmad v. Ghulam Ali and 2 others PLD 1963 SC 382 ref.
(c) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O. IX, R. 9‑‑‑Suit dismissed in default, restoration of‑‑‑Power of Court to restore such suit‑‑‑Provisions of 0. IX, R. 9, C.P.C. provided restoration of a suit dismissed in default where sufficient cause was shown to die, Court for non‑appearance on the date when the suit was called for hearing‑‑‑Although power to restore such suit was discretionary yet such discretion was judicial in nature.
Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and others AIR 1937 PC 276 and Sardar Muhammad Sadiq Khan and others v. K.B. Abdul Hayee Khan and others PLD 1957 SC (Pak.) 186 ref.
(d) Arbitration Act (X of 1940)‑‑‑
‑‑‑‑S. 14‑‑‑Civil Procedure Code (V of 1908), O. IX, R. 9‑‑‑Application under S. 14, Arbitration Act, 1940, was dismissed by Court due to nonappearance of the arbitrator and on the date which was not fixed for hearing‑‑‑Validity‑‑‑Arbitrator being not legally bound even to pursue the matter and dismissal of application having been made on the date which was not fixed for hearing restoration of the application under O. IX, R. 9, C.P.C. was factually correct and legally sound.
Ch. Bashir Ahmad for Petitioner.
Kh. Tariq Rahim and Saleem Abdur Rehman for Respondents Nos. 1, 3 and 4.
Ch. Fazal Hussain for Respondent No.2.
Miss Rukhsana Lone for Respondent No.5.
Date of hearing: 1st July, 1999.
2000 M L D 281
[Lahore]
Before Nazir Ahmad Siddiqui, J
MUHAMMAD HUSSAIN ---Petitioner
versus
WAHEED AHMAD and 3 others---Respondents
Civil Revision No. 1673-D of 1993, decided on 19th May, 1999.
(a) Qanun-e-Shahadat (10 of 1984)---
----Arts. 85, 86 and 129---Registered sale-deed---Validity---Where sale deed was a registered document, presumption of truth was attached to the endorsement thereupon.
(b) Civil Procedure Code (V of 1908)---
----S. 115---Revision---Concurrent findings of facts---Interference in revision---Suit as well as appeal of the petitioners was dismissed by the Trial Court and the Lower Appellate Court respectively---Concurrent findings of both the Courts below were based on evidence---Such conclusions were immune from scrutiny in a revision application under S.115, C. P. C., unless the same were perverse or arbitrary in nature.
Mst. Asghari Begum Ansari v. Ahsan Moqeem Ansari and 7 others 1984 CLC 762 and Shamshad Ali Shah and others v. Syed Hassan Shan and others PLD 1960 (W.P.) Lah. 300 distinguished.
Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139; Jam Pari v. Muhammad Abdullah 1992 SCMR 786; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and 1994 SCMR 818 ref.
(c) Limitation---
---- Once limitation starts running no subsequent event could stop the same.
(d) Limitation Act (IX of 1908)---
----S.5---Civil Procedure Code (V of 1908), S.115---Condonation of delay--Revision filed was delayed by 42 days---Plea taken by the petitioners for such delay was that the certified copies of the record of Trial Court were applied for and received after the receipt of certified copies of judgment--Validity---Such a ground taken in the application for condonation of delay could not provide a valid excuse in filing revision petition---Revision having been filed after the prescribed period of 90 days, delay was not condoned in circumstances.
1990 CLC 1536 and 1990 CLC 1828 ref.
Malik Amjad Pervaiz for Petitioner.
Muhammad Aslam Nagi for Respondent.
2000 M L D 292
[Lahore]
Before Dr. Munir Ahmad Mughal, J
ANJUMAN COOPERATIVE SOCIETY through Riaz Ahmed ‑‑‑Petitioner
versus
DEPUTY REGISTRAR,COOPERATIVE SOCIETIES, BAHAWALPUR and 2 others‑‑‑Respondents
Writ Petition No.3678 of 1999, decided on 24th August, 1999.
Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Creditor and debtor‑‑‑Discharge of loan liability‑‑‑Present inability of debtor to pay loan amount ‑‑‑Qur'anic Injunctions to meet such situation‑‑‑Petitioner‑Society obtained a loan from the respondent‑Bank which was agreed to be returned in specified instalments by fixed dates‑‑‑Petitioner failed to deposit the full amount of first instalment because of its weak financial position due to bad crop‑‑‑Creditor‑Bank threatened the debtor to deposit the total amount of loan in lump sum, otherwise it would be proceeded against according to law‑‑‑Such threat by creditor was challenged in Constitutional petition‑‑‑Considering the uncontroverted inability of the debtor to pay loan amount in lump sum due to its financial stringency and its serious efforts to return the loan amount, and following the Qur'anic injunction wherein it is commanded "And if the debtor is in straitened circumstances then (let there be) postponement to (the time of) ease", II: 280) High Court ordered that the loan amount be paid in specified instalments by the dates fixed by it.
Khan Muhammad Hussain Azad for Petitioner.
Qamar Hameed Hashmi for Respondents.
2000 M L D 294
[Lahore]
Before Malik Muhammad Qayyum, J
SHAMA SALMA and another-‑‑Petitioners
versus
TAJUL MALOOK, DEPUTY COMMISSIONER, SHEIKHUPURA and 7 others‑‑‑Respondents
Writ Petition No.832 of 1999, decided on 28th October, 1999.
(a) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Eviction from official residence‑‑Petitioner, a Government employee, was allotted an official residence where she was living with her family‑‑‑Deputy Commissioner cancelled such allotment of the petitioner just to accommodate his personal assistant‑‑Petitioner was forcibly dispossessed from the residence‑‑‑Provincial Government in an order restrained the Deputy Commissioner from continuing with his efforts to oust the petitioner‑‑‑Order of the Provincial Government was not only clear and unambiguous but also in a way disparaging the Deputy Commissioner‑‑‑Order passed by Deputy Commissioner to dispossess petitioner was without lawful authority and of no legal effect‑‑‑Petition was allowed accordingly.
(b) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art.4‑‑‑Fundamental rights‑‑‑Dealing in accordance with law‑‑‑Every citizen has to be dealt in accordance with law and not on the basis of whims and caprice of the Executive Authorities.
Ali Ahmed Awan for Petitioner. Mian Shahid lqbal, A,A.‑G, for Respondents Nos, 1, 2 and 4 to 6.
Muhammad Rashid Chaudhry for Respondent No.3, Date of hearing: 18th October, 1999.
2000 M L D 296
[Lahore]
Before Syed Najam-ul-Hassan Kazmi, J
Mian MUHAMMAD SALEEM---Appellant
versus
ZAFAR RIAZ---Respondent
First Appeal from Order No.34 of 1997, heard on 2nd September, 1999.
Cantonments Rent Restriction Act (XI of 1963)---
----S.24---Relationship of landlord and tenant---Proof of existence---Tenant denied relationship of landlord and tenant between the parties contending that status of tenant was that of a mortgagee and not that of a tenant---Contention of tenant that property was mortgaged with him, could not be accepted firstly because no mortgage was created by any registered document whereas no mortgage could be created without registered document and secondly if it was a mortgage, tenant could claim interest on mortgaged amount which was never claimed by him---Agreement arrived at between the parties had clearly provided that landlord was owner of property in dispute and tenant who had agreed to pay Rs.10,000 per month to landlord could not sell property and that ownership rights of landlord would stand protected---Undertaking of tenant to pay Rs.10,000 per month to landlord, could be construed nothing except rental of property---Findings of Rent Controller that relationship of landlord and tenant existed between the parties not suffering from any misreading of record or error of law could not be interfered with by High Court in appeal.
Mirza Sadaqat Ali for Appellant. S
h. Muhammad Suleman for Respondent.
Date of hearing: 2nd September, 1999.
2000 M L D 309
[Lahore]
Before Ghulam Mahmood Qureshi, J
Messrs SHAHBAZ TRADERS‑‑‑Petitioner
versus
ZILA COUNCIL, MULTAN through Chairman' ‑and 2 others‑‑‑Respondents
Writ Petition No. 5250 of 1999, heard on 23rd June, 1999.
Punjab Local Government Ordinance (VI of 1979)‑‑‑
‑‑‑‑S. 166‑‑‑Punjab Local Councils (Export Tax) Rules, 1990, Rr. 14, 15 & 16‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Maintainability‑‑‑Lease for collection of export tax‑‑‑Cancellation of lease‑‑Contractual obligation‑‑‑Enforceability‑‑‑Lease for collection of Export Tax granted to petitioner having been cancelled by Authority, petitioner had challenged said cancellation in Constitutional petition‑‑‑Agreement whereby lease was granted to petitioner had provided arbitration clause whereby in case of any dispute between parties the matter was to be referred to arbitrator‑‑‑Even otherwise remedy by way of filing appeal was provided under S. 166, Punjab Local Government Ordinance, 1979, and remedy of appeal and revision was also provided under Rr. 14 & 15 of Punjab Local Councils (Export Tax) Rules, 1990, which were not availed by petitioner‑‑In case petitioner had any grievance he could have invoked arbitration clause provided in agreement and referred matter to arbitrator or could avail remedy of appeal or revision available to him under law‑‑‑Constitutional jurisdiction of High Court could not be invoked to enforce contractual obligation‑‑Constitutional petition filed by petitioner, was not maintainable in circumstances.
Mumtaz Ahmad v. Zila Council, Sahiwal through Administrator and others 1999 SCMR 117; Haji Muhammad Yousaf v. The Province of Punjab and others PLD 1997 Lah. 674; Malik Sakhi Muhammad and another v. Zila Council, Rahimyar Khan and 2 others 1998 CLC 1628 and M/s. Wak Orient Power and Light Ltd. and another v. Government of Pakistan and another 1998 CLC 117 ref.
Muhammad Khalid Alvi for Petitioner. Tahir Haider Wasti, A.A.‑G. for Respondents
Date of hearing: 23rd June, 1999.
2000 M L D 318
[Lahore]
Before Mian Saqib Nisar, J
KARAM BAKHSH and another‑‑‑Petitioners
versus
Mst. SAIRA BIBI‑‑‑Respondent
Civil Revision No.226 of 1995, decided on 10th June, 1999.
Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S. 42‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S. 42‑‑‑Suit for declaration‑‑‑Attestation of mutation‑‑‑Proof‑‑‑Brothers of plaintiff had claimed that plaintiff had sold out land in dispute to them and after receiving sale price from them had got mutation in respect of said land sanctioned in their favour‑‑‑Plaintiff in her suit for declaration had alleged that mutation showing sale of land by her in favour of defendants was fraudulent and illegal and had denied having entered into any sale transaction‑‑‑Plaintiff was an illiterate lady and no evidence was on record to show that she had advantage of independent advice by any close male member of family‑‑Husband and son of plaintiff were not shown to be present at any stage of the matter‑‑‑Defendants who were duty bound to prove beyond any shadow of doubt that transaction of alleged sale in their favour was transparent and validly effected, had failed to prove same by any evidence‑‑‑Appellate Court below in circumstances had rightly found that defendants/who were beneficiaries of mutation, had failed to prove beyond doubt validity thereof‑‑‑Judgment and decree passed by Appellate Court below not suffering from any error, could not , be interfered with by High Court
Muhammad Hanif Niazi for Petitioner.
Sh. Hamid Mukhtar and Muhammad Atif Amin for Respondent
Date of hearing: 8th April, 1999
2000 M L D 322
[Lahore]
Before Ihsan-ul-Haq Chaudhry and Ch. Ijaz Ahmad, JJ
NAZIR AHMAD and 8 others---Petitioners
versus
COMMISSIONER, LAHORE DIVISION, LAHORE and 3 others---Respondents
Writ Petition No. 4665 of 1978, decided on 23rd September, 1999.
(a) Cooperative Societies Rules, 1927---
----S. 46---Land Acquisition Act (I of 1894), S. 4---Acquisition of land by Society for religious purpose---Validity---Bye-laws of the Society did not permit to acquire land---Effect---Provisions of R.46, Cooperative Societies Rules, 1927, having not permitted Society to be involved in controversial matters of religious character, Cooperative Society was under legal disability to undertake such a venture---Acquisition of land by such Society was illegal in circumstances.
Fida Ali Yusufali v. Graxalt Refineries Ltd. PLD 1967 Kar. 637 ref.
(b) Land Acquisition Act (I of 1894)---
----Preamble & S. 42---Land acquisition---Type---Provisions of Land Acquisition Act, 1894, cater for two types of acquisition; firstly for public purpose; and secondly for a company or a registered Society---Acquisition of land for company or a registered Society---Procedure---Company or a Society has to enter into an agreement with the Government under S.,42 of Land Acquisition Act, 1894 whereby that company or Society undertakes to abide by the terms and conditions of acquisition.
(c) Land Acquisition Act (1 of 1894)---
----Ss. 5, 5-A & 40---Inquiry by Government---Non-existence of factors required for the satisfaction of the Government---Effect---Non-existence of such factors proved that there was no inquiry under S.40, Land Acquisition Act, 1894, and non-compliance of Ss. 5 & 5-A of said Act, had vitiated entire proceedings of land acquisition.
(d) Constitution of Pakistan (1973)---
----Art. 2---Executive is answerable and any order or action of the executive must not lack transparency.
Fouji Foundation and others. v. Shamim-ur-Rehman PLD 1983 SC 457 ref.
(e) Administration of justice---
---- Purpose which could not be achieved directly under law should not be allowed to be achieved in an indirect, fraudulent and underhand manner.
Malik Ghulam Mustafa Khar v. Pakistan PLD 1988 Lah. 49 ref.
(f) Land Acquisition Act (I of 1894)---
----Preamble & S. 6---Constitution of Pakistan (1973), Art. 24---Depriving a `.;person of his property---Acquisition of land other than for public purpose--Validity---Any such acquisition was ultra vires of the provisions of Art. 24 of the Constitution as well as Land Acquisition Act, 1894---No scope for acquisition for other than public purpose and that too under law, which ensured proper compensation.
(g) Land Acquisition Act (I of 1894)--
----Preamble---Constitution of Pakistan (1973), Art. 2A---Acquisition of land---Whether provisions of Land Acquisition Act, 1894, are in conformity with Injunctions of Islam---Land Acquisition Act, 1894, is based on the rule to rob Peter to pay Paul---No scope for such type of action in an Islamic State, as the same offends the Injunctions of Islam---Rule to enrich privileged one at the cost of poor is legacy of imperialism and such rule has no place in an ideological State like Pakistan.
Jibendra Kishor Achharyya Chowtheory v. The Province of East Pakistan PLD 1957 SC (Pak.) 9 and Muhammad Akbar v. The Commissioner, Rawalpindi Division PLD 1976 Lah. 747 ref.
(h) Land Acquisition Act (I of 1894)---
----S. 4---Issuance of notice---Purpose of acquisition of land---Change of purpose---Effect---Such purpose was specified in the notice issued under S.4, Land Acquisition Act, 1894---Where the purpose of land acquisition had been changed, the earlier file should have been closed and the case was to be processed afresh---Earlier notice stood impliedly withdrawn in circumstances.
Sahib Dad Khan v. The Commissioner, Rawalpindi Division 1969 SCMR 317 ref.
(i) Land Acquisition Act (I of 1894)---
----S. 4---Constitution of Pakistan (1973), Art. 25---Acquisition of land--Discrimination---Permissibility---Land of influential persons was excluded from the scheme and that of downtrodden class remained in the scheme--Validity---Constitution of Pakistan (1973) did not permit two standards, vide guarantee given by its Art. 25 under which discrimination would not be possible.
Jibendra Kishor Achharyya Chowtheory v. The Province of East Pakistan PLD 1957 SC (Pak.) 9; Muhammad Akbar v. The Commissioner, Rawalpindi Division PLD 1976 Lah. 747; Sahib Dad Khan v. The Commissioner, Rawalpindi Division 1969 SCMR 317 and I.A. Shewani and others v. Government of Pakistan 1991 SCMR 1041 ref.
(j) Land Acquisition Act (I of 1894)---
----S. 4---Constitution of Pakistan (1973), Arts. 23, 24 & 199--Constitutional petition---Acquisition of land---Purpose---Land was not the need of the Society but it was acquired for the purpose of establishment of a residential colony and the same was for the benefit of a few individuals--Validity---Acquisition of land for such a purpose was like committing dacoity on the valuable rights guaranteed by Arts. 23 & 24 of the Constitution---Where acquisition of land was mala fide and beyond the purpose of law, such acquisition was set aside.
E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536; Government of West Pakistan through Collector, Gujranwala v. Land Acquisition Collector, District Gujranwala PLD 1979 Lah. 54; Divisional Personnel Officer, Pakistan Railways, Lahore v. v. Chairman, Punjab Labour Appellate Tribunal, Lahore 1987 CLC 1397; Chairman, WAPDA v. Advisory Board, Punjab, Lahore 1987 CLC 1503; Abdul Rauf v. Abdul Hamid Khan PLD 1965 SC 671; Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14; The State v. Zia-urRehman PLD 1973 SC 49; Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division PLD 1972 SC 279; The Province of Punjab through Secretary to the Government of Punjab, Housing and Physical Planning Department v. Ch. Zahoor Elahi PLD 1981 Lah. 696; Malik Ghulam Mustafa Khar v. Pakistan PLD 1988 Lah. 49; Collector Customs, Excise and Sales Tax, Peshawar v. Messrs Flying Kraft Paper Mills (Pvt.) Ltd., Charsadda, District Peshawar 1999 SCMR 709; Idrees Ahmad v. Hafiz Fida Ahmad Khan PLD 1985 SC 376; Ahbab Cooperative Housing Society Ltd. v. Commissioner, Lahore Division, Lahore PLD 1978 Lah. 273; Ahbab Cooperative Housing Society, Ltd. v. Commissioner, 1990 ALD 612 (2); Hussain Bakhsh v. Settlement Commissioner, Rawalpindi PLD 1970 SC 1; Malik Khanan v. Malik Baz Muhammad Khan PLD 1983 Quetta 30; Muhammad Bakhsh v. Member, Board of Revenue, Lahore PLD 1992 Lah. 420; Abdul Rehman v. Member (Revenue), Board of Revenue, Punjab, Lahore PLD 1989 SC 246; Sardar Chakar Khan v. . Commissioner, Sibi Division, Sibi 1979 CLC 829; Asif .Jan Siddiqi v. Government of Sindh PLD 1983 SC 46; Muhammad Shafi v. Ataullah 1984 SCMR 1124; K.P. Boga v. Ejaz Ahmad Khan, Deputy Settlement Commissioner, Lahore 1991 MLD 835; Abdul Majid v. Qazi Abbas Hussain Shah 1995 SCMR 429; Mian Muhammad Nasrullah v. District Magistrate, Lahore 1970 SCMR 214; Raja Muhammad Amir v. Province of the Punjab PLD 1983 Lah. 355; Ghulam Bhik v. Government of West Pakistan through Secretary, Revenue Department, Lahore PLD 1973 Lah. 617; Syed Muhammad Khurshid Abbas Gardezi v. Multan Development Authority PLD 1983 SC 151; Lahore Improvement Trust, Lahore through its Chairman v. The Custodian, Evacuee Property, West Pakistan, Lahore PLD 1971 SC 811; The Chairman, East Pakistan Railways Board, Chittagong v. Abdul Majid Sardar, Ticket Collector, Pakistan Eastern Railways, Laksom PLD 1966 SC 725; Dr. Muhammad Nasim Javed v. Lahore Cantonment Housing Society Ltd. PLD 1983 Lah. 552; Muhammad Sharif v. Afsar Textile Mills Ltd. 1985 SCMR 1181; Brij Nath Sarin v. Uttar Pradesh Government AIR 1953 All. 182; Sheo Badan Tewari v. Mt. Sahebzadi Kuer AIR 1923 All. 523; Somawanti v. State of Punjab AIR 1963 SC 151; Bhagwat Dayal v. Union of India AIR 1959 Pb. 544; F.K. Abbasi v. M.I. Malik 1985 CLC 1603; Allah Ditta v. Province of Punjab PLD 1997 Lah. 499; Province of Punjab and 2 others v. Ch. Zahoor Elahi 1982 SCMR 173; Pakistan v. Nawabzada Muhammad Umer Khan 1992 SCMR 2450 and Nawabzada Muhammad Umar Khan v. Pakistan PLD 1982 Pesh. 1 ref.
(k) Civil Procedure Code (V of 1908)---
----S. 11---Constitution of Pakistan (1973), Art. 199---Land Acquisition Act (I of 1894), S.48---Constitutional petition---Principle of res judicata--Applicability---Earlier Constitutional petition contained controversy with some other person and that too with regard to S.48, Land Acquisition Act, 1894---Decision of Supreme Court in earlier proceedings related to some other proceedings---Points raised in the fresh petition had not been earlier raised and decided---Fresh Constitutional petition was maintainable in circumstances.
Wasi Ahmad Rizvi v. Government of Pakistan PLD 1972 Kar. 589 ref.
(1) Civil Procedure Code (V of 1908)---
----O.11, R.2 & O, XXIII, R. 1(3)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Earlier Constitutional petition was withdrawn with permission to file fresh one---Effect---Where subsequent petition was filed with the permission of the Court after the withdrawal of the earlier petition, subsequent petition was not hit by provisions of O.XXIII R.1, C.P.C.---Fresh Constitutional petition was maintainable in circumstances.
(m) Land Acquisition Act (I of 1894)---
----S. 4---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Invalid acquisition proceedings---Effect---Where the acquisition proceedings were not valid, Constitutional petition was maintainable.
Sardar Begum v. Lahore Improvement Trust, Lahore PLD 1972 Lah. 458 ref.
(n) Constitution of Pakistan (1973)---
----Art. 199---Government functionaries, action of---Protection of law to such action---Scope---Action of Government functionaries were only protected if the same were valid and not otherwise.
Haji Ghulam Zamin v. A.B. Khondkar PLD 1965 Dacca 156 and Ch. Muhammad Anwar v. Government of West Pakistan PLD 1963 Lah. 109 ref.
(o) Constitution of Pakistan (1973)---
----Art. 199---Where proceedings were ultra vires, mala fide, fraud on statute, such proceedings could not be allowed to stand on some technicalities.
Sultan Mir v. Umer Khan 1992 SCMR 1206 and Noorul Amin v. Muhammad Hasham 1992 SCMR 1744 ref.
(p) Rules of procedure---
----Function---Rules of procedure are meant to advance justice and preserve rights of litigants, and are not meant to entrap them in blind corners so as to frustrate the purpose of law and justice.
Mir Mazar v. Azim PLD 1993 SC 332; Allah Ditta v. Barkat Ali and 3 others 1992 SCMR 1974; Dr. Zia Suleman Farooqi v. Punjab Public Service Commission and others PLD 1994 Lah. 55 and Nazir Ahmad and another v. Muhammad Tahir and another PLD 1992 Lah. 89 ref.
Jehangir A. Jhoja for Petitioners.
Rana Muhammad Arif, Addl. A.-G. for Respondents Nos. l to 3.
M. Saleem Sehgal for Respondent No.4.
Dates of hearing: 19th, 20th, 21st and 22nd July, 1999.
2000 M L D 343
[Lahore]
Before Tanvir Ahmad Khan, J
Mian ,MANZOOR AHMED WATTOO---Petitioner
versus
THE STATE---Respondent
Criminal Miscellaneous Nos.1551-B, 1553-B and 1767-B of 1999, decided on 15th June, 1999..
(a) Criminal Procedure Code (V of 1898)---
----S.497---Penal Code (XLV of 1860), S.409/109/420/467/471---Prevention of Corruption Act (II of 1947), S.5(2)---Bail---Accused being the Chief Executive of the Province was exercising dominion/control over the funds and was the trustee of the property and funds of the Province which he could not usurp on pseudo applications for his personal use---Alleged applicants in their statements recorded under S.164, Cr.P.C. had fully supported the prosecution case and other witnesses too in their statements under 5.161, Cr.P.C. had implicated the accused---Evidence available on record showed that accused had misappropriated Rs.55 lacs from the Fund and none of the persons in whose names cheques were issued had received a single penny---Accused had remained Chief Minister after two angina pectrois attacks and his recent medical report did not justify release on bail even on medical grounds---Bail was declined to accused in circumstances.
Tariq Mehmood v. The State and another PLD 1962 (W.P.) Lah. 939; Amir-ud-Din v. The State PLD 1967 Lah. 1190; Mundviwalla Entertainment (Private) Limited and 2 others v. Deputy Commissioner, Karachi South and another 1999 CLC 908; Amanullah Khan and others v. The Federal .Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092; Holy Qur'an: Surah , Ayat 26; Pervez Iqbal and others v. The State 1995 PCr.LJ 430 and Muhammad Arshad v. The State 1997 SCMR 1275 ref.
(b) Criminal Procedure Code (V of 1898)---
----S.497---Penal Code (XLV of 1860), S.409/109/420/467/471---Prevention of Corruption Act (II of 1947), S.5(2)---Bail---No evidence was available on record to show that the accused had either written the fake applications for getting the amount from the Fund themselves or recommended the same--Allegation of the said applications having been given through the accused was also not supported by the record---Accused were admitted to bail in circumstances.
Ch. Mushtaq Ahmad Khan for Petitioner.
Kh. Sultan Ahmad, Special Public Prosecutor alongwith Sh. Khalil Ahmad for Respondents.
2000 M L D 357
[Lahore]
Before Muhammad Naseem Chaudhri, J
MUHAMMAD SALEEM---Petitioner
versus
DEPUTY DIRECTOR, FIA/CBC, MULTAN and another---Respondents
Writ Petition No.6589 of 1999, heard on 22nd July, 1999.
(a) Criminal Procedure Code (V of 1898)
----S. 156---Investigation---Sending of decoy witness to trap the accused--- Unethical and against the spirit of Islamic justice---Such procedure adopted by police deprecated which vitiates the whole exercise.
Muhammad Iqbal v. The State 1989 PCr.LJ 1334 ref.
(b) Foreign Exchange Regulation Act (VII of 1947)---
----S. 23(1)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---Sending of a decoy witness in order to trap the accused was unethical and against the spirit of Islamic justice---Such important violation of Islamic concept of justice could neither be treated as the basis of the commission of offence nor the corroborative piece of evidence---Recovery of US Dollars from the accused, therefore, was not above board ---S.H.O. could not enter the shop to effect the search or take into his possession anything from the shop of accused without first obtaining the search warrant from a competent Magistrate containing the specified manner of search---Requirement of joining two respectable persons from the area with the search proceedings was not complied with---Currency notes spent for purchasing 25 US Dollars were neither marked nor recovered from the accused---Nothing was presently available on record about the recovery of 7500 US Dollars from the safe of the accused ---F.I.R. registered against the accused was quashed in circumstances.
Muhammad Iqbal v. The State 1989 PCr.LJ 1334 ref.
(c) Constitution of Pakistan (1973)
----Art.199---Constitutional jurisdiction---Quashing of F.I.R.---Where on the basis of non-observance of some legal formality accused is entitled to be acquitted after full-fledged trial, it is his statutory right to get the F.I.R. quashed at the initial stage.
Ch. Faqir Muhammad for Petitioner.
Ch. Saghir Ahmed, Standing Counsel for Respondents.
Date of hearing: 22nd July, 1999.
2000 M L D 367
[Lahore]
Before Sheikh Abdur Razzaq, J
MUHAMMAD NAWAZ and another‑‑‑Petitioners
versus
THE STATE‑‑‑Respondent
Criminal Miscellaneous No.868‑B of 1999, decided on 5th October, 1999.
(a) Criminal Procedure Code (V of 1898)‑‑‑‑
‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), 5.302/324/148/149‑‑‑Bail‑‑‑One accused had not been attributed any injury either to the deceased or to any prosecution witness and he had not played any role in the commission of the offence‑‑‑Other accused had allegedly caused an injury, to a prosecution witness only‑‑‑Accused were in judicial lock‑up for the last two years and four months‑‑‑Filing of Constitutional petition by accused in High Court had, no doubt, stayed the proceedings in the Trial Court, but the same could not disentitle them to the relief sought by them‑‑‑Accused were enlarged on bail in circumstances.
Muhammad Riaz v. The State PLD 1995 Kar. 349; Ehsan Ali v. The State 1992 PCr.LJ 1511 and Zahid Hussain Shah v. The State PLD 1995 SC 49 ref.
(b) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/324/148/149‑‑‑Bail‑‑‑Accused was alleged to have caught hold of the deceased and dragged him inside the house where he was finally done to death‑‑‑Had the accused not done so the deceased might have saved his life‑‑‑Bail was declined to accused in circumstances.
Muhammad Ilyas Siddiqui for Petitioners.
Sardar Muhammad Ishaque Khan for the Complainant.
Malik Shaukat Hussain Awan for the State.
2000 M L D 374
[Lahore]
Before Dr. Munir Ahmad Mughal, J
MUNIR AHMAD‑‑‑Petitioner
versus
THE STATE‑‑‑Respondent
Criminal Miscellaneous No.908‑B of 1998, decided on 28th May, 1998
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)‑‑‑Penal Code (XLV of 1860), 5.420/468/471/494/495‑‑Bail‑‑Abductee had denied the Nikahnama showing her marriage with her husband‑‑‑Both the Nikhnamas showing the marriage of abductee with the accused as well as with her husband, according to the report of Finger Print Bureau, bore her signatures‑‑‑Case of accused, thus, needed further inquiry ‑‑‑Co‑accused had already been released on bail‑‑‑Investigation in the case being complete, nothing was to be recovered from the accused‑‑‑Bail was granted to accused in circumstances.
Altaf Ibarhim Qureshi for Petitioner Jamil Ahmad Chohan for the State.
2000 M L D 376
[Lahore]
Before Ghulam Mahmood Qureshi, J
AMIR‑UD‑DIN‑‑‑Petitioner
versus
MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB, LAHORE and another‑‑‑Respondents
Writ Petitions Nos.767 of 1998 and 4550 of 1999, heard on 30th June, 1999.
(a) West Pakistan Land Revenue Rules, 1968‑‑‑
‑‑‑‑R.17‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Lambardar, appointment of‑‑‑Respondent was appointed as a Lambardar by the Board of Revenue in a revision petition filed by the respondent against the order passed by the District Collector‑‑‑Validity‑‑Respondent had no sufficient property in the village to meet even "Zar‑i-Barth" and also he had permanently shifted from the Chak (village)‑‑‑Order of Board of Revenue being without any cogent reason was set aside as being without lawful authority and of no legal effect.
Ghulam Hussain v. Ghulam Muhammad and another 1976 SCMR 75; AIR 1962 Mys. 233 and N. Balakrishna Hegde v. K; Shankdra Hegde and others and PLD 1999 SC 484 ref.
(b) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 199‑‑‑Constitutional petition ‑‑‑Laches‑‑‑Constitutional petition was filed after a delay of one year and four months‑‑‑Effect‑‑‑Where no plausible explanation was given by petitioner for such delay, constitutional petition was dismissed.
Chaudhry Muhammad Hussain Jahania for Petitioner.
Khadim Nadim Malik, Addl. A.G. for Respondent No. 1.
Chaudhry Abdul Sattar Goraya for Respondent No.2.
2000 M L D 382
[Lahore]
Before Syed Najam‑ul‑Hassan Kazmi, J
ABDUL QADEER‑‑‑Appellant
versus
Haji MUHAMMAD ISMAIL ‑‑‑Respondent
Second Appeal from Order No. 110 of 1998, heard on 15th September, 1999
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑.
‑‑‑‑S. 13(2)(i)‑‑‑Default in payment of rent‑‑‑Onus to prove‑‑‑Once landlord appeared in witness‑box and deposed that rent of premises was not paid to him by tenant, onus would shift upon tenant to prove about payment of rent.
Allah Din v. Habib PLD 1982 SC 465 ref.
(b) West Pakistan Urban, Rent Restriction Ordinance (VI of 1959)‑‑‑
‑‑‑‑S.13,(2)(i)‑‑‑Default in payment of rent‑‑‑Tenant had contended that rent agreement arrived at between the parties having expired, default in payment of rent would be after sixty days and that rent agreement itself had provided for payment of rent within two months‑‑‑Contentions of tenant had no force because even if period of agreement had expired, parties would continue to bound on the same terms and conditions‑‑‑Agreement between parties had provided that if tenant failed to pay rent within two months, landlord would be entitled to eject the tenant‑‑‑Agreement arrived at between parties could not override provision of law‑‑‑Where date was fixed for payment of rent, default would be if rent was not paid by 'tenant within fifteen days from expiry of said date.
Mrs. Zarina Khawaja v. Agha Mehboob Shah PLD 1988 SC 190 ref.
(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑
‑‑‑‑S.13(2)(i)‑‑‑Default in payment of rent‑‑‑Tender or deposit of rent after its due date, would not save tenant from consequence of default already committed by him
(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑
‑‑‑‑Ss.13(2(i) & 15‑‑‑Ejectment of tenant on ground of default‑‑‑Rent Controller though could not direct ejectment of tenant unless willful default was proved, but Rent Controller and Appellate Authority on consideration of evidence on record had concurrently recorded finding of fact that tenant had failed to tender or make payment of rent within the due date and that story of tendering rent by tenant through "Panchayat" was not well proved‑‑‑Such concurrent findings of fact of two Authorities below not suffering from any misreading of evidence, could not be interfered with by High Court.
Mian Maqsood Ahmad for Appellant.
Dr. M. Mohay‑ud‑Din Qazi for Respondent
Date of hearing: 15th September, 1999.
2000 M L D 396
[Lahore]
Before Malik Muhammad Qayyum and Ghulam Mahmood Qureshi, JJ
MARKET COMMITTEE, SHORKOT ROAD, DISTRICT JHANG through Chairman‑‑‑Petitioner
versus
CANTONMENT BOARD, SHORKOT CANTONMENT through Executive Officer and another‑‑‑Respondents
Writ Petition No. 1101 of 1982, heard on 5th July, 1999, (a) Interpretation of statutes‑‑‑
‑‑‑‑ Courts as far as possible have to harmonise the statutes which were apparently in conflict with each other and every effort must be made to uphold both the laws.
(b) Cantonments Act (II of 1924)‑‑‑
‑‑‑‑Ss.198, 199, 200 & 202‑‑‑Right to set up a public or private market in Cantonment area‑‑‑Scope‑‑‑Such right has been granted to the Cantonment Board under the provisions of Cantonments Act, 1924‑‑‑No one else can set up a market within the areas forming part of Cantonment except with the permission of the Board‑‑‑Power to levy fee for the use of markets or for sale of the goods in the Cantonments also vests in the Cantonment Board.
(c) Cantonments Act (10 of 1924)‑‑‑
‑‑‑‑Ss.198, 199, 200 & 202‑‑‑Punjab Agricultural Produce Markets Ordinance (XXIII of 1978), Ss. 3, 4, 5, 8 & 9‑‑‑Right to set up a public or private market in Cantonment area‑‑‑Provisions of Cantonments Act, 1924 authorise Cantonment Boards to set up such markets while the provisions of Punjab Agricultural Produce Markets Ordinance, 1978, authorise the Provincial Government in that respect‑‑.Effect‑‑‑Both the laws empower two different Authorities to set up and administer markets and to charge fee for issuance of licences or carrying on business therein‑‑‑Power granted to two Authorities under the two different laws was overlapping.
(d) Constitution of Pakistan (1973)‑
‑‑‑‑Art. 143, Sched. IV, Item No.2‑‑‑Cantonments Act (II of 1924), Ss. 198, 199, 200 & 202‑‑‑Punjab Agricultural Produce Markets Ordinance (XXIII of 1978), Ss.3, 4, 5, 8 & 9‑‑‑Right to set up a public or private market in Cantonments areas‑‑‑Special law overrides the general law, principle of‑‑‑Applicability‑‑‑Power of Federal Legislature to legislate in respect of the areas forming part of the Cantonment or the power of Provincial Legislature to legislate in respect of those areas in certain cases‑‑Subject of Cantonments, their regulations, constitution and administration was covered by the Federal Legislative List‑‑‑Provincial Legislature could not legislate in respect of areas covered by Item No.2 of the IVth Sched. to the Constitution‑‑‑Cantonments Act, 1924 was not only a Federal Law but was also a law which specifically dealt with areas forming part of Cantonments‑‑‑In view of principle that special law overrides the general law; the Cantonments Act, 1924, must prevail over the Punjab Agricultural Produce Markets Ordinance, 1978‑‑‑Right to set up a market in the Cantonments, under the various provisions of the Cantonments Act, 1924 vested in the Cantonment Boards and the Provincial Government could not notify any area of the Cantonment Board to be a market under S.3 of Punjab Agricultural Produce Markets Ordinance, 1978‑‑‑No market could be set up in the Cantonment area except by or with the permission of the Cantonment Board‑‑[Khan Umar Khan v. Market Committee, Jhelum PLD 1972 Lah. 497 dissented from].
Khan Umar Khan v. Market Committee, Jhelum PLD 1972 Lah. 497 dissented from.
Cantonment Board through Cantonment Executive Officer v. District Sanitary and Food Inspector, .Peshawar and 3 others 1993 SCMR 941 and Messrs Zeshan Builders v. Karachi Building Control Authority and others 1992 MLD 2259 rel.
A.M. Nasir for Petitioner. M. Muammad Rashid Shad for Respondent No. 1. Mukhtar Abbas for Respondent No.2.
Date of hearing: 5th July, 1999.
2000 M L D 404
[Lahore]
Before Faqir Muhammad Khokhar, J
SHAH MUHAMMAD and another‑‑‑Petitioners
versus
HAFIZA BEGUM and 2 others‑‑‑Respondents
Civil Revision No.929 of 1985, decided on 8th November, 1999.
.(a) Evidence Act (I of 1872)‑‑‑
‑‑‑‑S. 50‑‑‑Relationship of witnesses with the parties‑‑‑Determination‑‑Evidence of relationship‑‑‑Requirements‑‑‑Where relationship of the parties qua the deceased and his forefathers was to be determined, witnesses were required to prove their relationship with the parties‑‑‑If no such relationship was established between the witnesses and the parties, evidence of such witnesses could not be treated as relevant to determine the question of such relationship.
Sitaji and others v. Bijendra Narain AIR 1954 SC 601 rel.
(b) Evidence Act (I of 1872).‑‑
‑‑‑‑S. 4‑‑‑Witness not cross‑examined on a material part of evidence‑‑Effect‑‑‑Inference would be that truth of the same was accepted by the other side.
Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 rel.
(c) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S. 11 & O. XVII, R. 3‑‑‑Res judicata, principle of ‑‑‑Applicability‑‑ Earlier suit was decided under O. XVII, R. 3, C.P.C. while the subsequent suit on the same cause of action was decided on merit by a Court at different place‑‑‑Effect‑‑‑Earlier judgment and decree passed by the Court at place 'F' constituted res judicata within the meaning of S. 11, C.P.C. and operated as a bar against the civil suit filed at place 'N'.
Shahid Hussain v. Lahore Municipal Corporation PLD 1981 SC 4741 Court of Wards, Hyderabad v. Muhammad Karim PLD 1965 Kar. 170; Sheodan Singh v. Daryao Kunwar AIR 1966 SC 1332; Govindoss Krishnadoss v. Rajah of Karvetnagar and another AIR 1929 Mad. 404; Har Dayal v. Ram Ghulam AIR 1944 Oudh 39; (1944) 201 Ind. Cas. 462; Rama Rao v. Suriya Rao and another (1876) 1 Mad. 84; Ram Gobinda Das and others v. Sint. H. Bhakta Bala Dassi and another AIR 1971 SC 664 and Naganada Aiyar alias Eswarapier v. Krishnamurti Aiyar and others (1911) 34 Mad. 97 rel.
(d) Evidence Act (I of 1872)‑‑‑
‑‑‑‑Ss. 101 & 102‑‑‑Evidence of plaintiff, reservation of ‑‑‑Validity‑‑Reserving of such evidence till defendant .closes his evidence and allowing plaintiff to give evidence in affirmative and rebuttal, was not in accordance with law and was likely to prejudice the defendant.
Al‑haj Khalil Ahmad v. The Australasia Bank Ltd., Lahore and another 1979 CLC 494 rel.
(e) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.XLI, R. 27‑‑‑Additional evidence, production of‑‑‑Certified copies of pedigree‑table‑‑‑Such copies were allowed to be produced in evidence since no objection was raised thereto.
Ahmad Ashraf v. University of the Punjab 1988 SCMR 1782 and Ghulam Muhammad and another v. Muhammad Aslam and others PLD 1993 SC 336 eel.
(f) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S. 11 &. O. XVII, R. 3‑‑‑Res judicata, principle of ‑‑‑Applicability‑‑ Earlier suit was filed at place 'F' and the same was dismissed under O. XVII, R. 3, C.P.C. whereas the subsequent suit on the same cause of action between the same parties was filed at place "N"‑‑‑Subsequent suit was decreed by the Trial Court and the appeal was dismissed by the Lower Appellate Court‑‑‑Principle of res judicata was applicable and the later judgments and decrees of both the Courts below were set aside.
Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568; Haji Ilahi Bakhsh v. Noor Muhammad and others PLD 1985 SC 41; Ghulam Muhammad and another v. Allah Yar and others PLD 1965 Lah. 482 and Shall N awaz and another v. Nawab Khan PLD 1976 SC 767 ref.
Mian Nisar Ahmed for Petitioners. Raja Muhammad Anwar for Respondents.
Date of hearing: 8th November, 1999.
2000 M L D 421
[Lahore]
Before Tanvir Ahmad Khan and Syed Zahid Hussain, JJ
Messrs GOLD STAR INTERNATIONAL and another‑‑‑Appellants
versus
MUSLIM COMMERCIAL BANK LIMITED‑‑‑Respondent
First Appeal from Order No. 63 of 1999, heard on 12th October, 1999.
(a) Jurisdiction‑
‑‑‑‑ Misdescription as to the designation of the Court or Tribunal ‑‑‑Effect‑‑Such misdescription does not affect the jurisdiction, otherwise possessed by it under the law.
Maulvi Abdul Ghani and another v. Election Tribunal, Balochistan and others 1999 SCMR 1 rel.
(b) Banking Companies (Recovery of Loans, .y‑lvances, Credits and Finances) Act (XV of 1997)‑‑‑
‑‑‑‑S.27‑‑‑Finality of judgment and decree passe.4 by Banking Court‑‑‑ Extent‑‑‑Subject to the provisions of appeal such judgment and decree attained finality and could not be called in question under the provision of S.27, Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997.
(c) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑
‑‑‑‑Preamble‑‑‑Civil Procedure Code (V of 1908), S.12(2)‑‑‑Application under S.12(2), C.P.C.‑‑‑Competency‑‑‑Since special law takes care of various situations itself, application under general law will not be competent‑‑‑Such an application will amount to circumvention of the provisions of a special law which will erode the very object and purpose of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997.
(d) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑
‑‑‑‑S.21‑‑‑Civil Procedure Code (V of 1908), S.12(2)‑‑‑Ex parte decree passed by Banking Court‑‑‑Appeal‑‑‑Appellant/defendant, instead of getting such decree set aside, filed an application under S.12(2), C.P.C.‑‑‑Dismissal of such application by Banking Court‑‑‑Validity‑‑Appeal under S.21(4), Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, could be preferred even against a decree passed ex pane‑‑‑Where the defendant did not file such appeal, judgment and decree became final and same could not be sought to be reopened through a side wind by making an application under S.12(2), C.P.C.
Iqbal Mahmood Malik for Appellants.
Ms. Aneeqa Mughis Sheikh for Respondent.
Date of hearing: 12th October, 1999.
2000 M L D 434
[Lahore]
Before Kh. Muhammad Sharif, J
MUHAMMAD IBRAHIM‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Criminal Appeal No.232 of 1999, heard on 3rd June, 1999.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 409‑‑‑Criminal Procedure Code (V of 1898), S.342‑‑‑Appreciation of evidence‑‑‑Incriminating evidence brought on record by the prosecution had not been put to the accused in his statement recorded under S.342, Cr.P.C. which had caused prejudice to him‑‑‑Conviction and sentence of accused were consequently set aside and the case was remanded to Trial Court for fresh decision on merits after putting the incriminating prosecution evidence to accused in his statement to be recorded under S.342, Cr.P.C. as required by law.
Rana Nisar Ahmad Khan for Appellant. Badar Munir Malik for the State.
Date of hearing: 3rd June, 1999.
2000 M L D 462
[Lahore]
Before Tassaduq Hussain Jilani, J
ABDUL RAUF ---Petitioner
versus
FEDERATION OF PAKISTAN and another‑‑‑Respondents
Writ Petition No. 17532 of 1998, heard on 10th December, 1999.
Chartered Accountants Ordinance (X of 1961)‑‑
‑‑‑‑S.27(1)‑‑‑Chartered Accountants Bye‑laws, 1983, Bye‑law118‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Grant of permission to appear in Chartered Accountants Final Examination‑‑‑Constitutional petition‑‑ Petitioner who failed in one paper and could not clear the said paper in permissible two attempts, requested to appear once again in the paper, but his request was declined by Authority on ground that as he could not clear the subject in permissible attempts he had to appear in all papers ‑‑‑Validity‑‑ Order of Authority was passed in terms of Bye‑law 118 of Chartered Accountants Bye‑laws, 1983, framed under S.27(1) , of Chartered Accountants Ordinance, which were issued by Council of Institute of Chartered Accountants of Pakistan with approval of Government and were mandatory in nature‑‑‑Petitioner, who had failed in two permissible chances, could not claim any other chance to clear the examination‑‑‑Only course open to petitioner was to appear in all papers‑‑‑In absence of any jurisdictional defect in the order passed by the Authority, no case was made out for interference of High Court in exercise of Constitutional jurisdiction.
Institute of Chartered Accountants of Pakistan, Karachi and others v. Federation of Pakistan and others 1998 SCMR 2679 ref.
Akhtar Ali Chaudhry for Petitioner. Anwar Kamal for Respondents.
Date of hearing: 10th December, 1999.
2000 M L D 466
[Lahore]
Before Mrs. Fakhar‑un‑Nisa Khokhar, J
MUHAMMAD BAKHSH and others‑‑‑Petitioners
versus
GHULAM YASIN and others‑‑‑Respondents
Civil Revision No.756‑D of 1998, heard on 16th December, 1999
(a) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O. XLI, R. 1 & 5.151‑‑‑Dismissal of appeal‑‑‑Revision‑‑‑Two suits filed by petitioner were dismissed by Trial Court‑‑‑Petitioner obtained copies of said judgments and decrees and filed two appeals against said judgments of Trial Court, but wrongly placed judgment and decree on both memorandum of appeals as judgment and decree 'of one suit was placed on memo. of appeal of different appeal‑‑‑Both appeals were checked and no objection was made by office of Appellate Court and appeals were admitted to regular hearing‑‑‑Appellate Court without summoning record dismissed the appeals for non‑compliance of provisions of O.XLI, R.1, C.P.C.‑‑Validity‑‑‑Copies of judgments and decrees of Trial Court having inadvertently been placed by clerk of counsel of petitioner on wrong memo. of appeal order of Appellate Court below dismissing appeals in a slipshod manner without holding inquiry, was not only erroneous, but also perverse and injustice had been caused to the petitioner‑‑‑Court was bound to hold inquiry to discover the truth whether petitioner was at fault or not‑‑‑Judgment of Appellate Court was set aside in revision, by High Court.
Muhammad Latif v. Mst. Ghulam Fatima and others PLD 1955 Lah. 487; Tahir and 2 others v. Ahmad Bakhsh 1991 MLD 506 and Mst. Ghulan and others v. Punjab Province 1992 CLC 1204 ref.
(b) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑5.151‑‑‑Object and scope‑‑‑Administration of justice, principles of‑‑Provisions of 5.151, C.P.C. were intended by Legislature for advancement of justice‑‑‑Rules framed under Code of Civil Procedure, should not be allowed to defeat ends of justice‑‑‑It is always duty of a Judge to apply law and satisfy itself for its just application‑‑‑Court must always avoid technicalities to defeat ends of justice‑‑‑Court has inherent power to do justice and, to redress a wrong instead of heading to objections and trying to dispose of a case on mere technicalities‑‑‑Court had inherent power to do justice based on sound judicial principles.
Hafiz Khalil Ahmad for Petitioner.
Faiz Muhammad Bilal for Respondent
Date of hearing: 16th. December, 1999.
2000 M L D 470
[Lahore]
Before Ali Nawaz Chowhan, J
PUNJAB OIL MILLS LTD. ‑‑‑Petitioner
versus
FEDERATION OF PAKISTAN and another‑‑‑Respondents
Writ Petition No.679 of 1992, heard on 12th August, 1999.
Customs Act (IV of 1969)‑‑‑
‑‑‑‑S.32(2)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Recovery of duty beyond period of six months‑‑Non‑issuance of show‑cause notice by Authorities‑‑‑Validity‑‑‑Time frame was prescribed for recovery of duty erroneously refunded and issuance of a show‑cause notice‑‑Despite the requests made by the petitioner that a show‑cause notice be issued to him so that he might explain his position, Authorities did not issue the notice‑‑‑Recovery in question was related to a period which was beyond 6 months from the relevant date‑‑‑Recovery beyond the period prescribed was not permissible under the provisions of S.32(2) of Customs Act, 1969‑‑‑Detaining of goods of the petitioner against the demand in question was not legal, and the action was unauthorised and unlawful in circumstances.
Imtiaz Rashid Siddiqui for Petitioner.
Qazi Naeem for Respondents.
Date of hearing: 12th August, 1999.
2000 M L D 475
[Lahore]
Before Iftikhar Hussain Chaudhry and Zafar Pasha Chaudhry, JJ
ZULFIQAR ALI ‑‑‑Petitioner
versus
STATE‑‑‑Respondent
Criminal Miscellaneous No.3038‑B of 1999, decided on 10th July, 1999.
Criminal Procedure Code (V of 1898)‑‑‑‑
‑‑‑‑S.497(1), third proviso‑‑‑‑Penal Code (XLV of 1860), S.302/449/380/411 / 148/ 149‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14‑‑‑Bail on ground of statutory delay‑‑Accused had not engaged any counsel in the first instance for almost 1/1‑2 years and subsequently had sought numerous adjournments in the case‑‑Accused, thus, could not blame prosecution for causing delay in conclusion of the trial‑‑Trial being conducted by the Special Court was expected to be concluded within a short span of time if the accused cooperated in the matter‑‑‑Bail was declined to accused in circumstances.
Syed Zahid Hussain Bokhari for Petitioner.
Masood A. Malik for the State.
Inayat Ullah Cheema for the Complainant.
Date of hearing: 10th July, 1999.
2000 M L D 477
[Lahore]
Before Dr. Munir Ahmad Mughal, J
KHILAFAT ALI ‑‑‑Petitioner
versus
STATE‑‑‑Respondent
Criminal Miscellaneous No.55‑B of 1999, decided on 26th February, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑‑Accused according to police investigation was not present at the spot at the time of occurrence‑‑‑Injury attributed to accused as per post‑mortem examination was not fatal ‑‑‑Co‑accused having been granted bail, the rule of consistency was applicable to the case of accused which required further probe‑‑‑Bail was allowed to accused in circumstances.
Ch. Ghulam Qadir Cheema for Petitioner.
Raza‑ul‑Karim for the State.
Date of hearing: 26th February, 1999.
2000 M L D 479
[Lahore]
Before Raja Muhammad Khurshid, J
FAISAL BASHIR‑‑‑Petitioner
versus
STATE‑‑‑Respondent
Criminal Miscellaneous No. 122‑B of 1999, decided on 8th February, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497‑‑‑Penal Code (XLV, of 1860), S.324/34‑‑‑Bail‑‑‑Accused was named in the F.I.R. who while armed with a pistol had opened fire at three persons including the complainant injuring them at vital parts of their bodies‑‑‑Injuries attributed to accused in the F.I.R. were supported by the medico‑legal reports of the victims‑‑‑Bullet with which the complainant had suffered the injury was still in his abdomen‑‑‑Accused had acted desperately and the plea of having acted in self‑defence taken by him required deeper appreciation which could be examined by the Trial Court‑‑‑Accused was disallowed bail in circumstances.
M. Yaqub Pannu for Petitioner.
Siddiqa Altaf Khan for the State.
2000 M L D 480
[Lahore]
Before Muhammad Asif Jan, J
MUHAMMAD ZAMAN‑‑‑Petitioner
versus
STATE‑‑‑Respondent
Criminal Miscellaneous No.7037‑B of 1998, decided on 8th March, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.337‑F(vi)/337‑L(ii)/337‑H(ii)/34 Bail‑‑‑F.I.R. had been lodged by brother of accused and husband of the victim whose right arm was fractured by the blows given to her by the accused with the butt of his rifle which had disentitled him to grant of bail‑‑Bail was refused to accused accordingly.
Rai Muhammad Tufail Khan Kharal for Petitioner. M. Saleem Shad for the State.
2000 M L D 481
[Lahore]
Before Zafar Pasha Chaudhry, J
MUSHTAQ AHMAD‑‑‑‑Petitioner
versus
STATE‑‑‑Respondent
Criminal Miscellaneous No.691‑B of 1999, decided on 23rd February, 1999.
Criminal Procedure Code (V of 1898)‑‑‑‑
‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), S.457/380‑‑‑Pre‑arrest bail‑‑Accused had been found to be innocent in investigations conducted by the local police as well as by the Assistant Superintendent of Police‑‑‑Range Crimes, however, lastly found the accused to be involved in the case on the basis of search made by dogs trained by a retired Army Officer, after eleven days of the registration of the case‑‑‑Police dogs or Army dogs admittedly could not detect the suspect after the expiry of 33 hours‑‑‑None of the accused was required in any criminal case prior to the present case‑‑‑One accused was a retired Army personnel and the other two accused were petty landlords of the locality‑‑‑No tangible evidence or any incriminating circumstance, prima facie, existing against the accused, interim pre‑arrest bail allowed to accused was confirmed.
Malik Khizar Hayat for Petitioner.
Ghulam Haider Al‑Ghazali, Addl. A.‑G.
Date of hearing: 23rd February, 1999.
2000 M L D 483
[Lahore]
Before Rashid Aziz Khan,. C.J. and Faqir Muhammad Khokhar, J
LIAQUAT ALI ‑‑‑Petitioner
versus
STATE‑‑‑Respondent
Criminal Miscellaneous No.279‑B of 1999, decided on 23rd February, 1999.
Criminal Procedure Code (V of 1898)‑‑
‑‑‑‑S.497‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.9‑C‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4‑‑‑Bail‑‑Huge quantity of heroin weighing one kilogram and 200 grams was recovered from the possession of accused‑‑‑No mala fides were shown to, exist on the part of prosecution against the accused‑‑‑Provisions of 5.103, Cr.P.C. having been specifically excluded by S.25 of the Control of Narcotic Substances Act, 1997, the same were not attracted in the case‑‑‑Reasonable grounds existed for believing the involvement of accused in the alleged offence which fell within the prohibition contained in S.497(1), Cr.P.C.‑‑Bail was declined to accused in circumstances.
Malik Saeed Hassan for Petitioner.
Salah‑ud‑Din Zafar for the State.
2000 M L D 484
[Lahore]
Before Ali Nawaz Chowhan, J
MUHAMMAD FAROOQ‑‑‑Petitioner
versus
CHAIRMAN, EVACUEE TRUST PROPERTY and others‑‑‑Respondents
Writ Petition No.29‑R of 1984, heard on 13th August, 1999.
Evacuee Trust Properties (Management and Disposal) Act (XBI of 1975)‑‑
‑‑‑‑Ss.8(1)(3), 9 & 14‑‑‑Provisional Constitution Order (1 of 1981), Art.9‑‑Constitutional petition‑‑‑Petitioner purchased property in auction conducted by Settlement Department‑‑‑Chairman of Evacuee Trust Property Board subsequently declared the said property as an evacuee property and Transfer Deed in favour of petitioner/auction‑purchaser was cancelled ‑‑‑Validity‑‑Order of the Chairman, Evacuee. Trust Property Board was based on facts adduced through evidence the appreciation of which was not perverse‑‑‑ Order of Chairman, Evacuee Trust, Properties Board being lawful did not call for interference through Constitutional petition.
Secretary, District Evacuee Trust Property v. Qazi Habib Ullah, P L D 1991 SC 586 and Evacuee Trust Property Board v. Mst. Zaqia Begura end others 1992 SCMR 1313 ref.
Raja Abdul Gahfoor for Petitioner.
Hafiz Saeed Ahmad Sh. for Respondents.
Date of hearing: 13th August, 1999.
2000 M L D 489
[Lahore]
Before Raja Muhammad Khurshid, J
MUSHTAQ AHMAD ‑‑‑ Petitioner
versus
ABDUL HALEEM KHAN and 4 others‑‑ ‑Respondents
Writ Petition No. 12675 of 1999, decided on 7th July, 1999.
(a) Constitution of Pakistan. (1973)‑‑‑
‑‑‑‑Art.l99‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Concurrent findings of both the Courts below‑‑‑Matter was pending in the Trial Court and had not been decided finally‑‑‑Constitutional petition was not maintainable to circumstances.
(b) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.XIII, R.20‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Producing of documentary evidence at belated stage‑‑Inadvertence, was taken as ground for non‑production of such evidence‑‑Validity‑‑‑Where the documents required to be‑produced were available even at the time of institution of the suit, inadvertence was not considered as a sufficient ground to allow production of such documents‑‑‑Law required that a litigant should be vigilant and not indolent while conducting the proceedings in a Court of law.
Syed Almas Haider Kazmi for Petitioner.
2000 M L D 491
[Lahore]
Before Sheikh Abdur Razzaq, J
BEGUM BIBI ‑‑‑ Petitioner
versus
MUHAMMAD ISHAQ‑‑‑Respondent
Civil Revision No. 1178 of 1999, decided on 29th July, 1999. F
(a) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for declaration‑‑Plaintiff challenged the validity of a sale deed‑‑‑Onus to prove‑‑‑Where it was asserted that the sale deed was a result of fraud and misrepresentation, onus to prove was on the plaintiff‑‑‑Plaintiff neither appeared herself before the Trial Court, nor any effort was made to cause the production of original sale‑deed 4n record as the same was said to . be in possession of the defendant‑‑‑Trial Court and Lower Appellate Court rejected the suit and appeal of the plaintiff, respectively‑‑‑Revision‑‑‑Validity‑‑‑Provision of S.115, C.P.C. applied to the cases, involving illegal assumption, non-exercise or irregular exercise of jurisdiction, and the same could not be invoked against conclusion of law or fact, which did not affect the jurisdiction of High Court, in any way; no matter, however, erroneous, wrong or perverse, the decision might be either on a question of fact or law, unless the decision involved a matter of jurisdiction‑‑‑Erroneous conclusion of law or fact was liable to be corrected in appeal, but revision was not competent on such a ground, unless in arriving at such conclusion, an error of law was. manifestly shown to have been committed‑‑‑Judgments and decrees of both the Courts below did not suffer from any infirmity or irregularity. [p. 494] A, B & C
(b) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S.115‑‑‑Revision‑‑‑Maintinability‑‑‑Ingredients.
Ch. Muhammad Tufail Kasuri for Petitioner.
2000 M L D 495
[Lahore]
Before Muhammad Naseem Chaudhri, J
Syed AHMAD SAEED KIRMANI‑‑‑Appellant, versus
Raja ASHFAQ SARWAR and others‑‑‑Respondents
First Appeal from Orders Nos.50 and 51 of 1999, heard on 2nd August, 1999.
(a) Transfer of Property Act (IV of 1882)‑‑‑
‑‑‑‑S.53‑A‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.l & 2‑‑‑Sale of property‑‑‑Non‑fulfilment of contractual obligation‑--Temporary injunction, grant of‑‑‑Agreement to sell incomplete house for Rupees thirty lacs‑‑‑Earnest money of Rupees five lass paid by vendee to vendor‑‑‑Two other agreements regarding same property were subsequently entered into between the parties wherein vendee agreed to pay another amount of Rupees five lacs to vendor‑‑‑No such additional payment was made‑‑‑Vendor filing suit for declaration and possession on ground that vendee had not paid the balance amount of agreed sale price, had demolished the incomplete building standing on the plot and that agreement between the parties had become ineffective due to non‑compliance of obligations under the agreement by vendee and earnest money stood forfeited and he was also entitled to mesne profits‑‑‑Vendor also filed application for temporary injunction restraining vendee from resuming further construction on suit property‑‑‑Such application was rejected by Trial Court ‑‑‑Vendee, on his part, also filed suit against vendor for specific performance of agreement of sale of property contending that vendor was bound to complete all papers for the transfer which he failed to do ‑‑‑Vendee also filed application for temporary injunction restraining vendor from dispossessing him from the suit property and also from alienating the same to another person‑‑‑Trial Court granting temporary, injunction, in favour of vendee on the strength of S.53‑A, Transfer of Property Act and dismissing application of vendor ‑‑‑Validity‑‑Held, order of Trial Court dismissing application of vendor under O.XXXIX, Rr. 1 & 2, C.P.C. praying for restraining vendee from raising construction over suit property was violative of law and devoid of judicial propriety.
(b) Transfer of Property Act (IV of 1882)‑‑‑‑
‑‑‑‑S. 52‑‑‑‑Transfer of property‑‑‑Doctrine of pendente lite and principle of caveat emptor‑‑‑Applicability‑‑‑Suit in respect of property in dispute was pending‑‑‑Neither party to the litigation,. in which any right to immovable property was questioned, could pendente lite, alienate or otherwise deal with said property so as to affect his opponent‑‑‑Consequence of doctrine of pondente lite was that the transaction while suit was pending would not be allowed to affect the rights under decree‑‑‑Broad purpose of S.52, Transfer of Property Act, 11382 was to maintain status quo uneffected by the act of any party to the litigation pending its determination‑‑‑Proposed transferee other than the adversary in the suit had to remain bound by principle of "caveat emptor" and consequence of said doctrine was that transaction pendente lite, would not be allowed to affect rights under the decree.
Syed Asghar Hussain Sabzwari for Appellant.
Samad Mahmood and Mansoor Ahmad for Respondents.
Date of hearing: 2nd August, 1999.
2000 M L D 502
[Lahore]
Before Sheikh Abdur Razzaq, J
MUHAMMAD HUSSAIN ‑‑‑Petitioner
versus
Mst. TANZEELA BANG and another‑‑‑Respondents
Writ Petition No. 14133 of 1999, decided on 16th September, 1999.
Qanun‑e‑Shahadat (10 of 1984)‑‑‑
‑‑‑Art.133‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Failure to cross‑examine witness‑‑‑Effect‑‑‑Opportunity was given to the petitioner/plaintiff to cross‑examine witness of the respondent/defendant. but witness was not cross‑examined‑‑‑Trial Court closed the right of cross‑examination and the same was not allowed by the Lower Appellate Court in a revision petition filed by the pet itioner,'plain‑iff‑‑‑Validity‑‑‑Orders of both the Courts below were passed in exercise of jurisdiction vested in them and such orders did not suffer from any illegality or irregularity warranting the exercise of Constitutional jurisdiction of High Court. (p. 504] A
Mst. Anwar v. Imam Din and another 1997 MLD 461 ref.
Munir Ahmad Bhatti for Petitioner.
2000 M L D 504
[Lahore]
Before Sheikh Abdur Razzaq, J
ATAULLAH‑‑‑Petitioner
versus
Mst. RIZWANA and others‑‑‑Respondents
Writ Petition No. 1371 of 1999, decided on 1st July, 1999.
(a) West Pakisan Family Courts Act (XXXV of 1964)‑‑
‑‑‑‑S.5 & Sched.‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for restitution of conjugal rights‑‑‑Non‑payment of prompt dower to the respondent/wife by the petitioner/husband‑‑‑Effect‑‑‑Where it was proved by evidence that prompt dower was not paid to the respondent/wife, she was justified in living apart from the petitioner/husband ‑‑‑Both the Courts below had rightly dismissed the suit and appeal of the petitioner/husband and as such the judgments were unexceptionable.
(b) West Pakistan Family Courts Act (XXV of 1964)‑‑‑
‑‑‑‑S.5 & Sched.‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for maintenance allowance ‑‑‑Petitioner/husband was running a cloth shop and the Family Court fixed Rs.1,000 per month as maintenance allowance‑‑‑Lower Appellate Court confirmed the judgment of the Family Court and dismissed the appeal filed by the petitioner/husband ‑‑‑Validity‑‑Fixation of such an amount was just normal and one could hardly make his both ends meet in such a meagre amount‑‑‑Family Court had rightly fixed the maintenance at the rate of Rs.1,000 per month‑‑‑Petition was dismissed in limine.
Syed Abdul Aziz Shah for Petitioner.
2000 M L D 507
[Lahore]
Before Raja Muhammad Khurshid, J
Mst. SURAYYA KAUSAR‑‑‑Appellant
versus
MUHAMMAD ASMAT ULLAH‑‑‑Respondent
Civil Revision No. 1587 of 1998, heard on 6th May, 1999.
(a) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.VII, R. II‑‑‑Contract Act (IX of 1872), S. 196‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 95‑‑‑Suit for declaration through Attorney‑‑‑Plaint was rejected on the ground that power of attorney was fictitious having never been registered in Pakistan and thus, not legally valid‑‑‑Power of attorney was though not registered in Pakistan but sufficiently conveyed the appointment of attorney duly authenticated by the Justice of Peace in U.K.‑‑Another power of attorney was executed which had details and attested by deponent, Solicitor in U.K., High Commission of Pakistan in London and Ministry of Foreign Affairs, Islamabad‑‑Another exhaustive and comprehensive power of attorney was executed wherein the previous deeds of attorney was admitted with the statement that those were never recalled or cancelled and the same was also got registered before the Sub‑Registrar‑‑FirsT Appellate Authority set aside the order of rejection of plaint passed by the Trial Court‑=‑Validity‑‑‑Suit in question was instituted by a duly authorised agent on duly executed, authenticated and registered deeds of Power of Attorney and institution of suit would stand ratified in view of the provisions contained in S.196, Contract Act, 1872 as principal was also present in the Court at the time of hearing who accepted orally that he had executed all those deeds of power of attorney and as such there would be no illegality so as to non‑suit the plaintiff‑‑‑Order of Trial Court being illegal in the eye of law was rightly set aside by the First Appellate Authority, and thus, impugned judgment called for no interference by the High Court.
Muhammad Mehrban v. Sadrud Din and another reported as 1995 CLC 1541; Qadir Bakhsh and 10 others v. Kh. Nizam‑ud‑Din Khan and 4 others 1997 SCMR 1267; Ziauddin Siddiqui v. Mrs. Rana Sultana and another 1990 CLC 645; Hawaldar Sawar Khan through General Attorney v. Province of Sindh,\ Revenue Department through Deputy Commissioner, Shikarpur and 5 others 1998 CLC 382; Muhammad Asmatullah v. D.C., Sargodha and others 1998 MLD 1977; Lt.‑Col. (Recd.) P.G. Branganza v. The Border Area Allotment Committee and another 1984 CLC 1479; Shabbir Hussain v. Mst. Ansar Fatima and 3 others PLD 1985 Lah. 491; Muhammad Khaliq v. Abdullah Khan and 4 others 1987 CLC 1366 and Khyam Films and another v. Bank of Bahawalpur Ltd. 1982 CLC 1275 ref.
(b) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑O.VI, R.17 & O. VII, R.11‑‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Application for amendment of plaint was rejected under O.VII, R. 11, C.P.C. and application for amendment of plaint was dismissed without calling for reply simply on the ground that plaint had been rejected under O.VIl, R.11, C.P.C.‑‑‑First Appellate Court set aside both the orders of rejection by Trial Court‑‑‑Validity‑‑‑Perfunctory order rejecting amendment application` by Trial Court was not a judicial adjudication as it did not contain facts relevant to the application nor the arguments raised by the parties and consequently no reasons had been advanced for the disposal of application‑‑‑Order dismissing the application being totally misconceived and illegal was rightly set aide by First Appellate Court.
Syed Fayyaz Ahmed Sherazi for Appellant
Akhtar Masood Khan for Respondent.
Date of hearing: 6th May, 1999.
2000 M L D 514
[Lahore]
Before Sheikh Abdur Razzaq, J
MUHAMMAD ASHARAF ‑‑‑ Petitioner
versus.
MUNICIPAL CORPORATION, GUJRANWALA, through Mayor/Administrator‑‑‑Respondent
Civil Revision No. 1409‑D of 1999, decided on 16th September, 1999.
Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S. 115‑‑‑Scope of S. 115, C.P.C.‑‑‑Provisions of S. 115, C.P.C. apply to cases, involving illegal assumption, non‑exercise or irregular exercise of jurisdiction but the same cannot be invoked against conclusions of law or fact‑‑‑Such conclusions do not, in any way, affect the jurisdiction of i High Court, no matter, how erroneous, wrong or perverse the decision may be either on a question of fact or law, unless such decision involves a matter of jurisdiction‑‑‑Erroneous conclusion of law or fact is liable to be corrected in appeal, but revision will not be competent on such a ground, unless in arriving at such conclusion, an error of law is manifestly shown to have been committed.
Ch. Bashir Ahmad for Petitioner.
2000 M L D 518
[Lahore]
Before Ch. Ijaz Ahmad, J
ABDUL RASHID ‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Criminal Appeal No.23 of 1989, heard on 28th July, 1999.
(a) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Recoveries had been made in the case in violation of mandatory provisions of S.103, Cr.P.C.‑‑‑Recovery witnesses even otherwise were interested witnesses whose testimony in the circumstances could not be relied upon‑‑‑Motive set up by the prosecution was discarded‑‑‑Evidence of "last seen" was furnished by chance witnesses and they had contradicted each other‑‑‑Nothing was available on record to lead to the inference that the accused had killed the deceased‑‑‑Accused was acquitted in circumstances.
PLD 1959 SC 491; 1985 SCMR 160; 1985 SCMR 1573; PLD 1976 SC 695; 1994 SCMR 1928 and 1997 SCMR 1416 ref.
(b) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S.302‑=‑Circumstantial evidence‑‑‑Evidence of "last seen"‑‑‑Last seen evidence has only corroborative value and conviction cannot be based upon the same.
1997 SCMR 1416 ref.
Sardar Zaheer Ahmed Khan for Appellant.
Malik Shoukat Hussain Awan for the State.
Munir Ahmed Paracha for the Complainant.
Date of hearing: 28th July, 1999.
2000 M L D 526
[Lahore]
Before Ch. Ijaz Ahmad, J
MEHR BAZ SHAH‑‑‑Petitioner
versus
UNITED BANK LIMITED, BANK SQUARE, LAHORE through Provincial Head Chief and 2 others‑‑‑Respondents.
Writ Petition No. 11091 of 1999, decided on 5th October, 1999.
(a) Constitution of Pakistan (1973)‑
‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Enforcing of private contract‑‑Maintainability of petition‑‑‑Right exclusively founded on contract is not enforceable by making resort to Constitutional jurisdiction of High Court under Art. 199 of the Constitution.
State of Pakistan and others v. Miraj PLD 1959 SC (Pak.) 147; Chandpur Mills Ltd. v. District Magistrate PLD 1958 SC (Pak.) 267; Manion Motor Company v. Original Transport Authority PLD 1962 SC 108; K.N. Gurnuswamy v. State of Mysore PLD 1956 SC (Ind,) 53 and NLR 1995 CLJ 574 ref.
(b) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Factual controversy‑‑‑Factual controversy cannot be resolved in Constitutional jurisdiction of High Court.
1993 SCMR 618 ref.
(c) Word and phrases‑‑
‑‑‑‑"Good faith"‑‑‑Connotation‑‑‑Good faith is an abstract term and the same is not capable of any rigid definition‑‑‑Expression "good faith" is to be examined with reference to the context in which the same is used‑‑‑Essential ingredients of term are honesty of purpose and due diligence.
M. Ramzan v. Government of Pakistan PLD 1977 BJ 15 ref.
(d) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Petitioner had not approached the High Court with clean hands‑‑‑He who seeks equity must come with clean hands.
PLD 1973 SC 236 fol.
AIR 1914 All. 81; AIR 1966 Cal. 405 and PLD 1959 Lah. 228 distinguished.
Muhammad Hanif Niazi for Petitioner.
Muhammad Nawaz Bhatti, Addl. A.‑G. for Respondents.
2000 M L D 531
[Lahore]
Before Sheikh Abdur Razzaq, J
MUHAMMAD YAR ‑‑‑ Petitioner
versus
Mst. IFFAT SULTANA‑‑‑Respondent
Civil Revision No.238 of 1995, heard on 2nd June, 1999.
(a) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S.42‑‑‑Suit for declaration‑‑‑Plaintiff who claimed to be owner in possession of suit land, had filed suit for declaration in 1986, while copy of Khasra Girdawari as well as copy of Jamabandi produced by plaintiff on record in proof of his claim in respect of suit land pertained to the year 1983‑1984‑‑‑Factum of possession of defendants over suit land stood proved even from evidence produced by plaintiff‑‑‑Effect‑‑‑Incumbent upon plaintiff to bring on record documentary evidence to prove his possession, over suit land at the time of filing the suit‑‑‑That having not been done by plaintiff, suit for declaration filed by plaintiff was not maintainable‑‑‑Suit for declaration could only be filed if it was proved on record that plaintiff was in possession of suit land at the relevant time.
(b) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for declaration‑‑Maintainability ‑‑‑Revisional jurisdiction, exercise of‑‑‑Trial Court had discussed evidence regarding execution of sale deed in respect of suit land and after elaborately dealing with matter in dispute returned finding that suit filed by plaintiff was not maintainable‑‑‑Said findings were reversed by Appellate Court below without referring and discussing evidence brought on record which had been analyzed and scanned by Trial Court‑‑‑Findings on question of maintainability of suit recorded by Appellate Court below were reversed by High Court in exercise of its revisional jurisdiction and that of Trial Court were restored.
Sh. Abdul Aziz for Petitioner. Malik Ghulam Siddique Awan for Respondent.
Date of hearing: 2nd June, 1999.
2000 M L D 543
[Lahore]
Before Ghulam Mahmood Qureshi, J
Mian MUNIR HUSSAIN ‑‑‑Appellant
versus
Messrs RIAZ BOTTLERS (PVT.) LIMITED‑‑‑Respondent
Second Appeal from Order No. 16 of 1999, decided on 18th November, 1999.
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑
‑‑‑‑S.13(6)‑‑Ejectment petition‑‑‑Tentative rent order‑‑‑Powers of Rent Controller‑‑‑Scope‑‑‑Rent Controller under the provisions of S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 was competent to pass order for deposit of rent‑‑‑Rent Controller in case of any dispute regarding rate of rent was required to determine the arrears of rent and also future monthly rent and could direct the tenant to make the deposit accordingly, pending the decision of the case‑‑‑Tentative rent so determined was approximate assessment and did not amount to final determination‑ ‑‑Rent Controller was not expected to hold detailed inquiry before fixing tentative rent.
PLD 1984 Kar. 441; PLD 1983 SC 1; 1987 SCMR 25; 1985 SCMR 586; 1999 CLC 917; PLD 1995 Lah. 352; 1986 CLC 1731; PLD 1963 W.P. (Quetta) 16; 1993 CLC 2435; PLD 1996 Kar. 612; 1993 CLC 655 and 1982 CLC 1592 ref.
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑
‑‑‑‑Ss. 13 & 15‑‑‑Default in deposit of monthly rent‑‑‑Rent Controller passed order fixing tentative rent in ejectment petition‑‑‑On failure of tenant to deposit such tentative rent, defence was struck off and the Rent Controller ordered for the ejectment of the tenant‑‑‑Tenant being dissatisfied with the tentative rent order filed appeal which was accepted and case was remanded to the Trial Court‑=‑Validity‑‑‑Where the Lower Appellate Court was not satisfied with the order passed by the Rent Controller, whereby the tenant was directed to deposit the rent, the Lower Appellate Court, under S.15(5) of West Pakistan Urban Rent Restriction Ordinance, 1959 had the same powers to direct the tenant to deposit the rent and there was no bar for said Court to determine the tentative rent‑‑‑Instead of exercising jurisdiction vested in the Lower Appellate Court under the law, the appeal was summarily accepted‑‑Where question of wilful default had not been examined by the Lower Appellate Court, High Court had no option but to remand the case for decision of appeal on merits‑‑‑Order of the Lower Appellate Court was set aside and case was remanded to the Lower Appellate Court for decision afresh.
Arif Chaudhry for Petitioner.
Faisal Hanif Chaudhry for Respondent.
Date of hearing: 10th November, 1999.
2000 M L D 551
[Lahore]
Before Muhammad Naseem Chaudhri, J
Rana IJAZ AHMAD KHAN‑‑‑Petitioner
versus
GOVERNMENT OF PAKISTAN and others‑‑‑Respondents
Writ Petition No. 11395 of 1999, decided on 9th July, 1999
(a) Exit from Pakistan (Control) Ordinance (XLVI of 1981)‑‑‑
‑‑‑‑S. 2‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Exit from Pakistan was refused to the petitioner on the basis of liability in the matter of payment of some amount‑‑‑Notification of placing name of petitioner on Exit Control List was issued on 10‑9‑1991‑‑‑Dispute with respect to the liability of the petitioner for such payment had already been settled since 29‑6‑1993 by High Court in another Constitutional petition and thereafter, not only once but for several times the petitioner had gone abroad‑‑‑Petitioner on the basis of order, dated 30‑9‑1991, could not be restrained from going abroad by placing his name on the Exit Control List.
Miss Naheed Khan v. Government of Pakistan and another PLD 1997 Kar. 513; Wajid Shamas‑ul‑Hassan v. Federation of Pakistan through
Secretary, Ministry of Interior, Islamabad PLD 1997 Lah. 617 and Saleem Akhtar v. Federation of Pakistan and another PLD 1999 Kar. 177 ref.
(b) Passports Act (XX of 1974)‑‑‑
‑‑‑‑S.8‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Refusing to issue fresh passport‑‑‑Passport of petitioner had expired and issuance of fresh passport was refused to him‑‑‑Validity‑‑‑Petitioner was neither engaged in subversive activities nor in activities which were prejudicial to the interests of Pakistan or to Pakistan's relations with any foreign power‑‑‑Where petitioner was provided the right to obtain passport and the same stood expired, he had the right to get same continued to acquire fresh passport‑‑‑Right of acquisition of fresh passport could not be denied under the provisions of S.8, Passports Act, 1974.
(c) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 199‑‑‑Passports Act (XX of 1974), S.8‑‑‑Exercise of jurisdiction under Art.199 of the Constitution‑‑‑Scope‑‑‑Relief, grant of‑‑‑Aggrieved person within contemplation of Art.199‑‑‑Grant of any relief depended on existence of fundamental and legal right of a person and on infringement of such right‑‑‑Right which is the foundation of Art. 199 of the Constitution is a personal and individual right and statutory right recognised by law‑‑‑Where a person had been denied a legal right by some one who had a legal duty to perform relating to that right, such person was aggrieved person who could be granted relief under Art. 199 of the Constitution.
(d) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art.199‑‑‑Passports Act (XX of 1974), S.8‑‑‑Constitutional petition‑‑Issuance of fresh passport on expiry of previous passport held by petitioner, was refused to him on the ground that his name was placed on the Exit Control List of year 1991‑‑‑Validity‑‑‑Petitioner was neither engaged in any subversive activity nor in activities which were prejudicial to the interests of Pakistan or Pakistan's relations with any foreign country‑‑‑Order of refusal to issue fresh passport had infringed the Constitutional as well as legal right of the petitioner and such order was void ab initio‑‑‑Constitutional petition without making any representation to the Federal Government for redressal of grievance was maintainable.
(e) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art.199‑‑‑Passports Act (XX of 1974), S.8‑‑‑Issuance of fresh passport‑‑Refusal by Authorities‑‑‑Constitutional petition without first making representation to the Federal Government‑‑‑Maintainability‑‑‑Relief, grant of‑‑‑Constitutional petition under Art.199 of the Constitution (1973) is maintainable without first making any representation to the Federal Government for redressal of petitioner's grievance.
Rana Ijaz Ahmad Khan alongwith Malik Riaz Khalid Awan for Petitioners.
Nisar Ali, Senior Clerk, Passport Office, Lahore alongwith Khawaja Saeed‑us‑Zafar, Deputy Attorney‑General for Respondents.
Date of hearing: 6th July, 1999.
2000 M L D 560
[Lahore]
Before Khawaja Muhammad Sharif, J
SHAHAMAND and another‑‑‑Petitioners
versus
THE STATE‑‑‑Respondent
Criminal Miscellaneous No.2292‑B of 1998, decided on 22nd December 1998.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.497‑‑Penal Code (XLV of 1860), S.302/324/148/149‑‑‑Bail‑‑‑Injuries to the deceased were not attributed to the accused‑‑‑Accused were allegedly armed with hatchets, but no hatchet was recovered from them during investigation‑‑‑Accused had been found innocent in three different investigations and the police had prepared a discharge report which was, however, not agreed to by the Magistrate‑‑‑Bail was allowed to accused in circumstances.
Altaf Ibraheem Qureshi for Petitioners.
Zafar Mahmood Anjum for the State.
2000 M L D 562
[Lahore]
Before Sheikh Abdur Razzaq, J
FAZAL‑UR‑REHMAN and 2 others‑‑‑Petitioners
versus.
BEGUM SUGHRA HAQUE‑‑‑Respondent
Civil Miscellaneous No. l‑C of 1998 and Civil Revision No.3420 of 1994, heard on 30th July, 1999.
(a) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), O. IV, Rr.14, 15, 17 & O. VII, R.1‑‑‑Suit for specific performance of agreement‑‑‑Competence‑‑‑Defect in plaint‑‑‑Rectification‑‑‑Suit was resisted by defendant contending that plaintiff had filed suit through her husband on the basis of general power of attorney executed long before filing of suit, but at the time of filing of suit said power of attorney was not in existence‑‑‑Validity‑‑‑Plaint though was initially signed by husband of plaintiff in his capacity as general attorney of plaintiff, but subsequently amended plaint was filed, which was duly signed by plaintiff herself‑‑‑Effect‑‑‑Even if there had been any defect in initial institution of plaint, it stood rectified by filing amended plaint which was duly signed by the plaintiff.
(b) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.VI, Rr. 14, 15 & 17‑‑‑Signing and verification of plaint‑‑‑Provisions contained .in O. VI, Rr.14 & 15, C.P.C. with regard to signing and verification of plaint were mere matter of procedure and if a plaint was not properly signed or verified, but was admitted and entered in the register of suits, it would not cease to be a plaint and the suit could not be said not to have been instituted merely because of existence of mere defects or irregularities in the matter of signing and verification of the plaint‑‑‑If defect in regard to the signature, verification or presentation of the plaint were cured on a day subsequent to the date of filing the suit, date of institution of the plaint was not to be changed to be subsequent date‑‑‑Date of institution of the suit or the date from which an amendment took effect, would not depend on the discretion of the Court.
(c) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O. VI, Rr. 14, 15 & 17‑‑‑Amendment of pleadings‑‑‑Discretion of Court‑‑‑Serve and extent‑‑‑Court had discretion to allow or not to allow amendment of the pleadings or re‑signing or re‑verification of the plaint‑‑Once discretion was exercised, amendment of the plaint would relate back to the original date of the suit‑‑‑Original date of institution of the plaint was not affected by amendment in the plaint or the fresh signature or verification of the plaint.
Mst. Rahim Noor v. Mst. Salim Bibi and 2 others PLD 1992 SC 30; Ch. Abdul Rashid v. Ch. Muhammad Tufail and others PLD 1992 SC 180; Qadir Bakhsh and 10 others v. Kh. Nizam ud Din Khan and 4 others 1997 SCMR 1267; All India Reporter Ltd., Bombay with Branch Office at Nagpur and another v. Ramchandra Dhondo Datar AIR 1961 Bom. 292; Malik Sajawal Khan v. The Deputy Commissioner, Sargodha and another PLD 1968 Lah. 527; Ghulam Mohi‑ud‑Din and another v. Noor Dad and 4 others PLD 1988 SC (AJ&K) 42; Ismail and another v. Mst. Razia Begum and 3 others 1981 SCIVIR 687; AIR 1961 Bom. 292; PLD 1968 Lah. 527
and PLD 1988 SC (AJ&K) 42 ref.'
A. Karim Malik for Petitioners. Mian Nisar Ahmad for Respondent.
Date of hearing: 30th July, 1999.
2000 M L D 566
[Lahore]
Before Sheikh Abdur Razzaq, J
MUHAMMAD SIDDIQUE‑‑‑Appellant
versus
STATE‑‑‑Respondent
Criminal Appeals Nos, 163, 342 and 350 of 1995, heard on 8th June, 1999
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss.302, 201 & 308‑‑‑Appreciation of evidence‑‑‑Extra‑judicial confession allegedly made by accused was not corroborated by any independent evidence and the same having not been made before the persons of authority carried no weight‑‑‑Three daughters of the deceased who could be the most important witnesses of the occurrence had neither been cited as witnesses nor examined by the prosecution to support its version which had raised an adverse presumption against it‑‑‑Deceased having survived by three daughters of the accused who was husband of the deceased, he could be convicted only under S.308, P.P.C. and not under S.302, P.P.C. and even on this legal score impugned judgment was not sustainable in law‑‑‑Accused was acquitted in circumstances.
Sarfraz Khan v. The State and 2 others 1996 SCMR 188; Mst. Naseem Akhtar v. The State 1995 PCr.LJ 339; Muhammad Aslam Pervaiz alias Ghazi v. The State 1995 MLD 664; Abdul Majeed v. The State 1994 PCr.LJ 281; 1994 MLD 387; Muhammad Younas alias Babu v. The State 1996 PCr.LJ 109 and Khalil‑uz‑Zaman v. Supreme Appellate Court, Lahore and 4 others PLD 1994 SC 885 ref.
Hafiz Khalil Ahmad for Appellant.
Malik Allah Yar for the Complainant, Masood Sadiq Mirza for the State.
Date of hearing: 8th June, 1999.
2000 M L D 577
[Lahore]
Before Muhammad Naseem Chaudhri, J
KHADIM HUSSAIN‑‑‑Appellant
versus
DEPUTY COMMISSIONER, HAFIZABAD and others‑‑‑Respondents
Writ Petition No.23300 of 1998, heard on 13th October, 1999.
(a) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑
‑‑‑‑Ss.42 & 161‑‑‑Sanction of mutation‑‑‑Appeal‑‑‑Competence‑‑‑Jurisdiction of Collector‑‑‑Where mutation was sanctioned by an Assistant Collector of either grade, an appeal under S.161, West Pakistan Land Revenue Act, 1967 against order of such sanction, was competent before the Collector.
(b) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑
‑‑‑‑Ss.42 & 161‑‑‑Notification No.6399‑91/22185‑E(F)III, dated 1‑7‑1991‑‑ Sanction of mutation‑‑‑Appeal‑‑‑Jurisdiction of District Collector/Deputy Commissioner‑‑‑Scope‑‑‑Appeal under S.161, West Pakistan Land Revenue Act, 1967 was not within the jurisdiction of District Collector/Deputy Commissioner.
NLR 1991 Punjab Statutes 22 ref.
(c) Maxim‑‑‑
‑‑‑‑" A communi observantia non est recedendum"‑‑‑Meaning‑-‑Where a thing was provided to be done in a particular manner, same had to be done in that manner and if not done, so would not be lawful.
(d) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑
‑‑‑‑Ss.42 & 161‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Sanction of mutation‑‑‑Appeal‑‑‑District Collector/Deputy Commissioner, set aside the order of sanction of mutation in appeal‑‑‑Validity‑‑‑Where a mutation was sanctioned under S.42, West Pakistan Land Revenue Act, 1967, appeal was to be preferred before and heard by the Assistant Commissioner/Collector‑‑‑Deputy Commissioner/District Collector had no jurisdiction to entertain any such appeal‑‑‑Order passed against sanction of mutation being coram non judice, order of the Deputy Commissioner/District Collector was set aside.
Syed Shamim Abbas Bokhari for Appellant.
Syed Zulfiqar Ali Bokhari, A.A.‑G. for Respondents Nos. 1 to 3.
Rana Abdur Rahim for Respondent No.4.
Date of hearing: 13th October, 1999.
2000 M L D 588
[Lahore]
Before Maulvi Anwar‑ul‑Haq, J
MUHAMMAD ISHAQ‑‑‑Appellant
versus
MUHAMMAD SADIQ‑‑‑Respondent
Regular Second Appeal No.2 of 1979, heard on 4th October, 1999
(a) Punjab Pre‑emption Act (I of 1913)‑‑‑
‑‑‑‑S.21‑‑‑Pre‑emption suit‑‑‑Death of pre‑emptor‑‑‑Effect‑‑‑Principle of abatement‑‑‑Where deceased pre‑emptor had in fact filed a suit and admittedly had a right of pre‑emption on the date of sale, such suit could have been continued by the legal heirs of the deceased pre‑emptor ‑‑‑Principle of abatement was not applicable in circumstances.
Muhammad Ismail v. Abdul Rashid and other AIR 1956 All. 1 distinguished.
Allah Dad and another v. Hukam Dad and others PLD 1960 (W.P. Lah. 900 ref.
(b) Punjab Pre‑emption Act (I of 1913)‑‑‑
‑‑‑‑S.21‑‑‑Civil Procedure Code (V of 1908), S.100 & O.XXII, R. 3‑‑‑Preemption suit‑‑‑Death of pre‑emptor during pendency of suit ‑‑‑Non-impleading of all the legal heirs of the deceased pre‑emptor as a party to the suit‑‑‑Effect‑‑‑One of the legal heirs joined the suit and the same was decreed by the Trial Court whereas the appeal was dismissed by the Lower Appellate Court‑‑‑Validity‑‑‑Where the other legal heirs had not thought it fit to join the contesting heirs in continuing the suit, there was nothing wrong with the proceedings of the Trial Court in continuing such suit and bringing the same to its logical end.
Azizur Rehman and others v. Muhammad Nawaz PLD 1998 SC 384; Muhammad Younas v. Khushal 1989 SCMR 69; Faiz Muhammad v. Chaudhary Fajar AIi.Khan and another AIR 1944 Lah. 172; Chhujju and others v. Jai Dayal and others AIR 1947 All. 297; Abdul Khaliq v. Abdul Ghani PLD 1969 Lah. 249 and Mardan v. Mst. Bilal _Jan and 3 others 1990 MLD 370 ref.
Sh. Naveed Shaharyar and Ch., Muhammad Sadiq for Appellant.
Aftab lqba1 Chaudhry and Mehdi Khan Chohan for Respondent.
Date of hearing: 4th October, 1999.
2000 M L D 603
[Lahore]
Before Riaz Kayani and Khawaja Muhammad Sharif, JJ
IMTIAZ ALI KHAN‑‑‑Petitioner
versus
THE STATE‑‑‑Respondent
Criminal Appeal No.122 and Criminal Miscellaneous No.1116‑M of 1999, decided on 28th July, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑Ss.410, 428 & 540‑‑‑Application for recording of additional evidence‑‑Accused at appeal stage had filed application for recording statement of Deputy Superintendent of Police about "alibi" of accused as additional evidence‑‑‑Maintainability‑‑‑Accused were being represented by a senior counsel at the time of their trial but during trial which went on for about three months, no application under S.540, Cr.P.C. for recording additional evidence was filed‑‑‑Accused, even in their examination under S.342, Cr.P.C. did not mention production of Deputy Superintendent of Police in their defence‑‑‑Accused not only did not produce the officer earlier to prove that they (accused) at time of occurrence were present in his office, but did not produce a single witness in their defence from the said office‑‑‑Recording of additional evidence was not necessary in circumstances.
1992 SCMR 2055 and PLD 1992 Lah. 340 ref.
Ijaz Hussain Batalvi for Petitioner.
M.A. Zafar for the Complainant.
Sultan Mahmood for the State.
Date of hearing: 28th July, 1999.
2000 M L D 616
[Lahore]
Before Maulvi Anwar‑ul‑Haq, J
SARDAR KHAN and others‑‑‑Appellants
versus
MUHAMMAD SIDDIQUE‑‑‑Respondent
Regular Second Appeal No.55 of 1999, heard on 29th September, 1999.
(a) Punjab Pre‑emption Act (IX of 1991)‑‑‑
‑‑S.6(2)‑‑‑Pre‑emption suit‑‑‑Non‑pleading of "Zarar and Zarurat" as mentioned in S.6(2), Punjab Pre‑emption Act, 1991‑‑‑Provision of S.6(2), Punjab Pre‑emption Act, 1991 had been declared repugnant to Injunctions of Islam by Supreme Court in the case of Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province reported in PLD 1994 SC 1‑‑‑Effect‑‑‑Suit was filed by pre‑emptors on 1‑9‑1990 and judgment of Supreme Court was to take effect from 31‑12‑1993 and did not have retrospective effect ‑‑‑Pre‑emptors were bound by law to plead "Zarar and Zarurat"‑‑‑Where such "Zarar and Zarurat" were not pleaded, .suit was rightly dismissed.
Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1; Said Kamal's case PLD 1986 SC 260; Mst. Bashiran Bibi v. Muhammad Kashif Khan and others PLD 1995 Lah. 200 and Fazal Ellahi v. District Judge, Attock 1993 CLC 85 rel.
(b) Civil Procedure Code (V of 1908)‑‑‑‑
‑‑‑‑O.Vl, R,17 & S.100‑‑‑Second appeal‑‑‑Application for amendment of plain ‑‑‑Prayer for amendment of plaint made by the appellant at the time of second appeal‑‑‑Such application having been made too late, amendment was not allowed.
Fazal Ellahi v. District Judge, Attock 1993 CLC 85 ref.
Khan Khizar Abbas Khan for Appellants.
Shahid Waheed for Respondent.
Date of hearing: 29th September, 1999.
2000 M L D 625
[Lahore]
Before M. Javed Buttar, J
MUHAMMAD NASIR‑‑‑Petitioner
versus
NASEER‑UD‑DIN and 2 others‑‑‑Respondents
Writ Petition No. 14698 of 1998, heard on 10th November, 1999
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑
‑‑‑‑S. 13(6)‑‑‑Tentative rent order‑‑‑Non‑compliance‑‑‑Rent Controller, jurisdiction of‑‑‑Scope‑‑‑Rent Controller could pass an order for the deposit of arrears of rent, on the basis of material placed on record by both the parties and defence of the tenant could be struck off due to non‑compliance of such order‑‑‑Such an assessment of rent was merely tentative determination of rent payable and the same was subject to the final decision at the end of the trial‑‑‑Before passing the order for deposit of monthly rent, it was incumbent upon the Rent Controller to resolve the controversy, if any, between the parties as to from which month the rent of the premises was due‑‑‑Due to failure of Rent Controller to resolve such controversy, order passed for the deposit of arrears of the rent was set aside.
Tauqeer Shahid v. Additional District Judge and others 1993 CLC 2435 fol.
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑
‑‑‑‑S.13(6)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Tentative rent order‑‑‑Rent Controller passed such order, without any material available on record‑‑‑Tentative rent order passed by Rent Controller under S.13(6), West Pakistan Urban Rent Restriction Ordinance, 1959, was challenged in appeal after the passing of the final ejectment order by Rent Controller‑‑‑Lower Appellate Court dismissed appeal‑‑‑Validity‑‑‑High Court in exercise of its Constitutional jurisdiction could look into the legality of the order passed by the Rent Controller under S.13(6), West Pakistan Urban Rent Restriction Ordinance, 1959‑‑‑Where the Rent Controller directed the tenant to deposit arrears of rent, without any material available on record and without considering the pleas of tenant, such an order was arbitrary on the face of it as no reasons had been given by the Rent Controller for demanding such rent dues‑‑‑Orders of the Rent Controller as well as of Lower Appellate Court having not been passed in accordance with law same were declared to be without lawful authority, and of no legal effect by High Court in exercise of its Constitutional jurisdiction.
Tauqeer Shahid v. Additional District Judge and others 1993 CLC 2435; Abdul Hafeez v Mst. Zubaida Khatoon 1992 CLC 471 and Taifure v. Muhammad Irshad Sipra and others 1982 CLC 314 rel.
Zubaida Begum v. Muhammad Zaheer 1999 CLC 917; Khalid Hamid v. Additional District Judge, Sahiwal and others 1991 SCMR 359; Mirza Nazir Ahmed Baig v. Additional District Judge, Kasur 1996 CLC 1616; Malik Muhammad Ilyas v. Kh. Muhammad Younas 1992 CLC 526; Muhammad Bashir v. Allah Dad and another 1983 'CLC 1309; Riaz‑urRehman v. Syed Akhtar Hussain Rizvi 1984 CLC 2731; Haji Abdul Sattar v. Mst. Shiriti Bai and others 1985 CLC 2489; Muhammad Yahya v. S. Jamilur‑Rehman 1993 CLC 2001; Ghulam Qadir v. Hazrat Shah PLD 1964 (W‑P.) Pesh. 50; Gurdasmal v. Pahlaj Ram and another 1986 CLC 43 and Asif Chughtai v. Mrs. Zile Huma and others 1995 SCMR 741 ref.
Muhammad Naseem Khan for Appellant. Ch. Muhammad Arshad Ramday for Respondents.
Date of hearing: 10th November, 1999.
2000 M L D 631
[Lahore]
Before Ali Nawaz Chowhan, J
MUHAMMAD SHAFI through Legal Heirs‑‑‑Petitioner
versus
PROVINCE OF PUNJAB through District Collector, Multan and 4 others‑‑‑Respondents
Writ Petitions Nos. 10211, 8679, 10231, 10210 and 10208 of 1999, decided on 26th November, 1999.
(a) Land Acquisition Act (I of 1894)‑‑
‑‑‑‑S. 9‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition=‑‑Acquisition of land‑‑‑Non‑issuance of notice under S.9, Land Acquisition Act, 1894, to all the landowners‑‑‑Petitioner was a co‑owner of the land acquired and no such notice was issued to her ‑‑‑Effect Valuable and vested rights of citizens were too sacred to be taken away through circumvention of a prescribed procedure‑‑‑Where the acquisition authority during acquisition proceedings issued such notice to some interested persons and presumed that it was a notice to all, such proceedings were of no legal effect and award was set aside.
Sardar Begum v. The Lahore Improvement Trust, Lahore and 3 others PLD 1972 Lah. 458; NiW Dutt v. Secretary of State AIR 1924 Pat. 608 and Deputy Commissioner v. Abdul Karim Moosa and others 1982 CLC 1542 ref.
(b) Land Acquisition Act (I of 1894)‑‑‑
‑‑‑‑S. 3(c)‑‑‑Award of compensation‑‑‑powers of Collector ‑‑‑Scope‑‑‑ Collector is a persona designata under the provisions of Land Acquisition Act, 1894 for making an award.
(c) Land Acquisition Act (I of 1894)‑‑
‑‑‑‑Ss. 11 & 12‑‑‑Award of compensation‑‑‑Award made by Collector based on instructions‑‑‑Validity‑‑‑Award had to be of such a sum as in the opinion of the Collector was fair and proper compensation‑‑‑Opinion of other person with regard to sum of award would not be fair and proper compensation‑‑Award made by the Collector based or, instructions, thus; could not be sustained.
Abdul Aziz Naseem for Petitioner.
Ch. Saghir Ahmad, Standing Counsel.
Tahir Haider Wasti, Asstt. A.‑G.
2000 M L D 660
(Lahore)
Before Amir Alam Khan, J
PAKISTAN INDUSTRIAL CREDIT AND INVESTMENT CORPORATION LIMITED (PICIC)‑‑‑Petitioner
versus
Messrs WASEEM BEVERAGES LIMITED through Chief Executive‑‑‑Respondent
Civil Original No.2 of 1995, heard on 29th November, 1999.
Companies Ordinance (XLVII of 1984)‑‑‑
‑‑‑‑Ss.305 & 306‑‑‑Winding up of company‑‑‑Petition for winding up of company was filed on grounds of inability of the company to pay its debts and the business having been suspended for over a period of three years‑‑Petition for winding up was filed by financial institution which had provided financial assistance to the company‑‑‑Despite many opportunities granted to the company to file written statement, the same was not filed‑‑‑Defence of the company was struck off and the matter was proceeded ex parse‑‑‑Effect‑‑Liability of the debts was not denied by the company in its reply to the notice under S.306 of Companies Ordinance, 1984, and no reason for the same was disclosed on record‑‑‑Company, therefore, was unable to pay its debts‑‑‑Non‑payment of debts and suspension of project for over a period of 2/3 years was enough to conclude that substratum of the company had vanished‑‑‑Company was compulsorily wound up in circumstances.
Muhammad Sair Ali for Petitioner.
Nemo for Respondent.
Date of hearing: 29th November, 1999.
2000 M L D 689
[Lahore]
Before Zafar Pasha Chaudhry, J
PAKISTAN STATE OIL COMPANY LIMITED through Divisional Manager, Multan‑‑‑Appellant
versus
ABDUR REHMAN KHAN and 6 others‑‑‑‑Respondents
Second Appeal from Order No. 6 of 1997, decided on 15th December, 1999.
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑‑
‑‑‑‑S.13(6)‑‑‑Tentative rent order‑‑‑Purpose Provision of S.13(6), West Pakistan Urban Rent Restriction Ordinance, 1959 has been enacted to provide guarantee to the landlord of payment of rent‑‑‑Determination of real default, fair rent, such questions are to be decided by Rent Controller at the time of ultimate disposal of ejectment application‑‑‑Landlord has a right to regularly receive the rent as ordered by the Rent Controller during the interregnum‑‑‑Such provision is mandatory and its violation or non‑compliance is followed by penalty that the defence of the tenant is to be struck off and the landlord to be put into possession.
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑‑
‑‑‑‑Ss.13(6) & 15‑‑‑Failure to comply with tentative rent order‑‑‑Striking off defence‑‑‑Concurrent findings of both Courts below‑‑‑Tenant committed wilful default of order of the Rent Controller and failed to deposit rent and no one appeared before the Rent Controller to address arguments on the application under S.13(6), West Pakistan Urban Rent Restriction Ordinance, 1959‑‑‑Concurrent findings of both the Courts below had been recorded validly after assessing the evidence as well as law correctly‑‑Appeal was dismissed in circumstances.
1981 SCMR 538; 1983 CLC 2813 and 1979 SCMR 496 ref.
Messrs Islam Coal Co. v. Mir Ghulam Rasool and 2 others 1988 SCMR 1906; Haji Shakar Khan v. Abdul Qadir and others 1991 SCMR 1246; Muhammad Akram v. Muhammad Zafar and others 1987 SCMR 1788; Madan Gopal v. Maran Bepari PLD 1969 SC 617 and Lal Badshah v. Sohail Khan 1970 SCMR 565 distinguished.
Malik Muhammad Rafique Rijwana for Appellant.
Aziz Abbas Beg for Respondents.
Dates of hearing: 2nd November and 15th December, 1999.
2000 M L D 706
[Lahore]
Before Karaniat Nazir Bhandari, J
Mst. MAQSOOD BASHIR‑‑‑Petitioner
versus
BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE and another‑‑‑Respondents
Writ Petition No.4404 of 1999, heard on 8th December, 1999.
Board of Intermediate and Secondary Education Lahore Examination Rules, 1993‑‑‑
‑‑‑‑Chap. I, Rr. 5 & 17‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Examination in additional subjects in another Board‑‑‑Permissibility‑‑‑Candidate coming from other Board intended to take examination in additional subjects from the Board‑‑‑Validity‑‑‑Where a candidate wanted to take such examination he/she must have previously passed the examination from the same Board‑‑‑Candidate having appeared in examination in one Board, could not take examination in additional subjects from another Board.
Ikram‑ud‑Din Khan for Petitioner.
Shahid Waheed for Respondents.
Date of hearing: 8th December, 1999.
2000 M L D 720
[Lahore]
Before Syed Jamshed Ali, J
NAZIR AHMAD‑‑‑Appellant
versus
Mst. JAINNAN through Legal Heirs‑‑‑Respondent
Regular Second Appeal No. 535 of 1976, heard on 1st November, 1999
(a) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S.12‑‑‑Specific performance of agreement to sell‑‑‑Allegation of execution of agreement during "Mart‑ul‑Maut" and without consideration‑‑‑ Scope‑‑‑Onus,‑‑‑Once the execution of agreement was proved by legal evidence as required by law, very heavy onus shifted to the respondents to demonstrate that the same was made during "Marz‑ul‑Maut" or was without consideration.
Muhammad Younas Khan and 12 others v. Government of N.‑W.F.P. through Secretary, Forest and Agricultural, Peshawar and others 1993 SCMR 618 and Begum Shamas-un-Nisa v. Said Akbar Abbasi PLD 1982 SC 413 ref.
(b) Specific Relief Act (I of 1877) ----
---S.12---Civil Procedure Code (V of 1908), S.100---Second appeal---Specific performance of agreement to sell‑‑‑Concurrent findings of fact‑‑‑Suit of the plaintiff was concurrently dismissed by both the Courts below‑‑‑Decision of the case was based on a plea which was not even taken in the written statement and the plea taken in defence remained unsubstantiated‑‑‑Validity‑‑‑Finding of fact was not liable to be interfered with in second appeal, but where the execution of the agreement was duly proved, interference could be made in second appeal‑‑‑Judgments and decrees of both the Courts below were set aside and the suit of the plaintiff was decreed.
Dil Murad and others v. Akbar Shah 1986 SCMR 306; Muhammad Amir v. Khan Bahadur and another PLD 1996 SC 267; Abdul Rashid v. Bashiran and another 1996 SCMR 808 and Musarrat Sultana v. Muhammad Saeed 1997 SCMR 1866 ref.
Ch. Qadir Bux, Mirza Mehmood Ahmai and Aftab Ahmad for Appellant.
Malik Amjad Pervez for Respondent No. 1. Mehmood Ahmad Ch. for Respondents Nos.2 to 4 Mian Khalid Hussain for Respondent No. 1 (III).
Date of hearing: 1st November, 1999
2000,M L D 729
[Lahore]
Before Ali Nawa2 Chowhan, J
SAHIB KHAN‑‑‑Petitioner
versus
MUHAMMAD RAMZAN and another‑‑‑Respondents
Civil Revision No.722 of 1999, decided on 6th July, 1999.
(a) Civil Procedure Code (V of 1908)‑‑‑‑
‑‑‑‑O.XL, R.1‑‑‑Appointment of Receiver ‑‑‑Prerequisites‑‑‑Scope‑‑ Appointment of a Receiver is the harshest remedy available, and therefore, the same has to be sparingly used when there is danger to the property and presentation of property is otherwise not possible‑‑‑Applicant for obtaining the appointment of a Receiver has to establish a prima facie title to the property, besides the fact that the, appointment of Receiver was just and convenient.
(b) Civil Procedure Code (V of 1948)‑‑
‑‑‑‑S.94‑‑‑Preventing the ends of justice from being defeated‑‑‑Powers of Court‑‑‑Scope‑‑‑In order to prevent the ends of justice from being defeated, general powers have been conferred upon a Court to take actions as envisaged under S.94, C.P.C.
(c) Civil Procedure Code (V of 1908)‑‑‑‑
‑‑‑‑O.XL, R.1‑‑‑Appointment of Receiver‑‑‑Parties were joint owners of a tractor and the same was in possession of the defendant‑‑‑Plaintiff filed a suit for rendition of accounts and during such proceedings an application for the appointment of Receiver was filed‑‑‑Trial Court allowed the application and Station House Officer of police station was appointed as Receiver of that tractor‑‑‑Lower Appellate Court reversed the order of the Trial Court‑‑Plaintiff nourished fear that property would be damaged or embezzled or wasted if the same remained in the custody of the defendant ‑‑‑Validity‑‑Defendant was a co‑owner of the tractor and as such would not allow his own property to be wasted, destroyed or misused‑‑‑Defendant with the admitted entitlement to the extent of half share was a better custodian of the property than the Station House Officer of police station who was entrusted with the custody of tractor by the Trial Court‑‑‑Defendant in order to prevent the ends of justice from being defeated was directed to furnish security against half of the sale price of the tractor and would produce the tractor whenever required by the ,Trial Court‑‑‑Defendant was restrained from selling or giving the same on lease to anyone till the disposal of the case and would not waste or destroy the property‑‑‑Order of the Trial Court was modified accordingly.
Malik Noor Muhammad Awan for Petitioner.
Birjees Nagi for Respondents.
Date of hearing: 24th June, 1999.
2000 M L D 734
[Lahore]
Before Khalil‑ur‑Rehman Ramday and Asif Saeed Khan Khosa, JJ
AMMAD RAMZAN‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Criminal Appeal No.57 and Murder Reference No. 19 of 1993, decided on 4th August, 1999.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss.302(a) & 302(b)‑‑‑Appreciation of evidence‑‑‑Case was of a single accused and of a daylight occurrence ‑‑‑F.I.R. was promptly lodged specifically naming the accused as the sole perpetrator of the alleged offence‑‑‑Eye‑witnesses who were public officials having no reason for false implication of accused were natural witnesses of the occurrence and their independence and consistency had inspired confidence‑‑‑Stand taken by accused that deceased having been killed by Jail Authorities due to his mis-behaviour was not substantiated on record‑‑‑Motive set up by the prosecution having been fully established, incriminating recoveries and medical evidence had corroborated the ocular testimony‑‑‑Weapons of offence snatched away from the accused immediately after the occurrence were found stained with human blood‑‑‑Accused was undergoing a sentence of imprisonment for life for an offence under S.302, P.P.C. at the time when he committed the present murder in jail‑‑‑Requirements of S.304, P.P.C. having not been fulfilled in the case, conviction of accused under S.302(a), P.P.C. was altered to S.302(b), P.P.C. and his sentence of death as Qisas was converted into sentence of death as Tazir‑‑‑Appeal of accused was dismissed accordingly.
Ch. Muhammad Hussain Chhachhar for Appellant.
Ch. Muhammad Ishaque for, the State.
Date of hearing: 4th August, 1999.
2000 M L D 746
[Lahore]
Before Mian Allah Nawaz and Muhammad Zafar Yasin, JJ
ZULFIQAR ALI ‑‑‑Petitioner
versus
ELECTION TRIBUNAL/CIVIL JUDGE 1ST CLASS, KHANPUR and 5 others‑‑‑Respondent
Writ Petitions Nos.2744 to 2746 of 1998, decided on 29th September, 1998.
(a) Punjab Local Councils (Elections) Rules, 1979‑
‑‑‑‑R.44‑A‑‑‑Representation of the People Act (LXXXV of 1976), S.39‑‑Recounting of votes‑‑‑Election Tribunal, jurisdiction of‑‑‑Election Tribunal cannot order recounting of votes until and unless some evidence is adduced by the applicant claiming such recounting or there is some cogent material before the Tribunal.
Kanwar Ijaz Ali v. Irshad Ali and 2 others PLD 1986 SC 483; Muhammad Zulqarnain v. Muhammad Anwar and others 1990 CLC 736; Julius Salik v. Returning Officer and others 1991 MLD 589; Muhammad Ashgar v. Shah Muhammad Awan PLD 1986 SC 542; Muhammad Din v. Abdul Qayyum 1987 SCMR 324; Hakim Ali Bhatti v. Qazi Abdul Hakim 1986 CLC 1786 and Sardar Gul Khitab v. Javed Iqbal Abbasi 1988 CLC 945 ref.
(b) Punjab Local Government Ordinance (VI of 1979)‑‑‑
‑‑‑‑S.25‑‑‑Punjab Local Councils (Elections) Rules, 1979, R.44‑A‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Recounting of votes‑‑‑Basis of such recounting was affidavits of the unsuccessful candidates‑‑‑Validity‑‑‑Unsuccessful candidates had not produced an iota of evidence before Election Tribunal while claiming recounting of ballots and banked upon vague and uncertain affidavits which had been controverted‑‑‑Such affidavits were not a sufficient material in law to warrant conclusion that recounting was necessary‑‑‑Where there was no material whatsoever except affidavits, the order of recounting passed by Election Tribunal was without jurisdiction and of no lawful consequences, and the proceedings of recounting of ballots were coram non judice and without lawful support‑‑‑Order of the Election Tribunal was set aside.
Nasir Mahmood Mughal v. Muhammad Azam and others 1987 MLD 2526; Muhammad Shafi v. Muhammad Azam 1982 CLC 2111 and Haji Atta Muhammad v. Malik Shabbir Ahmad Khan and another 1985 SCMR 960 ref.
(c) Punjab Local Councils (Election Petitions) Rules, 1979‑‑‑
‑‑‑‑R.8(2)‑‑‑Civil Procedure Code (V of 1908), O.XIX, Rr. 1 & 2‑‑Production of affidavit‑in‑evidence‑‑‑Powers of Election Tribunal to determine controversies on the basis of such affidavits‑‑‑Scope‑‑‑Election Tribunal does have such powers but such affidavit must satisfy the requirements of O.XIX, Rr. 1 & 2, C.P.C.
Abdul Hamid v. Maram Dad PLD 1966 (W.P.) Lah. 16 ref.
(d) Civil Procedure Code (V of 1908)‑‑‑‑
‑‑‑‑O. XIX, R.3‑‑‑Production of controverted/disputed affidavit as material of evidence‑‑‑Validity‑‑‑Such affidavit is neither evidence nor a material of evidence under the provisions of Art. 1, Qanun‑e‑Shahadat. 1984.
(e) Administration of justice‑‑‑
‑‑‑‑ Law favours adjudication at merits and abhors ex parte decision.
Sardar Muhammad Hussain and Masud Ahmad Khan for Petitioner.
M. Jaffar Hashmi for Respondents.
Date of hearing: 29th September, 1998.
2000 M L D 762
[Lahore]
Before Muhammad Akhtar Shabbir, J.
MUHAMMAD SHAM and another‑‑‑Petitioners
versus
S: H.O., POLICE STATION TIBBA SULTANPUR, TEHSIL MAILSI, DISTRICT VEHARI and 3 others‑‑‑Respondents
Criminal Miscellaneous No. 101‑Q of 1999, decided on 7th December, 1999.
(a) Punjab Tenancy Act (XVI of 1887)‑‑‑
‑‑‑‑S. 4(5) & (8)‑‑‑"Tenant" and "tenancy "‑‑‑Definition‑‑‑Tenant would mean a person holding land under another person‑‑‑Tenant, but for a special contract, would be liable to pay rent for that land to that other person‑‑Tenancy would meats a parcel of land, held by a tenant or landlord under one lease or one set of conditions.
(b) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 561‑A‑‑‑Penal Code (XLV of 1860), S. 379/411‑‑‑Quashing of proceedings‑‑‑Case against accused was that they had forcibly picked up cotton crops from the land of complainant‑‑‑Accused were in possession over the land of complainant as tenants and cultivators thereof and had sown crops end harvested same as tenants‑‑‑If accused being tenant had taken away produce without payment of share of "Batai" to complainant/landlady, they had committed no penal offence‑‑‑In case of non‑payment of "Batai" of crops to complainant/landlady she could resort to remedy by filing of a suit under Punjab Tenancy Act, 1887, for recovery of same or its price in the Court of Assistant Collector or Collector‑‑‑Dispute between parties over share of produce could be decided by Tenancy Tribunal and not by filing of criminal proceedings‑‑‑Proceedings pending against accused under S.379/411, P.P.C. were ordered to be quashed in circumstances.
Abdullah and 4 others v. State 1998 PCr,.LI 732; Fakhasul Islam and.anohter v. State PLD 1968 Dacca 678 and Ishaq Mia and others v. Abdul Malek PLD 1958 Dacca 564 ref.
Kh. Munir Ahmad Siddiqui for Petitioners. Malik Riaz Hussain for the Complainant.
Syed Altaf Hussain Bokhari for the State.
Tahir Haider Wasti, A.A.G.
Date‑of hearing: 7th December, 1999.
2000 M L D 774
[Lahore]
Before Raja Muhammad Sabir, J
Messrs SHIFA INTERNATIONAL HOSPITAL‑‑‑Petitioner
versus
WAPDA‑‑‑Respondent
Writ Petition No. 1675 of 1999, heard on 29th October, 1999.
(a) West Pakistan Water and Power Development Authority Act (XXXI of 1958)‑‑‑
‑‑‑‑Ss. 12, 13(1) & 25(2)‑‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑‑Change of electricity tariff from C‑2 to A‑2 ‑‑Entitlement of tariff C‑2 on the basis of bulk supply‑‑‑Validity‑‑‑Consumer was a private hospital, and a commercial organization run by company registered with stock exchange, whereas tariff C‑2 was available to Trust Hospitals and Private Hospitals were not entitled to tariff C‑2 but fell in the category of tariff A‑2‑‑‑Consumer, who did not fulfill the requisite conditions prescribed under the law, was not entitled to avail tariff C‑2 on the ground of bulk supply only‑‑‑Validity of order of converting initial tariff of consumer from A‑2 to C‑2 was under serious clouds, as the officer giving the benefit of such tariff was facing departmental inquiry‑‑‑Authority, thus, had rightly demanded the difference of amount due as a result of such change in the tariff from C‑2 to A‑2 in circumstances.
(b) Estoppel ---
‑‑‑‑Promissory estoppel ‑‑‑Applicability and limitations detailed.
Doctrine of promissory estoppel is subject to the following limitations:‑‑
(i) the doctrine of promissory estoppel cannot be invoked against the Legislature or the laws framed by it because the Legislature cannot make a representation;
(ii) promissory estoppel cannot be involved for directing the doing of the thing which was against the law when the representation was made or the promise held out;
(iii) no agency or authority can be held bound by a promise or representation not lawfully extended or given;
(iv) the doctrine of promissory estoppel will not apply where no steps have been taken consequent upon the representation or inducement so as to irrevocably commit the property or the reputation of the party invoking it; and
(v) the party which has indulged in fraud or collusion for obtaining some benefits under the representation cannot be rewarded by the enforcement of the promise.
Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652 rel.
Zaheer Bashir Ansari for Petitioner.
Ahmad Bilal Sufi for Respondent.
Date of hearing : 29th October, 1999.
2000 M L D 781
[Lahore]
Before Muhammad Zafar Yasin, J .
MUHAMMAD SIDDIQ‑‑‑Petitioner
versus
ASHRAF ALI and 3 others‑‑‑Respondents
Writ Petition No. 843 of 1981, heard on 10th December, 1999.
Punjab Pre‑emption Act (I of 1913)‑‑
‑‑‑‑Ss. 21 & 28‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Pre‑emption suit‑‑‑Failure to implead rival pre‑emptor in a preemption suit ‑‑‑Pre‑emptor filed pre‑emption suit before Collector and did not implead rival pre‑emptor in the suit‑‑‑Collector decreed the suit in favour of pre‑emptor while Additional Commissioner set aside the judgment of Collector in appeal‑‑‑Revision against order of Additional Commissioner was dismissed by Board of Revenue‑‑‑Validity‑‑‑Where rival pre‑emptor was not made party to the suit as required under S.28, Punjab Pre‑emption Act, 1913, order passed by Collector in favour of pre‑emptor was void‑‑Additional Commissioner having failed to remand the case for fresh decision of the suit after impleading rival pre‑emptors as party and accepting the appeal, superstructure of the order of Board of Revenue was based on void orders‑‑‑Orders of the Courts below were illegal, void and without lawful authority and the same were set aside‑‑‑Case was remanded to the Collector for decision afresh after impleading rival pre‑emptor to the suit in circumstances.
Shahzad Shaukat for Petitioner.
Nasir Rizvi for Respondents Nos. l and 2.
Date of hearing: 10th December, 1999.
2000 M L D 785
[Lahore]
Before. Sh. Amjad Ali, J
Messrs PETROSIN PRODUCTS (PVT.) LIMITED through Representative and others‑‑‑Petitioners
versus
GOVERNMENT OF PAKISTAN through Secretary, Privatisation Commission of Pakistan, Ministry of Finance Government of Pakistan, Islamabad and 3 others‑‑‑Respondents
Civil Revision No.374 of 1997, decided on 3rd. March, 1999.
(a) Arbitration Act (X of 1940)‑‑‑‑
‑‑‑‑Ss.20, 39 & 41‑‑‑Civil Procedure Code (V of 1908), Ss.94, 115, 151 & O.XXXIX, Rr.1, 2‑‑‑Application to file arbitration agreement in Court and application for interim injunction‑‑‑Refusal of grant of interim injunction‑‑Remedy‑‑‑No appeal against the refusal of interim injunction in an application under S.41 of the Arbitration Act, having been provided under S.39, Arbitration Act, 1946 only revision and not appeal could be filed against refusal of interim injunction.
Province of Baluchistan v. Sardar Muhammad Usman Khan PLD 1987 Quetta 33; NLR 1980 AC 542; The State of Himachal Pradesh and another v. Messrs H.S. Sobti & Co. AIR 1973 Him. Pra. 1 and Messrs Sharma Ice Factory v. Messrs Jewel Ice Factory and others AIR 1975 J&K 25 ref.
(b) Arbitration Act (X of 1940)‑‑‑
‑‑‑‑Ss.20, 39 & 41‑‑‑Civil Procedure Code (V of 1908), Ss.94, 1.15, 151 & OXXXIX, Rr. 1, 2‑‑‑Application to file arbitration agreement in Court‑‑Interim injunction, grant of‑‑‑Matter between parties having not been resolved, petitioner moved application under S.20, Arbitration Act, 1940 for referring matter to sole Arbitrator in terms of agreement arrived at between the parties in that respect‑‑‑Petitioner alongwith the said application also filed application for grant of interim injunction praying that respondent be restrained from, encashing Bank guarantee furnished by petitioner for payment of balance amount, till disposal of the petition and completion of arbitration process‑‑‑Court accepted plea of petitioner co refer matter to sole Arbitrator, but turned down application for grant of interim injunction‑‑Validity ‑‑‑Acceptance of plea of petitioner for referring matter to sole Arbitrator, prima facie having proved that a dispute had arisen between parties requiring determination through Arbitrator, it was not justified for Court to deny relies of temporary injunction after the Court had referred dispute to Arbitrator for determination.
Mian Gal Hassan Aurangzeb, Bar‑at‑Law for Appellant.
Nemo for Respondents Nos. l and 3.
Saeed Ahmed Sheikh for Respondent No.2.
Sikandar Bashir for Respondent No.4.
Dates of hearing: 25th and 26th February, 1999.
2000 M L D 793
[Lahore]
Before Muhammad Akhtar Shabbir, J
KHADIM HUSSAIN ‑‑‑Petitioner
versus
STATION HOUSE OFFICER, POLICE STATION ABDUL HAKIM, DISTRICT KHANEWAL and 2 others‑‑‑Respondents
Writ Petition No. 11164 of 1999, heard on 7th December, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑S.561‑A‑‑‑Penal Code (XLV of 1860), S.379‑‑‑Quashing of F.I.R.‑‑‑Case against accused was that he had stolen produce of complainant without paying his share‑‑‑Relationship of landlord and tenant .was established between complainant and accused‑‑‑If accused/tenant had lifted crops without payment of share to landlord/complainant, accused/tenant had not committed any offence as his action would not fall within ambit of provisions of S.378, P.P.C.‑‑‑Accused/tenant already in occupation, cultivating and enjoying land of complainant, whether with or without title could not be charged of offence of theft under S.379, P.P.C. for removing produce of said land‑‑‑Case under S.379, P.P.C. having not been constituted F.I.R. registered against him was quashed.
Fakharul Islam v. The State PLD 1968 Dacca 678; Ishaq Mian and others v. Abdul Malik PLD 1958 Dacca 564 and Abdullah v. The State 1998 PCr.L.J. 732 ref.
Mian Arshad Latif for Petitioner.
Malik Muhammad Tariq Nonari for Respondent No.2, Tahir H. Wasti, A.A.‑G.
2000 M L D 799
[Lahore]
Before Maulvi Anwarul Haq, J
MUHAMMAD YOUSAF‑‑‑Petitioner
versus
THE STATE‑‑‑Respondent
Criminal Revision No. 139 of 1998, decided on 1st December, 1999.
Prohibition. (Enforcement of Hadd) Order (4 of 1979)‑‑‑
‑‑‑‑Art. 3/4‑‑‑Control of Narcotic Substances Ordinance (VI of 1995), S.9‑C‑‑‑Criminal Procedure Code (V of 1898), S.439‑‑‑Acquittal of accused‑‑‑Destruction of confiscated property‑‑‑Application for release of motorcycle and documents‑‑‑Accused was acquitted by Trial Court with an observation that case property, if any, was confiscated, could be destroyed‑‑One k.g. opium, one kg. of Charas and motorcycle on which accused was allegedly riding at the time he was intercepted by police were recovered from accused‑‑‑Opium and Charas recovered from accused were not produced by prosecution in evidence‑‑‑Destruction of said narcotics only was in mind of Trial Court while passing order in that respect and there was no reason to order destruction of motorcycle recovered from the accused‑‑‑Order of Trial Court pertaining to destruction of motorcycle as also dismissal of application for release of motorcycle, registration book and licence of motorcycle, suffered from illegality as well impropriety which was set aside.
Ahmad Raza for Petitioner.
Qamarul Hassan Thaheem for the State.
Date of hearing: 1st December, 1999.
2000 M L D 801
[Lahore]
Before Syed Najam‑ul‑Hassan Kazmi, J
Syed SHAFFAT HUSSAIN ‑‑‑Appellant
versus
KAMRAN KHOKHAR‑‑‑Respondent
First Appeal from Order No.4 of 2000, decided on 13th January, 2000.
Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S.51 & O.XXI, Rr.37, 40‑‑‑Execution of decree‑‑‑Detention of judgmentdebtor‑‑‑Judgment‑debtor was sent to prison with the condition that he should remain in prison unless decretal amount was paid‑‑‑Validity‑‑Judgment‑debtor could not have been sent to prison unless proved that he had means to pay decretal amount and that he had refused to pay amount or that he was leaving territorial limits of Court or would defeat decree by transferring property during pendency of suit‑‑‑Non‑speaking order sending judgment‑debtor to prison, passed mechanically without complying with provisions of S.51, C.P.C. was suspended, in circumstances.
M. Ajmal Khan, Advocate.
2000 M L D 812
[Lahore]
Before Syed Najam‑ul‑Hassan Kazmi, J
IMPERIAL CHEMICAL INDUSTRIES PLC, IMPERIAL CHEMICAL HOUSE, ENGLAND‑‑‑Appellant
versus
THE REGISTRAR OF TRADE MARKS through Branch Trade Marks Registry, Mcleod Road, Lahore‑‑‑Respondent
First Appeal from Order No.252 of 1991, heard on 28th January, 1999.
Trade Marks Act (V of 1940)‑‑‑
‑‑‑‑S.70‑‑‑Application for registration of trade mark of the appellant was dismissed by Registrar on a public holiday‑‑‑Contention by appellant was that he was condemned unheard‑‑ Validity‑‑‑Where order was stated to have been announced on a public holiday, it supported the plea of appellant that opportunity of hearing was not allowed and that application was rejected in his absence and‑without considering the real point raised in the application‑‑Appeal was allowed and order of Registrar was set aside in circumstances.
Hassan Irfan Khan with Sajjad A. Khokhar for Appellant.
Nemo for Respondent.
Date of hearing: 28th January, 1999.
2000 M L D 820
[Lahore]
Before Ihsan‑ul‑Haq Chaudhry, Syed Najam‑ul‑Hasan Kazmi and Maulvi Anwarul Haq, JJ
MUHAMMAD AHMAD SIDDIQUI and 11 others‑‑‑Appellants
versus
COLLECTOR, LAHORE DISTRICT, LAHORE and 4‑others‑‑‑Respondents
Intra‑Court Appeals Nos.257, 354, 475, 476, 477 and 642 of 1993 in Writ Petition No.5585 of 1990, decided on 28th June, 1999.
(a) Land Acquisition Act (I of 1894)‑‑‑
‑‑‑‑Ss.4, 6 & 17‑‑‑Acquisition of land for public purpose‑‑‑Duty of Court‑‑Authorities, no doubt were empowered to judge as to whether land was required for public purpose and also that the urgency existed within meaning of S.17 of Land Acquisition Act, 1894 to acquire land, but Courts would always be duty bound to see that during course of acquisition proceedings, Authorities had applied their mind or not.
Muhammad Mushtaq Ahmad Khan and 2 others v. The Assistant Commissioner, Sialkot and 3 others PLD 1983 Lah. 178; Dr. Muhammad Nasim Javed v. Lahore Cantonment Housing Society Ltd. through the Secretary, Fortress Stadium, Lahore Cantt. and 2 Qthers PLD 1985 Lah, ,552; Mullah Ghulam Ali and others v. Commissioner of Karachi and 2 others PLD 1983 Kar. 602; Ratilal Shankara Bhai v. State of Gujarat and others AIR 1970 SC 984 and Federation of Pakistan v. Province of Punjab 1993 SCMR 1673 ref.
(b) Mala fides‑‑‑
‑‑‑‑ Meaning and proof‑‑‑Malice in law and malice in fact ‑‑‑Distinction‑‑Mala fides or malice, was not an abstract phenomena‑‑‑Maya fide was to be specifically alleged and proved‑‑‑Whatever was done in violation of law could not be said to be done in good faith and what was not done in good faith was mala fides.
Malik Ghulam Mustafa Khar and others v. Pakistan and. others PLD 1988 Lah. 49; Muhammad Akbar and 7 others v. The Commissioner, Rawalpindi Division and 2 others PLD 1976 Lah. 747 and Collector Customs, Excise and Sales Tax, Peshawar and 3 others v. Messrs Flying Kraft Paper Mills (Pvt.) Ltd., Charsadda 1999 SCMR 709 ref.
Muhammad Rafiq Shad. and Syed Mansoor Ali Shah for Appellants.
Rana Muhammad Arif, Addl. A.‑G. and Sh. Ziaullah for. Respondents.
Date of hearing: 25th May, 1999
2000 M L D 828
Before Syed Najam-ul-Hassan Kazmi, J
Mst. AZRA BIBI---Petitioner
versus
MUHAMMAD ASLAM and others ---Respondents
Writ Petitions Nos.441 and 442 of 1999, decided on 21st, West Pakistan Family Courts Act (XXXV of 1964)---
----S.5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for jactitation---Proof of marriage---Plaintiff/lady had asserted that she had married in accordance with tenets of Islam and marriage was duly registered---Lady alleged that defendant by involving her husband in a false criminal case, got her and her husband arrested and that in the custody of police, defendant obtained her thumb-impression on some papers which were subsequently claimed by him to be a Nikahnama and on basis thereof defendant started claiming marriage with her, but she was never married to the defendant---Marriage of plaintiff with her husband was admitted while marriage claimed by defendant was disputed one and no evidence worthy of consideration was available to assume marriage between plaintiff and defendant---Evidence on record had also provided that plaintiff was living with her husband since her marriage with him---Evidence produced by defendant to prove his marriage with plaintiff was contradictory as he and his witnesses had given different dates of alleged marriage---Witnesses examined by defendant not only suffered from contradictions, but also had created serious doubt as to alleged Nikah of defendant with plaintiff---Courts below without examining evidence in proper perspective declined relief to plaintiff/petitioner, ignoring that she was living with her husband with whom she was validly married---Findings recorded by Courts below suffering from glaring misreading, non-reading and misinterpretation of evidence and perversity of reasoning, concurrent judgments of Courts below were declared to be illegal and without jurisdiction by High Court in exercise of its Constitutional jurisdiction and set aside the same---Suit for jactitation of marriage filed by plaintiff female, was decreed dismissing suit for restitution of conjugal rights, filed by defendant/respondent against plaintiff/petitioner.
Fatawa-i-Kazee Khan relating to Mahomedan Law, Vol.I, Sec. I, Chap. IV ref.
Syed Asif Raza Gillani for Petitioner.
Malik Muzaffar Qadir Thaheem for Respondent No. 1.
Date of hearing: 21st September, 1999.
2000 M L D 837
[Lahore]
Before Ihsan‑ul‑Haq Chaudhry, J
Haji MUHAMMAD JALAL‑‑‑Petitioner
versus
IJAZ AHMAD BAJWA, ASSISTANT DIRECTOR FEDERAL INVESTIGATION AGENCY, STATE BANK CIRCLE, LAHORE and 3 others‑‑‑‑Respondents
Writ Petition No.23046 of 1999, heard on 21st December, 1999.
Customs Act (IV of 1969)‑‑‑
‑‑‑‑Ss.162 & 163‑‑‑Federal Investigation Agency Act, 1974 (VIII of 1975), S.5‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Raid, search and seizure without search warrant‑‑‑Constitutional jurisdiction, exercise of‑‑‑Authorities raided godown of petitioner and searched and seized articles lying therein without warrant and without recording report‑‑‑Authorities under S.5(1) of Federal Investigation Agency Act, 1974 had some powers to search of person and seizure of property, and also privileges and liabilities as the Officers of a Provincial Police had in relation to investigation of offences under Criminal Procedure Code or any other law for the time being in force‑‑‑Authorities, however, had no powers to search and seize articles in customs cases without complying with provisions of Ss. 162 & 163 ‑of Customs Act, 1969‑‑‑Raid, search, seizure and all actions thereunder taken by Authorities, were declared to be illegal by High Court in exercise of Constitutional‑ jurisdiction.
S.M. Yousuf v. Collector of Customs PLD 1968 Kar. 599; S.M. Yousuf v. The Collector of Customs, Karachi 1972 SCMR 87; Shaukat Hussain v. Zulfiqar Ahmad PLD 1981 Lah. 13; Iqbal Akhtar v. Ch. Muhammad Mushtaq PLD 1977 Lah. 1‑318; Muhammad Mahfooz v. Collector of Customs (Preventive), Customs House, Karachi PLD 1986 Kar. 28; Collector of Customs (Preventive) v. Muhammad Mahfooz PLD 1991 SC 630; Majid Bukhari v. The State PLD 2000 Lah 108; Criminal Appeal Gul Muhammad v. The Assistant Collector, Central Excise and Land Customs PLD 1982 Pesh, 30 and Brig. (Retd.) Imtiaz AhmadGovernment of Pakistan 1994 SCMR 2142 ref.
S.M. Zafar and Mian Abdul Ghaffar for Petitioner.
Kh. Saeed‑uz‑Zafar, D.A.‑G. and A. Karim Malik for Respondents.
Dates of hearing: 20th and 21st December, 1999.
2000 M L D 851
[Lahore]
Before Tassaduq Hussain Jilani, J
M.D. TAHIR, ADVOCATE‑‑‑Petitioner
versus
WAPDA through Chairman, WAPDA and 5 others‑‑‑Respondents
Writ Petition No. 16888 of 1998, decided on 6th December, 1999.
Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Protection of environment‑‑Contention by the petitioner was that‑protection of environment be made by plantation and a ban on the use of air‑conditioners, refrigerators and deep-freezers be imposed‑‑‑Validity‑‑‑Federal Government was concerned about the issues and was making efforts within the available means to‑ protect the environment and the Ozone layer‑‑‑Oxygen was not depleted by. Air-conditioners, refrigerators and deep‑freezers, and the beneficial effect of such modern gadgets were much more than their adverse effects, if any‑‑‑Use of such gadgets prima facie did not infringe any fundamental right of the petitioner to warrant interference under Art. 199 of the Constitution‑‑‑Petition being without merit was dismissed in limine.
Petitioner in person.
2000 M L D 859
[Lahore]
Before Khalil‑ur‑Rehman Ramday and M. Naeemullah Khan Sherwani, JJ
MUHAMMAD ARSHAD‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Criminal Appeal No.70,Murder Reference No.24 and Criminal Revision No. 418 of 1994, heard on 18th May, 1999.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Complainant though was brother of deceased, but he was a natural witness of occurrence which had taken place immediately outside his house and he had no reason or motive to falsely substitute accused for the actual offender‑‑‑Appearance of complainant at place of occurrence at relevant time had even been admitted by accused himself‑‑‑Defence plea of accused that deceased had been done to death in defence of accused's own life, did not appear to be reasonable or plausible‑‑‑ Prosecution story had been supported by complainant who was a natural and independent witness of occurrence and no exception could be taken to testimony offered by him‑‑‑Prosecution having proved case against accused beyond any doubt, accused was rightly convicted and sentenced, for causing Qatl‑e‑Amd of deceased.
Sultan Ahmed Khawaja for Appellant.
S.D. Qureshi for the State.
Shah Ahmed Khan Baloch for the Complainant.
Date of hearing: 18th May, 1999.
2000 M L D 869
[Lahore]
Before Amir Alain Khan, J
Rao MUHAMMAD SADIQ ‑‑‑ Petitioner
versus
GHULAM SARWAR and another‑‑‑Respondents
Writ Petition No.22225 of 1998, decided on 19th November, 1999.
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑
‑‑‑‑S.13‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutionalpetition, maintainability of‑‑‑Objection to jurisdiction‑‑‑Interlocutory/fragmentary order passed during the course of proceedings under West Pakistan Urban Rent Restriction Ordinance, 1959‑‑‑Effect‑‑‑Where objection was taken to the very proceedings being taken by the Rent Controller which was not only foundational but also jurisdictional, such objection should be decided by Rent Controller in the first instance so as to assume jurisdiction in the matter‑‑‑Interlocutory/fragmentary order, thus, was amenable to the Constitutional jurisdiction of High Court.
Sh. Muhammad Siddique v. Khurram Gulrez and 2 others 1998 MLD 624 and Muhammad Saleem v. Altaf Hussain 1998 CLC 1883 rel.
(b) Words and phrases‑‑‑
‑‑‑‑"Factory"‑‑‑Meaning.
Concise Oxford Dictionary ref.
(c) Words and phrases‑‑‑
‑‑‑‑"Industry"‑‑‑Meaning.
Concise Oxford Dictionary ref.
(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑
‑‑‑‑Ss.2(d), 2(e) & 13‑‑‑Building or land‑‑‑Definition‑‑‑Petrol pump‑‑Whether petrol pump was included in the definition of building or land for the purpose of applicability of West Pakistan Urban Rent Restriction Ordinance, 1959‑‑‑Contention by tenant was that petrol pump could be termed as "factory" or "industrial concern"‑‑‑Validity‑‑‑Only a building or buildings alongwith manufacturing equipment could be so termed and no other‑‑‑No manufacturing process being involved or carried out at the site where a petrol pump was installed, petrol pump was not a factory‑‑‑Petrol pump was at the most a commercial establishment, therefore, fell within the definition of non‑residential building or rented land but definitely not a "factory"‑‑‑Rent Controller had rightly dismissed the application of the tenant seeking dismissal of ejectment petition on such ground‑‑‑Order of Rent Controller did not suffer from any jurisdictional defect nor any error of law was committed.
Mian Nisar Ahmed for Petitioner.
Muhammad Nawaz for Respondent No. 1.
Date of hearing: 16th November, 1999.
2000 M L D 891
[Lahore]
Before Syed Najam‑ul‑Hassan Kazmi, J
SHAGUFTA ANWAR ‑‑‑Petitioner
versus
Mian ZULFIQAR and others‑‑‑Respondents
Writ Petition No.5662 of 1998, heard on 3rd May, 1999.
West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑
‑‑‑‑S.13(3)(i)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Bona fide personal need of landlord‑‑‑Landlord by producing sufficient evidence on record had proved that he required premises in question in good faith to accommodate his sons who were to be married‑‑‑Landlord was thoroughly cross‑examined, but nothing could be extracted which could be said to be adverse to plea of his personal bona fide need‑‑‑Findings recorded by Appellate Authority below on question of personal bona fide need of landlord, not suffering from any misreading of evidence on record or any error of law, could not be interfered with by High Court in exercise of its Constitutional Jurisdiction.
N.A. Butt for Petitioner.
Rana Muhammad Sarwar for Respondents., Date of hearing; 3rd May, 1999.
2000 M L D 893
[Lahore]
Before Faqir Muhammd Khokhar, J
MUHAMMAD AALAM‑‑‑Petitioner
versus
MEMBER, BOARD OF REVENUE CONSOLIDATION), PUNJAB, LAHORE
and others‑‑‑Respondents
Writ Petition No. 113 of 1984/BWP, decided on 22nd September, 1997.
West Pakistan Consolidation of Holdings Ordinance (VI of 1960)‑‑‑‑
‑‑‑‑S. 13‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Question of reduction or increase of plot during process of consolidation, was essentially a matter falling within domain of Consolidation Authorities‑‑‑Constitutional jurisdiction, in circumstances, would not be attracted in such matters unless some glaring injustice or error of law affecting jurisdiction of Consolidation Authorities was pointed out‑‑In absence of such conditions, Constitutional jurisdiction could not be exercised.
Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139 ref.
M.M.A. Pirzada for Petitioner.
Shabbir Ahmad Afghani, Asstt.. A.‑G. and Ch. M. Ashraf Mohandra for Respondents.
Date of hearing: 22nd September, 1997.
2000 M L D 899
[Lahore]
Before Sheikh Abdur Razzaq, J.
MUHAMMAD ARSHAD‑‑‑Petitioner
versus
CHAIRMAN, ZILA COUNCIL, SAHIWAL‑‑‑Respondent
Writ Petition No.3946 of 1999, decided on 6th May, 1999.
Punjab Local Government Ordinance (VI of 1979)‑‑‑
‑‑‑‑S.166‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Order regarding distribution of staff, having been passed by Chairman, Zila Council, appeal against said order lay with Commissioner of the Division‑‑‑Efficacious remedy in form of appeal to Commissioner being available; Constitutional petition against order of Chairman was not maintainable.
Rana Taj Muhammad Khan for Petitioner.
2000 M L D 905
[Lahore]
Before Riaz Kayani, J
MUQARAB KHAN and 4 others‑‑‑Petitioners
versus
MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and others‑‑‑Respondents.
Writ Petition No.3611 of 1995, decided on 9th March, 1999.
Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑
‑‑‑‑Ss.10 & 30‑‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Proprietary rights in respect of land in possession under Fifteen Years Lease Scheme‑‑‑Entitlement‑‑‑Petitioners who were in possession of land by virtue of Fifteen Years' Lease Scheme and had been continuously cultivating said land, were held eligible to grant of proprietary rights of the land under notification‑‑‑Grant of proprietary rights were postponed by Authority on one pretext or the other till the land came within Municipal limits and petitioners became ineligible for the grant‑‑‑Municipal limits were reduced and petitioners again became eligible for grant of proprietary rights but despite said entitlement, petitioners were denied proprietary rights on ground that subsequent relaxation was not retrospective in operation‑‑‑If petitioners were otherwise eligible for grant of proprietary rights question‑of retrospectivity would not arise in their case, and they could not be denied proprietary rights on ground of retrospectivity.
Khan Zahid Hussain Khan for Petitioners.
Ch. Muhammad Bashir, A.A. ‑G for the State.
2000 M L D 906
[Lahore]
Before Mrs. Fakhar‑un‑Nisa Khokhar, J
ABDUL REHMAN and 3 others‑‑‑Petitioners
versus
MUNICIPAL COMMITTEE, SHUJABAD through its CHAIRMAN and.3 others‑‑‑Respondents
Writ Petition No.7433 of 1999, decided on 31st August, 1999.
Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Arts. 22, 24 & 199‑‑‑Constitutional petition‑‑‑Fundamental Rights, violation of‑‑‑Municipal Committee, through its resolution, had suggested to demolish buildings of schools constructed upon Waqf property to construct shopping plaza there on such schools, which were being run for the last more than fifty years‑‑‑Validity‑‑‑Resolution of Committee, was not only in violation of fundamental rights as guaranteed by Constitution of Pakistan (1973), but also against public interest‑‑‑Right to get education and enlightenment through education and knowledge, was Fundamental Right of every citizen‑‑‑When land was earmarked or was being used by a welfare, institution, whether it was a school or hospital, such building/land could not be converted or allotted in any other scheme‑‑‑High Court, in exercise of its Constitutional jurisdiction, set aside resolution being contrary, to Fundamental Rights of citizens and contrary to law relating to conversion of land which was being run over by a welfare institution like schools to any other scheme.
Sh. Faheem Ahmad and Mujeeb‑ur‑Rehman Hashmi for Petitioners. Khadim Nadeem Malik, Addl. A.‑G., Punjab for Respondents. Mirza Aziz Akbar Baig for the Municipal Committee. , Date of hearing: 31st August, 1999.
2000 M L D 910
[Lahore]
Before Maulvi Anwarul Haq, J
ASGHAR ALI alias NANNHA‑‑‑Petitioner
versus
STATE‑‑‑Respondent
Criminal Miscellaneous No. 1603‑B of 1999, decided on 26th August, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.337‑F(i) & 377‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12‑‑‑Bail, grant of‑‑Delay of five days in lodging of F.I.R. was not explained ‑‑‑ Accused was found innocent during successive investigations by Investigating Agency‑‑Medical Report upon examination of alleged victim was also negative‑‑‑Case against accused being that of further inquiry, bail was granted.
Arshad Ali Chohan for Petitioner.
Jamil Ahmad Chohan for the State.
Date of hearing: 26th August, 1999.
2000 M L D 911
[Lahore]
Before Muhammad Naseem Chaudhri, J
MUHAMMAD ASLAM‑‑‑Petitioner
versus
STATE‑‑‑Respondent
Criminal Miscellaneous No.5359‑B of 1999, heard on 1st November; 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), 5:302/304/148/149‑‑‑Bail, grant of‑‑‑Supplementary statement of complainant with regard to motive which was not part of F.I.R., was of no legal value because no specific evidence had been collected in that regard‑‑‑Weapon of offence said to have been got recovered at the instance of accused, was not stained with blood‑‑‑Part of body of injured and deceased where injury was allegedly inflicted by accused was riot specified‑‑‑Case was that of roping in whole of the family of accused and such facts, could also be considered while exercising discretion and jurisdiction, vested in Court, in favour of accused‑‑‑Case against accused being of further inquiry, he was admitted to bail, in circumstances.
Mansoor Alamgir Qazi for Petitioner.
Abdul Qayyum Anjum for the State.
Waqar Hassan Mir for the Complainant.
Date of hearing: 1st November, 1999.
2000 M L D 914
[Lahore]
Before Ch. Ijaz Ahmad, J
SEDCO FOREX INTERNATIONAL‑‑‑Petitioner
versus
MUHAMMAD NAWAZ and others‑‑‑Respondents
Civil Revisions Nos. 173 to 180 of 1999, heard on 26th July, 1999.
(a) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S. 115‑‑‑Scope‑‑‑Interlocutory order ‑‑‑Revision‑‑‑Maintainability‑‑Expression "case decided" in S.115, C.P.C. would not necessarily mean decision on entire suit, but it would relate to decision of interlocutory matter requiring a judicial mind‑‑‑Objection that revision petition was not maintainable as order impugned therein was. interlocutory was repelled.
Hayat and others v. Amir PLD 1982 SC 345; Hakim Boota and another v. Habib Ahmed and others PLD 1985 SC 153; N.A. Sheryar v. Conforce Limitation NLR 1981 Lah. 56; PLD 1992 SC (AJ&K) 6; PLD 1975 Lah. 425; Messrs National Security Insurance Company Ltd.'s case 1999 SCMR 718; Bashir Ahmed's case PLD 1973 SC 507 and Muhammad Nasir's case 1986 CLC 2350 ref.
(b) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.1, R.10(5)‑‑‑Limitation Act (IX of 1908), S.22‑‑‑Addition of party ‑‑‑‑‑Procedure against newly‑added party‑‑‑Limitation‑‑‑Proceedings against newly‑added party would be deemed to commence on service of summons on him as envisaged by 0.1, R. 10(5), C.P.C. or when he was so made a party as envisaged by S.22 of Limitation Act, 1908.
Hayat's case PLD 1982 SC 167 ref.
(c) Administration of justice‑‑‑
‑‑‑‑ Cases must be decided on merits instead of technicalities.
Mst. Sardar Begum's case 1993 SCMR 363; PLD 1989 SC 532; Muhammad Ismails case 1980 SCMR 254 and PLD 1989 SC 532 ref.
(d) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S.115‑‑‑Revision petition‑‑‑Filing of‑‑‑Petitioner did not file all documents even amended plaint was not filed with revision, petition without which it was difficult to come to just decision and to determine, liability and obligation of petitioner qua respondents No body should be entitled to get benefit of his own negligence‑‑‑Petitioner was duty bound to file all documents with revision petition by virtue of S.115(2), C.P.C.‑‑‑High Court in the interest of parties to avoid multiplicity of litigation, remanded case to decide same within specified period.
Saleem Zulfiqar Khan for Petitioner.
Khuram Khan Panni for Respondents.
Date of hearing: 26th July, 1999.
2000 M L D 936
[Lahore]
Before Rashid Aziz Khan, C.J. and Tassaduq Hussain Jilani, J
ABDUL GHAFFAR‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Criminal Appeal No.850 and Murder Reference No.236 of 1990, heard on 26th January, 1997.
(a) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑All eye‑witnesses who were father and real brothers of deceased were declared hostile and they were not confronted with their previous statements recorded under 5.161, Cr.P.C.‑‑‑Statement of only eye‑witness, who was female and who was not declared hostile would not alone be regarded safe to sustain conviction on a murder charge, firstly because she had introduced a new story negating the prosecution story as given in F. I. R. and secondly her statement was not corroborated by any other material circumstance i.e. recovery of weapon of offence‑‑‑Recovery itself had become doubtful as according to eye‑witnesses including witness who was not declared hostile, accused was apprehended at the spot whereas as per Investigating Officer, he was arrested a few days after occurrence and that he led to the recovery of blood‑stained Churri‑‑‑Statement of only eye‑witness who was not declared hostile having remained uncorroborated by any independent circumstance, it would be unsafe to extend implicit credit to such sole testimony of the witness and to uphold conviction of a capital charge‑‑‑Accused was acquitted extending him benefit of doubt in circumstances.
Manzoor v. The State PLD 1983 SC 197 ref.
(b) Criminal trial‑‑
‑‑‑‑ Testimony of hostile witness‑‑‑Value‑‑‑Principles‑‑‑Statement of hostile witness could not be discarded entirely‑‑‑Statement of such a witness had to be examined in totality i.e. alongwith other material on record‑‑‑Evidence of such witness was to be considered with utmost caution and could not be extended credit unless same was corroborated by some other evidence.
Islam v. The State PLD 1962 (W.P.) Lah. 1053 and Kaloo and 2 others v. The State 1973 PCr.LJ 334 ref.
Amjad Pervez Malik for Appellant.
Miss. Yasmin Sehgal, A.A.‑G. with Syed Ali Raza for the State.
Date of hearing: 26th November, 1997.
2000 M L D 976
[Lahore]
Before Khawaja Muhammad Sharif, J
Haji BAHADAR KHAN and others‑‑‑Appellants
versus
THE STATE‑‑‑Respondent
Criminal Appeals Nos.766, 808, 982 and Criminal Revision No:472 of 1999, heard on 9th March, 2000.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Eye‑witnesses produced by prosecution not only were closely related to each other, but also related to the deceased‑‑‑No inmate of the house where occurrence had taken place was either cited as a prosecution witness or was produced as such‑‑‑Eye‑witnesses were also not residents of place of occurrence and motive of occurrence as alleged by prosecution was improbable and unbelievable‑‑‑Previous background of enmity existed between the parties‑‑‑No recovery was effected from the accused‑‑‑Glaring conflict was found between ocular account and medical evidence and no injury was attributed to the accused‑‑‑Prosecution having failed to prove case against accused, conviction and sentence awarded to accused by Trial Court, were set aside.
Rab Nawaz Niazi and Masood Mirza for Appellants
S.D. Qureshi for the State.
Amir Abdullah Niazi for the Complainant.
Date of hearing: 9th March, 2000.
2000 M L D 983
[Lahore]
Before Asif Saeed Khan Khosa, J
WASIF ALI AZIZ alias NANHA and anothers‑‑‑Petitioners
versus
S.H.O., POLICE STATION CHAK BAIDI and another‑‑‑Respondents
Writ Petition No. 1721 and Civil Miscellaneous No. l of 1999, decided on 3rd March, 1999. ‑
Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑
‑‑‑‑S. 16/10‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Accused had sought cancellation of the F.I.R. on the basis of their being husband and wife and the same being mala fide‑‑‑Case was still at the investigation stage and High Court could not undertake a factual inquiry into the allegations levelled against the accused by the prosecution ‑‑‑Accused were directed to join police investigation‑‑Investigating Officer was also directed to record the version of the accused, receive their evidence, get their statements recorded under 5.164, Cr.P.C. and to .investigate the matter justly, fairly and strictly in accordance with law‑‑‑Superintendent of Police was further directed to ensure that the investigation in the case was carried out free from all extraneous influences according to the dictates of justice‑‑‑Constitutional petition was disposed of with the said directions.
Malik Muhammad Shabbir Langrial, Advocate.
2000 M L D 987
[Lahore]
Before Khawaja Muhammad Sharif, J
GHULAM CHANNA‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Criminal Appeal No. 103/J of 1999, heard 18th February, 2000.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Conflict was found between ocular account of complainant who was an eye‑witness and medical evidence with ..regard to injuries on person of deceased had made presence of complainant at the spot doubtful‑‑‑Pistol allegedly recovered on pointation of accused was sent to Fire‑arm Expert after about more than one month from recovery‑‑Sending of empties allegedly recovered from the spot to Fire‑Arm Expert and report of Fire‑arm Expert had shown that empties recovered from the spot did not match with pistol recovered on pointation of accused‑‑‑False involvement of accused in the offence could not be ruled out, in circumstances‑‑‑Benefit of doubt arising in prosecution, thus, would go to accused‑‑‑Conviction and sentence awarded to accused by Trial Court were set aside.
Abdul Rashid Munir for Appellant.
Ch. Imtiaz Ahmed for the State.
Date of hearing: 18th February, 2000.
2000 M L D 991
[Lahore]
Before Riaz Kayani and Khawaja Muhammad Sharif, JJ
IFTIKHAR and another‑‑‑Appellants
versus
THE STATE‑‑‑Respondent
Criminal Appeals Nos. 453, 451 and Murder Reference No. 183‑T of 1999, heard on 29th February, 2000.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302/393/34‑‑‑Appreciation of evidence‑‑‑Nobody was named in the F.I‑R. and only description of accused was given but no identification parade was held although, accused were not known to the complainant prior to occurrence‑‑‑Statement of doctor showed that duration between injury and death of deceased was from half an hour to one hour, but according to eyewitnesses and F.I.R. deceased died at the spot immediately‑‑‑Both eyewitnesses were closely related to deceased and no independent witness from locality had been produced by the prosecution‑‑‑No empty was recovered from the spot and dagger allegedly recovered from one of the accused was not stained 'with human blood ‑‑‑F.I.R.. was recorded later on after due deliberation and consultation at the police station‑‑Glaring conflict was found between medical and ocular account‑‑‑Prosecution having failed to prove case against accused, conviction and sentence awarded to accused by Trial Court, were set aside.
Pervaiz Inayat Malik for Appellants.
S.D. Qureshi for the State.
Date of hearing: 29th February, 2000.
2000 M L D 999
[Lahore]
Before Syed Jamshed Ali, J
KALSOOM BIBI and another‑‑‑Petitioners
versus
DEPUTY INSPECTOR‑GENERAL OF POLICE, D.G. KHAN and 5 others‑‑‑Respondents
Writ Petition No. 2068 of 1999, decided on 12th March, 1999.
Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑
‑‑‑‑S. 16‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Harassment by police‑‑‑Petitioners who claimed themselves to be legally wedded husband and wife had sought a direction to the police not to harass them and compel them to dissolve their marriage‑‑‑Case under S.16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, having been duly registered against the petitioners (accused), the relief sought for could not be granted to them‑‑‑Constitutional petition was dismissed accordingly.
Malik Muhammad Ali for Petitioners.
Malik Muhammad Shabbir Langrial, Advocate.
2000 M L D 1003
[Lahore]
Before Mian Muhammad Najam‑uz‑Zaman, J
BAHAWAL BAKHSH‑‑‑Petitioner
versus
THE STATE‑-‑Respondent
Criminal Miscellaneous No. 1072‑B of 1999, decided on 30th June, 1999
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), 5.354/452‑‑‑Bail, grant of‑‑‑Offence under S.354, P.P.C. being bailable, accused was entitled to bail thereunder as of right‑‑‑Section 452, P.P.C. apparently did not appear to have been attracted in the case, which even otherwise being punishable with seven years' R.I. did not fall within the prohibitory clause of S.497(l), Cr.P.C. and bail could be granted to accused thereunder as a rule‑‑‑Accused was admitted to bail accordingly.
Tariq Bashir and 5 others v. The State P L D 1995 SC 34 rel.
Malik Muhammad Shabbir Langrial for Petitioner. Mujeeb‑ur‑Rehman for the State.
2000 M L D 1008
[Lahore]
Before Khawaja Muhammad Sharif, J
MUHAMMAD ANWAR and another‑‑‑Petitioners
versus
THE STATE‑‑‑Respondent
Writ Petition No. 1411 of 2000, heard on 8th March, 2000.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.561‑A‑‑‑Penal Code (XLV of 1860), S.406/420/468/472‑‑‑Quashing of F.I.R.‑‑‑Delay of two years and four months in lodging F.I.R. was not satisfactorily explained‑‑‑Evidence on record had proved that case against accused was registered with mala fide intention under instructions of a Senior Police Officer who was friend of complainant ‑‑‑F.I.R. registered against accused was quashed, in circumstances.
Nazir Ahmed Ghazi for Petitioners.
Muhammad Hanif Khatana, A.A.‑G. for the State.
Shah Ahmed Baloch for the Complainant.
Date of hearing: 8th March, 2000.
2000 M L D 1013
[Lahore]
Before Riaz Kayani and Khawaja Muhammad Sharif, JJ
MUHAMMAD NAEEM and another‑‑‑Appellants
versus
THE STATE‑‑‑Respondent
Criminal Appeal No.574 and Murder Reference No. 190‑T of 1999, heard on 22nd February, 2000.
Penal Code (XLV of 1860)‑‑
‑‑‑‑S.302/324/34‑‑‑Appreciation of evidence‑‑‑Prosecution had not approached Court with clean hands having suppressed injuries of both accused and two others from accused's side‑‑‑Statements of two doctors had shown that four persons including both accused also had received injuries which had been suppressed by prosecution during course of investigation and also before Trial Court‑‑‑Gun allegedly recovered from accused was the licensed one and motive of occurrence was concocted‑‑‑Accused had not exceeded their rights of self‑defence-‑‑Law had given rights to a person to defend himself, if he would apprehend grievous injury on his person‑‑Investigation in case was dishonest because Investigating Officer, in spite of injuries on the side of accused, did not register any case and accused had to file a complaint‑‑‑All witnesses produced by prosecution were closely related inter se‑‑‑Occurrence though had taken place in a busy place in the open bazar, but not "a single independent witness had been produced by prosecution to prove its case‑‑‑ Version with regard to occurrence put forward by accused was more plausible, convincing and natural as compared to version of prosecution‑‑‑Case against accused having not been proved beyond any doubt, conviction and sentence awarded to accused by Trial Court, were set aside.
Muhammad Asif Ranjha for Appellants.
Ejaz Ahmad Bajwa for the State.
Date of hearing: 22nd February, 2000.
2000 M L D 1036
[Lahore]
Before Tassaduq Hussain Jillani and
Zafar Pasha Chaudhry, JJ
RAB NAWAZ and another‑‑‑Appellants
versus
STATE and others‑‑‑Respondents
Criminal Appeal No.31 Criminal Revision No. 55 and Murder Reference No.55 of 1994, decided on 22nd April, 1999.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S.302/34‑‑‑Appreciation of evidence‑‑‑Statements of complainant and other eye‑witnesses recorded under S.161, Cr.P.C. during trial were consistent with version given in the F.I.R.‑‑‑Complainant and eye‑witnesses, though were closely related to deceased, but they were material witnesses‑‑Both the witnesses were subjected to lengthy cross‑examination with regard to various aspects of the occurrence, but their credibility could not be shaken‑‑‑Said corroborated evidence of eye‑witnesses could not be discarded simply because they were close relatives of deceased‑‑‑Occurrence was a broad daylight happening and promptitude with which F.I.R. was lodged wherein. all accused were specifically named., had ruled out possibility of mistaken identity‑‑‑Statements of both eye‑witnesses inspired confidence as they were consistent in all material particulars and their testimony was corroborated by medical evidence so far as role attributed to accused persons was concerned‑‑‑Prosecution having succeeded in proving its case against accused beyond any reasonable doubt, death sentence awarded to accused was confirmed.
Nazir and others v. The State PLD 1962 SC 269 and Sharif and another v. The State 1973 SCMR 83 ref.
Syed Ehsan Qadir Shah and Mian Abdus Sattar Najam for Appellants.
Malik Abdus Salam and Ch. Muhammad Iqbal for Respondents.
Dates of hearing: 21st and 22nd April, 1999.
2000 M L D 1055
[Lahore]
Before Tassaduq Hussain Jilani, J
STATE‑‑‑Petitioner
versus
LAHORE DEVELOPMENT AUTHORITY and others‑‑‑Respondents
Writ Petition No.5581 of 1998, heard on 6th April, 1998.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S.321‑A‑‑‑Constitution of Pakistan (1973), Art.l99‑-‑Suo mote cognizance of offence‑‑‑Child having died on account of falling in uncovered manhole, High Court issued suo motu notice to the Authorities and on instruction of Court a criminal case was registered against said Authority‑‑Chief Minister of the Province had issued special‑ instructions to concerned Authorities to take effective precautionary measures to forestall such incidents‑‑‑Chief Minister had also decided that in future whenever such a death took ‑ place, District Magistrate would hold a summary enquiry to confirm that death had taken ‑place on account of lapse of Department and that Government would pay Rs.2,00,000 to bereaved family ‑‑‑Suo motu proceedings were disposed . of by High Court in terms of said direction.
Khawaja Muhammad Sharif, A.‑G. for the State.
Azmat Saeed for Respondents.
Date of hearing: 6th April, 1998.
2000 M L D 1058
[Lahore]
Before Asif Saeed Khan Khosa, J
GHULAM RASOOL alias NADEEM‑‑‑Petitioner
versus
TASLEEM BIBI and others‑‑‑Respondents
Criminal Miscellaneous No. 104‑CB of 1999, decided on 2nd June, 1999.
(a) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Second bail application‑‑Maintainability‑‑‑Bail application earlier filed by accused having been dismissed by Trial Court on merits, subsequent bail application on same ground was accepted by the same Trial Court‑‑‑Validity‑‑‑Not within jurisdiction of Trial Court to entertain and decide subsequent bail application on ground which had already been subject‑matter of consideration in earlier order of refusal of bail.
The State through Advocate‑General, N.‑W.F.P. v. Zubair and 4 others PLD 1986 SC 173 ref. .
(b) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.497(5i‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, cancellation of Cancellation of bail lay within discretion of Court‑‑‑Not necessary that in every case where illegal order was passed or order against law declared by Supreme Court was passed. bail must necessarily be cancelled‑‑‑Trial Court, in the case though had committed illegality in accepting second bail application on the same grounds after dismissal of previous one but bail granted could not be cancelled on the ground that accused was a female of about eleven years and was not attributed any injury to deceased and her role alleged in F.I.R. was merely secondary in nature ‑‑‑Challan of case had already been submitted before Trial Court and trial was about to commence and accused who was a minor girl had already spent five and a half months in jail before her admission to bail‑‑‑Discretion could not be exercised in favour of cancellation of bail in circumstances.
Akmal Masih and others v. Salamat Masih and 4 others 1988 SCMR 918 and Muhammad Ismail v., Muhammad Rafique and another PLD 1989 SC 585 ref.
Sardar Altaf Hussain Khan for Petitioner.
Arshad Ali Chouhan for Respondent No. 1.
Saleem Shakoor for the State.
Date of hearing: 2nd June, 1999.
2000 M L D 1063
[Lahore]
Before Karamat Nazir Bhandari, J
Haji MUHAMMAD MUSHTAQ‑‑‑Petitioner
versus
TOWN COMMITTEE, MANDI WARBURTON, TEHSIL NANKANA SAHIB, DISTRICT SHEIKHUPURA, and others‑‑‑Respondents
Civil Revision No. 1855 of 1997, decided on 21st April, 1999.
Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S. 11‑‑‑Res judicata, principles of‑‑‑Applicability‑‑‑Plaintiff had called in question validity of notice issued to him under S.81, West Pakistan Land Revenue Act, 1967‑‑‑Plaintiff earlier had filed three suits on identical and substantial facts which were finally dismissed up to appellate stage‑‑‑Basic dispute between parties in the present suit was liability of plaintiff to pay demanded amount and such question directly or indirectly was involved in earlier three suits, though some times prayer of plaintiff was couched in declaratory language and on other occasions suit was framed by plaintiff for rendition of accounts‑‑‑Earlier dismissal of suits of plaintiff wherein decrees had attained finality, would bar suit of plaintiff on principles of res judicata‑‑‑Judgment and decree passed by Appellate Court below not suffering from any irregularity or impropriety muchless illegality, could not be interfered with by High Court.
Sardar Muhammad and another v. Chairman, Town Committee, Sadiqabad and others PLD 1962 (W.P.) BJ 8; Haji S. Habibullah and another v. Municipal Committee, Quetta PLJ 1977 Quetta 631; Shaukat Ali v. Province of Punjab and 6 others 1997 CLC 529 and Inayatullah v. Khan Begum and others PLD 1958 (W.P.) Lah. 686 ref.
Sh. Hamid Mukhtar for Petitioner.
Tariq Shamim for Respondent No. l Nemo for Respondent No.2.
Date of hearing: 16th April, 1999.
2000 M L D 1078
[Lahore]
Before Falak Sher and Muhammad Asif Jan, JJ
NOOR AHMAD and another‑‑‑Appellants
versus
THE STATE‑‑‑Respondent
Criminal Appeal No.324 and Murder Reference No. 178 of 1992, decided on 8th October, 1997.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S.302/337‑A(ii)/337‑L(ii)/337‑F(ii)/148/149‑‑‑Appreciation of evidence‑Incident appeared to have sparked off at the spur of the moment without premeditation over a triviality as to turn of water right, claim whereof remained unsubstantiated and both sides asserting their respective claim, resorted to physical violence deploying ordinary weapons like sticks‑‑Independent of the nature of weapons, these were not stained with blood and mechanical fashion in which weapons were acclaimed to have been gathered in quick succession on two dates through two sets of witnesses, seemed to be too much of a coincidence‑‑‑Each one of participants had rendered himself responsible: for his own doing without sharing commonalty of intent on account of vicarious liability‑‑‑Sentence of all accused recorded under 5.148, P.P.C. was set aside and they were acquitted of said charge in circumstances‑‑‑Fatal injury on person of deceased attributed to co‑accused was doubtful in view of his advanced age and weapon of offence allegedly used by him in occurrence‑‑‑Conviction of other co‑accused found responsible for murder of deceased was maintained but death sentence awarded to him was not confirmed keeping in view circumstances in which occurrence had taken place and instead was altered to imprisonment for life.
Syed Ehtesham Qadir Shah, S. Khurram Latif Khosa and Lal Khan Baloch for Appellants.
Syed Ali Raza for the State.
Dates of hearing: 7th and 8th October, 1997.
2000 M L D 1086
[Lahore]
Before Asif Saeed Khan Khosa, J
MUSHTAQ AHMAD alias SHAKI and others‑‑‑Petitioners
versus
THE STATE‑‑‑Respondent
Criminal Miscellaneous No.527‑B of 1999; decided on 31st March, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10(3) & 11‑‑‑Bail, grant of ‑‑‑F.I.R. was lodged with delay of eight days‑‑‑Alleged abductee was not recovered from the custody of accused but she had been produced before police by complainant himself‑‑‑Accused had maintained that alleged abductee had contracted Nikah with accused even before alleged occurrence or lodging of F.I.R. and in proof of his contention he had relied upon registered Nikahanama‑‑‑F.I.R. itself prima facie had shown element of consent of alleged abductee and ingredients of forcible abduction were missing‑‑‑No statement of alleged abductee under S.164, Cr.P.C. was got recorded ‑‑‑Challan had already been submitted after finalization of investigation‑‑‑Accused had already spent about six months in jail and their custody was no longer required for the purpose of investigation‑‑‑Bail ought not to be withheld by way of premature punishment‑‑‑Case against accused being of further inquiry, they were admitted to bail.
Mian Fazal Rauf Joyia for Petitioner.
Abdul Razzaq Raja for the State.
2000 M L D 1088
[Lahore]
Before M. Javed Buttar, J
ARSHAD ALI ---Petitioner
versus
THE STATE---Respondent
Criminal Miscellaneous No.2236-B of 1999, decided on 11th May, 1999.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), S.380/457/511---Bail, grant of--Investigation against accused was complete and challan had been submitted in the Court---Recovery of knife with which accused was allegedly caught red-handed had not been effected ---Accused was not arrested on the very day of the alleged occurrence, but was arrested the next day---Case against accused requiring further inquiry, he was granted bail.
Abdul Wahid Chaudhry for Petitioner.
Aminullah Malik for the State.
2000 M L D 1089
[Lahore]
Before Tassaduq Hussain Jilani, J
MUHAMMAD SALEEM and others--=Appellants
versus
MUHAMMAD ARIF KHAN and others---Respondents
Special Appeal from Order No.40 of 1994, decided on 1 lth March, 1998.
(a)' West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---
----Ss. 13(6) & 15(5)---Non-compliance of tentative rent order---Striking off defence---Tenant having failed to deposit rent in terms of tentative rent order passed by Rent Controller, defence of tenant was rightly struck off by Rent Controller.
Abdul Ghafoor v. Ahmed Kunhi PLD, 1969 SC 424; S.Pin Liu v. Mrs. Najma Kazmi PLD 1978 SC 275 and Muhammad Ishaq v. Abdul Haq and another NLR 1979 Civil 239 ref.
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---
----S.2(c)(i)---Relationship of landlord and tenant---Denial---Effect---Where conduct of tenant in denying relationship of landlord and tenant had been contumacious, Rent Controller could straightaway order ejectment of tenant if relationship of land and tenant stood established.
Amanullah Khan (A. Khan) v. Choteyy Khan 1978 SCMR 14 ref.
(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---
----S. 15(5)(8)---Appellate jurisdiction, exercise of---Order of ejectment concurrently passed by Rent Controller and Appellate Authority below, neither being against evidence on record nor established law, would not call for interference in appeal by High Court. Abdul Qadir Hashmi for Appellants. Nazir Ahmad Siddiqui for Respondents.
Date of hearing: 11th March, 1998.
2000 M L D 1097
[Lahore]
Before Tassaduq Hussain Jilani, J
MANZOOR‑AHMAD‑‑‑Petitioner
versus
ZAFAR IQBAL and others‑‑‑‑Respondents
Writ Petition No.291 of 1992, heard on 9th March, 1998.
(a) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑
‑‑‑‑S.10‑‑‑Horse Breeding Tenancy Scheme‑‑‑Nature and mode of allotment‑‑‑Horse breeding tenancy was not heritable tenancy in stricto senso‑‑‑Heirs of original breeder would not become entitled to allotment of the tenancy merely because of his claim of inheritance, but a good record of upkeep of horse/ mule breeding was a condition precedent for the allotment.
Muhammad Asghar v. Mst. Safia Begum and another PLD 1976 SC 435 ref.
(b) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑
‑‑‑‑S. 10‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Horse Breeding Tenancy Scheme‑‑‑Allotment‑‑‑Selection of tenants under Horse Breeding Tenancy Scheme was a discretion of Provincial Government and High Court in exercise of its Constitutional jurisdiction, could not substitute its finding with finding of, Tribunal of a competent jurisdiction unless same was shown that order was coram non judice or had been passed in derogation to the law and relevant rules.
M.R. Khalid Malik for Petitioner.
Tariq Zulfiqar Ahmad Ch. and Rana Taj Mehmood Khan for Respondents.
Date of hearing: 9th March, 1998.
2000 M L D 1101
[Lahore]
Before Sheikh Abdur Razzaq, J.
MAULA DAD‑‑‑Petitioner
versus
.FAZAL DAD‑‑:Respondent
Civil Revision No.40 of 1992, heard on 28th June, 1999.
Transfer of Property Act (IV of 1882)‑‑‑
‑‑‑‑Ss. 122 & 123‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Suit for declaration‑‑‑Mutation of gift‑‑‑Validity‑‑‑Plaintiff had alleged that alienation of suit land vide mutation of gift in favour of defendant was invalid and illegal as the mutation was sanctioned in favour of defendant through fraud and misrepresentation with collusion of Revenue Authorities‑‑‑Evidence on record had proved that plaintiff and defendant, though were brothers, but their relationship had become strained prior to entering of mutation‑‑Possession of property in dispute had not been delivered to defendant and same was, still in possession of plaintiff‑‑‑Plaintiff/alleged donor could not possibly alienate land in favour of his brother by way of gift when their relations were strained‑‑‑Concurrent judgments and decrees of Courts below not suffering from any misreading or non‑reading of evidence were not interfered with by High Court.
Alif Khan v. Mst. Mumtaz Begum and another 1998 SCMR 2124 and Muhammad Sadiq v. Sardar and others 1995 SCMR 710 ref.
Sardar Azmatullah Khan for Petitioner.
M.M. Azeem for Respondent.
Date of hearing: 28th June, 1999.
2000 M L D 1111
[Lahore]
Before Mian Saqib Nisar, J
MAHER HUSSAIN ‑‑‑Petitioner
versus
THE STATE and 3 others‑‑‑Respondents
Writ Petition No.2827 of 1999/BWP, decided on 23rd June, 1999.
West Pakistan Land Revenue Act (XV11 of 1967)‑‑‑
‑‑‑‑S. 82(3) & (5)‑‑‑Criminal Procedure Code (V of 1898), S.491‑‑Constitution of Pakistan (1973), Art.199‑‑‑Recovery of detenu‑‑‑Report of Bailiff appointed to recover detenu showed that detenu had been confined in civil prison cell by virtue of an order passed by Assistant Collector for nonpayment of certain dues of Agriculture Bank ‑‑‑Validity‑‑‑Detenu, if was defaulter could only be contended to jail by orders of Collector as provided under S.82(5) of West Pakistan Land Revenue Act, 1967‑‑‑Confinement of detenu under Orders of Assistant Collector who had no jurisdiction to pass such order, was illegal, improper and unlawful in the eyes of law ‑‑‑Detenu was ordered to be set at liberty in circumstances.
P.A. Farooqi for Petitioner. Muhammad Akhtar Qureshi for Respondents Nos.3 and 4.
2000 M L D 1117
[Lahore]
Before Muhammad Akhtar Shabbir, J
Syed MAZHAR HAIDER and another‑‑‑Petitioners
versus
ALI AHMAD through Legal Heirs‑‑‑Respondent
Civil Revision No.978 of 1999, decided on 28th June, 1999.
(a) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S. 42‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts.17, 79, 95 & 118‑‑‑Suit for declaration‑‑‑Power of attorney‑‑‑Proof of execution‑‑‑Plaintiff had challenged execution of general power of attorney in favour of defendant on basis of which property of plaintiff was got mutated in favour of defendant‑‑Plaintiff had alleged that impugned general power of attorney and mutation being result of fraud and misrepresentation, were illegal and ineffective on the right of plaintiff‑‑‑Disputed power of attorney, though was registered one, but neither Sub‑Registrar, who had registered same was produced to prove endorsement by him on the document nor person who had identified executant of said document, was produced in evidence‑‑‑Validity‑‑‑When a document, the execution of which was denied by executant and same was doubtful, burden to prove could shift on person who had got benefit out of the said document‑Defendants who were beneficiaries of power of attorney had failed to prove signature of‑executant thereof by calling person in whose presence same was executed‑‑‑Said power of attorney which was not proved by producing marginal witnesses, identifier of executant and Sub‑Registrar, was not a valid document, and no authenticity could be attached to it.
Sana Ullah v. Muhammad Manzoor PLJ 1986 SC 526 (sic); Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 811 and Basri v. Abdul Hameed 1996 MLD 1123 ref.
(b) Civil Procedure Code (V of 1908)‑‑
‑‑‑‑S.115‑‑‑Revisional jurisdiction, exercise of‑‑‑Appellate Court below gave findings against petitioners after discussing evidence on record‑‑‑Petitioners had failed to point out any illegality, material irregularity, jurisdictional defect or misreading or non‑reading of evidence on record‑‑‑Judgment and decree passed by Appellate Court below were unexceptionable and could not be interfered with by. High Court in exercise of revisional jurisdiction.
C.A. Rehman for Petitioner
2000 M L D 1122
[Lahore]
Before Asif Saeed Khan Khosa, J
MUHAMMAD ASHFAQ and another‑‑‑Petitioners
versus
JAMEEL AKHTAR SHEHZAD, CIVIL JUDGE/MAGISTRATE SECTION 30, DUNYA PUR, DISTRICT LODHRAN and others‑‑‑‑Respondents
Writ Petition No.4096 of 1999, decided on 11th May, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 169‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10/16‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Discharge of accused‑‑‑Meaning and nature of discharge order‑‑Magistrate empowered under S.30, Cr.P.C. on report of‑ local police to discharge the accused‑‑‑Validity‑‑‑Police report showed that victim had not supported allegations against the accused and that victim's earlier statements implicating accused had been made by her at‑the behest of others‑‑‑Order of discharge of accused was merely an administrative/executive order regarding custody of accused and same could not be construed to be an order regarding cancellation of a criminal case or termination of prosecution‑‑‑Order of discharge would only mean that physical custody of accused was not required for the time being and upon discovery of fresh evidence or availability of fresh material local police could always re‑investigate the matter after getting necessary permission in that regard from the Magistrate‑‑‑Order of discharge passed by Magistrate S.30, Cr.P.C. being a reasoned order not suffering from any perversity of reasoning or illegality of approach, was correct and could not be interfered with in Constitutional petition.
Abdul Aziz Khan Niazi for Petitioner.
2000 M L D 1124
[Lahore]
Before Sheikh Abdur Razzaq, J.
TALIB DIN---Petitioner
versus
MUHAMMAD BASHIR AHMED ---Respondent
Civil Revision No.760 of 1999, dismissed on 2nd June, 1999.
(a) Civil Procedure Code (V of 1908)---
----S. 115---Revisional jurisdiction---Scope---Trial Court as well as Appellate Court below, after discussing evidence adduced by parties in detail, had returned findings---Such concurrent findings of Courts below not suffering from any infirmity, material irregularity, perversity or arbitrariness, could not be interfered with in revisional jurisdiction of High Court.
Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139. Sheikh Muhamamd Bashir Ali and othes v. Sufi Ghulam Mohi-ud-Din 1996 SCMR 813; Muhamamd Sharif v. Fazal Hussain 1992 ALD 612 and Muhammad Ibrahim v. Nazir Ahmad and 5 others 1999 MLD 1923 ref.
(b) Civil Procedure Code (V of 1908)---
----S. 115---Revisional jurisdiction---Interference with concurrent findings of fact of Courts below by High Court in exercise of its revisional jurisdiction---Scope---High Court while examining legality of judgment and decree under S.115, C.P.C. could not upset findings of fact, however erroneous such findings might be---Finding of fact could only be interfered with by High Court in its revisional jurisdiction, if Courts below had either misread evidence on record or while assessing or evaluating evidence had omitted from consideration some important piece of evidence which had direct bearing on the issue involved---Findings of fact would also be open to interference under S.115, C.P.C. where approach of Courts below was perverse---High Court in its revisional jurisdiction was not competent to reassess entire evidence on record and then discard conclusion of Courts below on account of being inconsistent with its own assessment of evidence---Such process of examination for upsetting concurrent findings of fact in exercise of revisional jurisdiction, was not permissible---Wrong or erroneous conclusion on question of fact by Courts below was not open to interference by High Court in its revisional jurisdiction.
Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139 and Sheikh Muhammad Bashir Ali and others v. Sufi Ghulam Mohi-ud-Din 1996 SCMR 813 ref.
(c) Civil Procedure Code (V of 1908)---
----S. 115---Applicability of S.115, C.P.C.---Provision of S.115, C.P.C. applied to cases involving illegal assumption, non-exercise or irregular exercise of jurisdiction---Such jurisdiction could not be invoked against conclusions of law or fact, which did not affect jurisdiction of High Court, no matter, however erroneous, wrong or perverse, the decision might be either on a question of fact or law, unless decision involved a matter of jurisdiction---Erroneous conclusion of law or fact was liable to be corrected in appeal, but revision would not be competent on such a ground unless in arriving at such conclusion an error of law was manifestly shown to have been committed.
Aurangzeb Mirza for Petitioner.
Mian Abdul Hameed Khokhar for Respondent.
Date of hearing: 2nd June, 1999.
2000 M L D 1130
[Lahore]
Before Muhammad Nawaz Abbasi and Sh. Amjad Ali, JJ
GOVERNMENT OF PAKISTAN---Appellant
versus
Messrs AL-FAROOQ ROLLER FLOUR MILLS LTD. ---Respondent
Regular First Appeal No.68 of 1997, decided on 15th June, 1999.
(a) Contract Act (IX of 1872)--
----S. 73---Tort---Breach of contract---Recovery of damages for breach of contract---Compensation for breach of contract could be claimed under S.73, Contract Act, 1872 only when damage was caused directly by the said breach---Statutory recognition to the rule for recovery of damages for the breach of contract was different to that of general rule for damages and the damages not arising in the usual course of things from the breach could not be claimed in consequence to breach of contract---Contracting party for its own default could not be allowed either to defeat the contract or claim better position without fulfilling his obligation---Breach of contract by a, party was specifically to be proved and unless it was done it was not possible on basis of general allegation to ascertain as to who committed the breach of contract---Plaintiff in such a suit could not claim any sum as damages which was due to his own negligence---Plaintiff was duty bound to take all reasonable steps to mitigate the loss and if some damage was caused to him for his own failure of performing his part of contract, damages for breach of contract either under S.73 of Contract Act, 1872 or under the "tort" could not be granted---Plaintiff having himself being negligent in performance of his obligation, could not plead breach of contract by defendant.
Saeed Ahmad Karmani v. Muslim Commercial Bank,. Islamabad 1993 SCMR 441; Deputy Collector of Central Land Customs, Peshawar and 2 others v. Premier Tobacco Industries, Peshawar 1993 SCMR 447; Islah High School, Chiniot through Province of the Punjab v. Jawad Hussain 1996 SCMR 193; Sufi Muhammad Ishaq v. The Metropolitan Corporation, Lahore through Mayor PLD 1996 SC 737 and Miss Waheed Shafi v. University of Engineering and Technology, Texila through Vice-Chancellor and 3 others PLD 1996 SC 747 ref.
(b) Contract Act (IX of 1872)---
----S. 73--Breach of contract---Tort---Calculation and recovery of damages for breach of contract---Damages either for breach of contract or for tort though were to be calculated in terms of actual loss and following principle of "restituti integram", but endure was to be made to- place injured person in the same situation as if contract had been performed---Plaintiff who himself was guilty of breach of contract as he did not fulfil condition of providing godown and accommodation to staff of defendants, could not claim equity--Generally in case of breach of contract, party who suffered loss by said breach of contract was entitled to recover compensation from other party for actual loss caused to the said party, but in such case party complaining breach must prove that he was always ready and willing to perform his part of contract and had committed no default.
(c) Contract Act (IX of 1872)---
----S. 73---Breach of contract---Recovery of damages ---Extent--Determination---Principles---Damages on account of breach of contract 'would be governed by S. 73 of Contract Act, 1872 and plaintiff could get compensation for actual loss, but in any case general losses were not permitted for such breach of contract---General principle under S. 73, Contract Act, 1872 was that only special damages arising in consequence of breach of contract were allowed and general damages usually concerning with non-pecuniary losses such as loss of reputation, could not be estimates as special loss which was confined to the injury caused to an individual party as a result of breach---No compensation could be given for any remote or indirect loss of damage sustained for breach of contract by reason of one's own fault.
Maulvi Anwar-ul-Haq, D.A.-G. and Ch. Afrasiab Khan, Standing Counsel for Appellants.
Ch. Khurshid Ahmad and Qamar Riaz Hussain for Respondent.
Date of hearing: 2nd March, 1999.
2000 M L D 1146
[Lahore]
Before Bashir A. Mujahid, J
MUHAMAMD SALEEM AKHTAR‑‑‑Petitioner
versus
THE STATE‑‑‑Respondent
Criminal Revision No.227 of 1999, decided on 4th October, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑Ss. 439 & 498‑‑‑Penal Code (XLV of 1860), S.324/337/452/34‑‑Application for pre‑arrest bail‑‑‑Dismissal of‑‑‑Application for pre‑arrest bail filed by accused was dismissed for non‑prosecution as on the date fixed by Court granting him ad interim bail, he did not turn up in the Court‑‑‑Accused had asserted that on the date he could not appear in Court due to his illness‑‑Nothing was on record to prove that accused had requested for adjournment of case and no justification was given for absence of accused on the date fixed by Court‑‑‑Pre‑arrest bail was granted by Court till a particular date and it was duty of accused to appear in person and that of sureties to comply with their undertaking to produce the accused in Court‑‑‑Trial Court had rightly dismissed application of pre‑arrest bail for non‑appearance of accused in absence of any proof of alleged illness of accused.
Subedar (Retd.) Abdur Rehman and another v. The State 1981 PCr.LJ 61 ref.
Hafeez Ahmad Ansari for Petitioner.
2000 M L D 1147
[Lahore]
Before Riaz Kayani, J
MUHAMMAD ALI and others‑‑‑Petitioners
versus
AHMAD $AKHSH and others‑‑‑Respondents
Civil Revision No. 1769 of 1998, decided on 9th March, 1999.
(a) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O. XXXIX, Rr. 1 & 2‑‑‑Interim injunction, grant of‑‑‑Ingredients‑‑‑Three Ingredients Le prima facie case, likelihood of suffering irreparable loss and balance of convenience in favour of plaintiff must exist in grant of interim injunction.
(b) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), S.115 & O.XXXIX, Rr.l & 2=‑‑Suit for declaration‑‑‑Interim injunction, grant of‑‑‑Plaintiffs had claimed that one‑third of suit property had been bequeathed by deceased in their favour through a "will" in lieu of services rendered by them to deceased in his lifetime‑‑‑Plaintiffs had also filed application for grant of interim injunction in their favour‑‑‑Claim of plaintiffs in respect of one‑third property of deceased through 'will' had been disputed by defendants who were real brother and sister of deceased alleging that "will" which was not got authenticated by decree of a Court was forged one‑‑‑Trial Court granted interim injunction to plaintiffs, but Appellate Court, recalled order of Trial Court-‑‑Validity‑‑‑Plaintiffs had not proved prima facie case in their favour as "will" was yet to be proved and till that was done, a clog could not be placed on rights of defendants who were heirs of deceased‑‑‑If subsequently it was found out that "will" was genuine, suit would be decided and any alienation made during pendency of litigation, would be hit by doctrine of lis pendense‑‑‑Appellate Court below, in circumstances, had rightly vacated interim injunction/order issued by Trial Court in favour of plaintiffs.
Khan Zahid Hussain Khan for Petitioners.
Hafiz Khalil Ahmad for Respondents.
Date of hearing: 19th March, 1999.
2000 M L D 1155
[Lahore]
Before Mrs. Fakhar‑un‑Nisa Khokhar, J
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY INC. and others‑‑‑Applicants
versus
MUHAMMAD NASRULLAH BEG, ADVOCATE‑‑‑Respondent
Civil Revision Application No.436 of 1999, decided on 20th May, 1999
(a) Civil Procedure Code (V of 1908)‑‑
‑‑‑‑Ss. 9, 20, & O. VII, R. 10‑‑‑Suit for recovery of amount as damages‑‑Application for return of plaint‑‑‑Application under O. VII, R.10, C.P.C. for return of plaint was filed by defendant contending that Court had no jurisdiction to try the suit‑‑‑Trial Court framed issues regarding point of jurisdiction, but left same opened and dismissed applications of defendant on ground that defendant had failed to produce original record in Court and that without examining said record, it was _ not possible to decide question of jurisdiction‑‑‑Validity‑‑‑Courts were within their discretion to decide question of jurisdiction, lack of cause of action or limitation even without evidence‑‑‑When parties were at controversy regarding point of jurisdiction of Court, it was incumbent upon the Court either to decide question of jurisdiction after giving an opportunity of hearing to . parties and then to proceed with the other issues regarding merits of case‑‑‑When Court had formulated issues on pleadings of parties and controversy related to issue of jurisdiction, Court could treat point of jurisdiction as preliminary issue and direct parties to lead evidence and after examining evidence decide issue of jurisdiction and proceed with remaining evidence and pronounce judgment on other issues‑‑‑Court which had already formulated issue regarding jurisdiction must decide said question on basis of evidence.
State Life Insurance Corporation of Pakistan v. Rang Muhammad Saleem 1987 SCMR 393; Messrs Kadir Motors (Regd.), Rawalpindi v. Messrs National Motors Ltd., Karachi and 3 others 1992 SCMR 1172; A.B.C. Aminart (Pvt.) Ltd. and another v. A.P. Agencies Saleem 1990 MLD 1344. (SC of India); Messrs M.G. Brothers Lorry Service v. Messrs Prasad Textiles 1984 PSC 301 (SC of India); Messrs Rupali Polyester Limited v. Dr. Nael. G. Bunni and others PLD 1994 Lah. 525; S. ‑Zafar Ahmad v. Abdul Khaliq PLD 1964 Kar. 149; Bashir Ahmad Khan v. Qaiser Ali Khan and others PLD 1973 SC 507; Aziz‑ur‑Rehman v. Government of N.‑W.F.P. and others PLD 1996 Pesh. 51; Waheed Gul v. Mst. Saida Jan 1998 MLD 3; Olley v. Marlborough Court ‑ Limited (1949) 1KB 532; Thornton v. Show Lane .Parking Ltd. (1971) 2 QB r63 and "L" Estrange v. F. Graucob Ltd. (1934) 2 KB 394 ref.
(b) Civil Procedure Code (V of 1908)
‑‑‑‑O. VII, R. 10, O. XLVII, R. 1 & S.115‑‑‑Suit for recovery of amount of damages‑‑‑Application for return of plaint‑‑‑Application under O.VII, R.10, C.P.C. for return of plaint filed on ground that Court had no jurisdiction to try suit was dismissed by Trial Court finding that defendant had failed to produce original record in Court and that without examining said record it was not possible to decide question of jurisdiction‑‑‑Validity‑‑‑Trial Court framed issue with regard to point of jurisdiction, but left same open‑‑‑Trial Court framed issue with regard to point of jurisdiction and in both judgments, not only discussed but logically considered state of facts including a step in aid of determination of controversy between parties in course of trial of suit‑‑‑High Court could interfere in judgment of Trial Court in exercise of revisional jurisdiction under 5.115, C.P.C. as same was a "case decided"‑‑‑Judgment of Trial Court suffering for lack of exercise of jurisdiction being totally ambiguous, was set aside by High Court in exercise of its revisional jurisdiction.
S. Zafar Ahmad v. Abdul Khaliq PLD 1964 (W. P.) Kar. 149; Bashir Ahmad Khan v. Qaiser Ali Khan and 2 others PLD 1973 SC 507 and Amanullah Khan (A. Khan) v. Chotey Khan 1978 SCMR 14 ref.
Jawwad Hassan for Petitioners.
Respondent in person.
Date of hearing: 20th May, 1999
2000 M L D 1164
[Lahore]
Before Sayed Najam‑ul‑Hassan Kazmi, J
MUHAMMAD ISLAM‑‑‑Petitioner
versus
LAHORE DEVELOPMENT AUTHORITY and others‑‑‑Respondents
Writ Petition No.25947 of 1998, decided on 4th November, 1999.
Lahore Development Authority Act (XXX of 1975)‑‑‑
‑‑‑‑Ss. 18 & 19‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Construction over a plot‑‑‑Petitioner purchased plot through registered sale=deed and after getting plan sanctioned from Metropolitan Corporation started construction over that plot‑‑‑City Development Authority started interference in said .construction on the ground that it had control over area in which plot was situated‑‑‑Metropolitan Corporation which sanctioned the plan had stated that plan for construction was sanctioned as plot in question fell in the area controlled by the Corporation‑‑‑Development Authority had failed to produce any material on record to show that the . Authority had any control over area‑ concerned or that the Authority had any right to interfere in the construction within area controlled by Corporation‑‑Petitioner having raised construction over plot by getting sanction for construction from concerned Corporation, he could not be subjected to any illegal action of Development Authority‑‑‑In absence of any record showing plot falling in controlled area of Development Authority, act of Authority could not be approved‑‑‑Authority was restrained to make any illegal interference in the construction.
N.A. Butt for Petitioner.
Mian Muzaffar Hussain for Respondents Nos. l and 2.
Date of hearing; 4th November, 1999.
2000 M L D 1170
[Lahore]
Before Raja Muhmmad Sabir, J
KHALID MAHMOOD -Petitioner
versus
S.H.O. ---Respondent
Criminal Miscellaneous No.. 1572/H of 1998, decided on 27th November. 1999.
Criminal Procedure Code (V of 1898)---
----S. 491---Habeas corpus petition---Person who was not nominated as an accused in the case registered under S.395, P.P.C., was found by Bailiff in police station with handcuff and chained with a cot---Another person, 'who was father of the said detenu was also found present at the police station--Police had neither recorded arrest of detenu in the papers nor had produced any file before Bailiff at the time of raid---If detenus were really accused in any case, it was duty of police to enter their arrest in daily diary immediately and produce them before competent Court within 24 hours as required under law---Police having failed to do same, detention of both the persons was illegal ---Detenus were ordered to be set at liberty.
N.A. Butt for Petitioner.
Respondent in person.
2000 M L D 1172
[Lahore]
Before Iftikhar Hussain Chaudhry . and Zafar Pasha Chaudhry, JJ
WAJID ALI ---Petitioner
versus
MUMTAZ ALI KHAN and another---Respondents
Criminal Miscellaneous No.5749-BC of 1998, decided on 25th May, 1999.
(a) Criminal Procedure Code (V of 1898)---
----S. 497(5)---Penal Code (XLV of 1860), S.302/324/427/109/148/149--Bail, cancellation of---Application for cancellation of bail was opposed on ground that petitioner had'not moved lower Court for cancellation of bail before filing petition before High Court---Validity---Court granting bail was not to be approached in all cases in first instance for cancellation 'of bail under S.497(5), Cr.P.C.---Further wastage of time in moving Lower Court, when time factor was prima facie involved, would be an additional reason for not making direction for moving lower Court in the first instance--Cancellation of bail having not been sought by petitioner on any additional ground, but was sought on the ground that law was mis-appreciated by lower Court in granting bail to the accused---Calling upon petitioner to go back to the lower Court, in circumstances, would not be a well-advised direction.
Ziaul Hassan v. The State PLD 1984 SC 192 ref.
(b) Criminal Procedure Code (V of 1898)---
----S. 497(5)---Penal Code (XLV of 1860), S.302/304/427/109/148/149--Bail, cancellation of---Language of petition for cancellation of bail---Petition for cancellation of bail filed by prosecution had been sought to be dismissed by accused on the ground that same contained foul language---Validity--Petition before Court of law no doubt had to be appropriately and decently worded and scandalous accusations, allegations, oblique references and unnecessary embellishment should be avoided, but door of Court of law should not be closed down on uncivil and uncouth litigant---Petitioner though had used strong words in petition for cancellation of bail, petition could not be dismissed simply on that ground.
(c) Penal Code (XLV of 1860)---
----Ss. 109 & 302(b)---Abetting of offence---Abettor would be liable to same punishment just as main accused, including that of death, but not as Qisas but as Ta'zir---Abettor for all practical purposes, had to face consequences of the criminal act just like the accused who had committed actual offence.
(d) Criminal Procedure Code (V of 1898)---
----S. 497(5)---Penal Code (XLV of 1860), S.302/324/427/109/148/149--Bail, cancellation of Evidence on record had proved that accused has strong motive to do away with deceased and that accused was the master-mind and driving force behind the whole incident---Accused had confederated, conspired with and abetted his co-accused in commission of offence of murder of three persons---Reasonable ground existed to believe that accused was guilty of a non-bailable offence and could not be allowed bail---Prosecution had sufficient material to show that accused had preplanned occurrence, had declared his intention and had taken steps for accomplishment of his designs---Complainant had provided necessary information to police at time of making F.I.R. which had manifested full involvement of accused in commission of offence, but that aspect of case was ignored by Trial Court in granting bail to accused---Bail granting order had been found to be militating against law and facts and was based on mis-appreciation of law on the subject, which could not sustain---Bail unjustifiably allowed to accused, was cancelled, in circumstances.
1979 SCMR 567; PLD 1988 SC 621; 1985 SCMR 382; Zia-ul-Hassan v. The State PLD 1984 SC 192; Syed Amanullah Shah v. The State and another PLD 1996 SC 241; Mazhar Mehmood v. Basit and another 1997
SCMR 915;.Nazir v. Amir Din and another 1971 SCMR 637; Muhammad Khalid v. Haji Muhammad Akram 1997 Cr.L.J. 269; Mirza Khan v. Lal Khan 1976 PCr.LJ 324; Muhammad Nazir Butt v. The State 1991 PCr.LJ 13; Ashiq Hussain v. The State 1993 SCMR 117; Mehr Ghulam Nabi v. Muhammad Shafiq and another 1979 SCMR 479; Moula Bux v. Shadan and others 1997 PCr.LJ 1573; PLD 1989 SC 633; PLD 1996 SCMR 241 and 1996 MLD 1361 ref.
Syed Ehtesham Qadir Shah for Petitioner.
Dr. A. Basin for Respondent No. 1.
.
Mukhtar Hussain Sherazi for the State.
Date of hearing: 25th May, 1999.
2000 M L D 1196
[Lahore]
Before Tassaduq Hussain Jilani, J
MUHAMMD JAHANGIR and others‑‑‑Petitioners
versus
GOVERNMENT OF PUNJAB and others‑‑‑Respondents
Writ Petitions Nos, 6576 and 6080 of 1998, decided on 30th April, 1998:
Cantonments Act (II of 1924)‑‑
‑‑‑‑S.45‑‑‑Constitution of Pakistan (1973), Arts. 4, 24 & 199‑‑Constitutional petition‑‑‑Acquisition of property for public purpose‑‑Precedence of public welfare over individual right‑‑‑Petitioners who were occupants of shops and houses adjacent to area sought to be acquired for construction of flyover, had challenged the construction contended that they being lessees of Cantonment Board for ninety years through agreement, were entitled to easement rights and said rights could not be interfered with through construction of flyover which act of Development Authority would be violative of Art. 4, Constitution of Pakistan, (1973)‑‑‑Authority not only had examined project from economic angle, but also had taken into consideration its environmental aspect‑‑‑Provisions of sub‑clause (2) of Art.24, Constitution of Pakistan (1973) had imposed a Constitutional restriction on law of eminent domain and the "State" retained power to .acquire property of its subjects for a public purpose‑‑‑If a project or a scheme was actuated by laudable consideration of public welfare; if the same led to general convenience of public; if it engendered commercial activity to the benefit of public at large and if its impact on environment was considered to be positive then such project must have precedence over individual rights‑‑Question that flyover proposed to be constructed was unnecessarily long or that it had been designed to help a particular individual, were questions of fact requiring leading of evidence calling for factual inquiry which exercise could not be undertaken in Constitutional petition‑‑‑Contention that a Joint Committee in terms of S.45 of Cantonments Act; 1924, should have been constituted was repelled,‑ firstly because S.45, Cantonments Act, 1924 was an enabling provision and could not have binding effect, and secondly that Cantonment Board had expressed that construction of flyover being a public welfare project, Board had no objection to the construction thereof.
PLD 1969 SC 223; 1992 MLD 2259; 1996 CLC 1914; 1994 SCMR 923; PLD 1992 Lah. 462; PLD 1983 SC 243; PLD 1993 Kar. 67; 1991 MLD 1112; 1995 CLC 1012; 1992 MLD 200;. Karachi Buildings Control Authority v. Saleem Akhtar Rajput 1993 SCMR 1451 and Federation of Pakistan v. Saeed Ahmad PLD 1974 SC 151 ref.
A.K. Dogar and Syed Zameer Hussain for Petitioners.
Azmat Saeed for Respondents.
Kh. Muhammad Sharif, A.‑G., Punjab and Sh. Anwar‑ul‑Haq, Dy. A.‑G. for the Cantonment Board.
Dates of hearing: 21st, 22nd, 23rd, 24th and 28th April, 1998.
2000 M L D 1205
[Lahore]
Before, Mian Saqib Nisar, J
KHALID MEHMOOD‑‑‑Petitioner
Versus
ADDITIONAL DISTRICT JUDGE, AHMEDPUR EAST
DISTRICT BAHAWALPUR and others-‑‑Respondents
Writ Petition No. 6556 of 1998/BWP, decided on 22nd June, 1999
Muslim Family Laws Ordinance (VIII of 1961)‑‑‑
‑‑‑‑S. 10‑‑‑West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑
Suit for recovery of dower‑‑‑Relevant column of Nikahnama showed that 10 tolas of gold ornaments and one lac rupees was fixed as dower‑‑‑Husband vide a Tamleeqnama also gifted part of a house to the wife‑‑‑When parties separated, wife filed suit for recovery of dower claiming that as neither 10 tolas of gold had been given nor one lac rupees had been paid to her as dower, husband be directed to execute sale‑deed of house in her favour‑‑‑Husband had asserted that he had paid one lac rupees to wife and that alleged Tamleeqnama was not a genuine document‑‑‑Validity‑‑‑Genuineness of gift of house in lieu of dower amount had been proved by Nikahnama itself which was not disputed by the husband‑‑‑Evidence on record had proved that no cash amount was paid to the wife‑‑‑Had husband paid said amount to wife he should have proved the same through positive evidence‑‑‑Solitary statement of the man to discharge burden of proving cash payment was not sufficient in the eyes of law‑‑‑Trial Court having unjustifiably dismissed suit of wife, Appellate Court rightly set aside judgment of Trial Court‑‑Judgment of Appellate Court based on evidence on record and cogent reasons, could cot be interfered with in Constitutional jurisdiction of High Court when no misreading and non‑reading of evidence on record had been pointed out.
Allauddin Arshad v. Mst. Neelofar Tareen and others PLD 1984 Lah. 401 ref.
Malik Muhammad Aslam for Petitioner.
Jam Bilal Ahmed for Jam Mehjeeb Ahmed for Respondents.
Date of hearing: 22nd June, 1999.
2000 M L D 1208
[Lahore]
Before Syed Najam‑ul‑Hassan Kazmi, J
MUHAMMAD SADIQ‑‑‑Petitioner
Versus
ABDUL GHAFOOR and another‑‑‑Respondents
Civil Revisions Nos. 138 and 85 of 1998, decided on 6th November, 1998.
Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑Ss. 12, 27(b) & 54‑‑‑Civil Procedure Code (V of 1908), S.115=‑‑Suit for specific performance of agreement of sale and permanent injunction‑‑Plaintiff had claimed that his father had agreed to sell half of his property in his favour through agreement of sale whereas defendant had alleged that vendor/father of plaintiff subsequently had disposed of property in his favour through a registered sale‑deed‑‑‑Defendant had filed suit for permanent injunction to restrain plaintiff, who had filed suit for specific performance of agreement of sale, from making interference into possession of suit property‑‑‑Trial Court consolidated the two suits and suit for specific performance of agreement was decreed while suit filed by respondent for perpetual injunction was dismissed, but Appellate Court dismissed suit for specific performance and decreed suit for perpetual injunction holding that respondent was bona fide purchaser of property for value and also that relief of possession had not been claimed by plaintiff in his suit for specific performance of agreement‑‑‑Validity‑‑‑Trial Court did not frame any issue on question of absence of notice or bona fide purchase by defendant in suit as required under S.27(b) of Specific Relief Act, 1877 nor parties appeared to have attended to that part of controversy‑‑‑Appellate Court, in circumstances, could not decide that question for the first time without asking parties to produce evidence‑‑‑Objection of maintainability of suit for specific performance of agreement, that possession had not been claimed, was repelled because suit in itself primarily was a suit for possession‑‑‑Grant of relief of possession was one of the consequence of enforcement of agreement of sale and Court was competent to grant that relief, no matter same had not been specifically asked for‑‑‑Court, even otherwise, could grant relief to a party on the basis of admitted fact on record, no matter a particular part thereof had not been specifically asked for‑‑‑No suit could be dismissed if a particular part of relief had not been prayed for and Court, at best, could direct party to amend plaint and that too to decide suit on merits‑‑‑Dismissal of suit on ground that relief of possession was not claimed by plaintiff, without calling upon parties to amend pleadings, was not permissible in law‑‑‑Case was remanded to Trial Court.
Samar Gul v. Central Government and others PLD 1986 SC 35 and Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762 ref.
Muhammad Farooq Qureshi Chishti for Petitioner.
Khan Zahid Hussain Khan for Respondents.
Date of hearing: 6th November, 1998.
2000 M D 1212
[Lahore]
Before Rashid Aziz Khan, CJ and Faqir Muhammad Khokhar, J
THE COLLECTOR OF CUSTOMS (PREVENTIVE), CUSTOMS HOUSE, LAHORE‑‑‑Appellant
Versus
Haji FAZAL, DIN and others‑‑‑Respondents
Customs Appeal No.51 of 1998, decided on 7th June, 1999
(a) Customs Act (IV of 1969)‑‑‑
‑‑‑‑Ss. 156(1)(89), 157(2), 168, 171, 179 & 180‑‑‑Proceedings before Customs Authorities‑‑‑Nature‑‑‑Criminal proceedings before Court and confiscation proceedings before Customs Authorities were concurrent, independent and mutually exclusive‑‑‑Question as to whether any seized goods were to be returned to the persons from whose possession they were seized, was to be decided by Customs Authorities and not by Customs Judge under S. 156(1)(89), 168, 171, 179 & 180, Customs Act, 1969.
Central Board of Revenue and another v. Khan Muhammad PLD 1986 SC 192; Adam v. Collector of Customs, Karachi and another PLD 1969 SC 446; Mosam Khan and others v. The State 1969 SCMR 208 and The State v. Ghulam Jaffar and others PLD 1970 Pesh. 66 ref.
(b) Customs Act (IV of 1969)‑‑‑
‑‑‑‑Ss. 2(s), 156(1)(89) & 157(2)‑‑‑Appreciation of evidence‑‑‑Gold allegedly recovered from accused proved to be of foreign origin as per "purity report" of Pakistan Mint‑‑‑Accused failed to show by producing any documentary or other evidence t6 discharge initial onus of proof that gold in question had been achieved by process or other means having been employed in Pakistan which was necessary in view of provisions of S.2(s), subsection (1), ql(89) and subsection (2) of 5.156 of Customs Act, 1969‑‑‑In absence of any evidence to the contrary, Collector of Customs was justified to draw inference that gold in question was of foreign origin and was smuggled goods.
(c) Customs Act (IV of 1969)‑‑‑
‑‑‑‑Ss. 156, 157, 158, 168, 170, 172 & 174‑‑‑Criminal Procedure Code (V of 1989), Ss.51, 54 & 550‑‑‑Search, seizure and confiscation proceedings ‑‑Jurisdiction‑‑‑Assistant Sub‑Inspector of Police took steps for making search and arrest of accused during patrol duty by virtue of provisions of Ss.51, 54 & 550, Cr.P.C. and reported matter to Inspector/Incharge of Police Station who concluded formal proceedings of seizure of the goods as required by provisions of Ss.. 158, 161(1), 168(1)(3) & 170 of Customs Act, 1969‑‑Validity‑‑‑Any officer of police of rank of Sub‑Inspector being empowered under provisions of Ss. 158, 160, 161(1)(2), 164, 165, 168(1)(3), 172 &'174 of Customs Act: 1969, no exception could be taken to the validity of seizure and subsequent proceedings of confiscation of goods by Collector of Customs.
Abdur Rauf Khan v. Collector, Central Excise and Land Customs, Peshawar and 3 others 1980 SCMR 114 and State through Deputy Attorney-General, Peshawar v. Banda Gul and 2 others 1993 SCMR 311 ref.
A. Karim Malik for Petitioner. Muhammad Hussain Ch. for Respondents
Date of hearing: 7th June, 1999
2000 M L D 1216
[Lahore]
Before Syed Najam-ul‑Hassan Kazmi, J
Mst. ASLAM KHATOON‑‑‑Petitioner
Versus
MUHAMMAD MUNIR and others‑‑‑Respondents
Writ Petition No. 16410 of 1997, decided on 15th October, 1998
Guardians and Wards Act (VIII of 1890)‑‑‑
‑‑‑‑S.25‑‑‑Custody of minor‑‑‑Consideration‑‑‑Paramount and supreme consideration in custody of minor was the welfare of minor and nothing else‑‑‑Mere fact that minor had attained age of seven years, could not be a solitary ground for disturbing custody of minor‑‑‑Poverty of guardian was no ground for considering the matter of custody‑‑‑Minors in custody of mother were getting proper education and enjoying good health‑‑‑Disturbance of custody of minor would adversely affect their welfare‑‑‑Welfare of minors in circumstances, demanded that they should remain with their mother.
1998 SCMR 593 ref.
Zahid Hussain Khan for Petitioner.
Muhammad Farooq Qureshi for Respondents
Date of hearing: 15th October, 1998.
2000 M L D 1219
[Lahore]
Before M. Naeemullah Khan Sherwani and Bashir A. Mujahid, JJ
GHULAM SARWAR and others‑‑‑Appellant
Versus
THE STATE‑‑‑Respondent
Criminal Appeals Nos. 273 and 295 and Murder Reference on 202 of 1997, decided on 27th September, 1999.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302/324/148/149‑‑‑Appreciation of evidence‑‑‑Accused caused injuries to the deceased while he was armed with 12 bore gun which was recovered at his, instance‑‑‑Reports of Chemical Examiner, Serologist and that of Forensic Science Laboratory were positive‑‑‑Ocular account was supported by medical evidence, prosecution injured‑ witness and the complainant ‑‑‑F.I.R. was prompt‑‑‑Conviction of accused; was maintained, but occurrence having taken place due to family honour, High Court‑took lenient view and converted sentence of death awarded to accused by Trial Court into imprisonment far life‑‑‑One of the co‑accused was alleged to be armed with rifle, but said rifle was not recovered at his instance and co‑accused was not alleged to have caused any injury to the deceased or injured‑‑‑Other coaccsued was empty‑handed and had not actively participated in the occurrence ‑‑‑Co‑accused were declared innocent in investigation‑‑Involvement of said co‑accused being doubtful, they were acquitted of charge by extending them benefit of doubt.
Sahibzada Farooq Ali Khan for Appellant.
Muhammad Aslam Sumra for the State.
Malik Zafar Mehmood Anjum for the Complainant.
Date of hearing: 27th September, 1999
2000 M L D 1231
[Lahore]
Before Sheikh Abdur Razzaq, J
MUHAMMAD AZEEM‑‑‑Petitioner
Versus
THE STATE‑‑‑Respondent
Criminal Miscellaneous No.2102/B of 1999, decided on 15th July, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34/109‑‑‑Bail, grant of‑‑Main and vital role had been attributed to accused who had been responsible for death of the deceased‑‑‑Trial had started and as many as nine prosecution witnesses had been examined and only Medical Officer and Investigating Officer remained to be examined‑‑‑Bail could not be allowed to accused in view of part attributed to accused and stage of the trial.
Sher Ali alias Sheri v. The State 1998 SCMR 190; Muhammad Iqbal v. State PLJ 1998 Cr.C Lah. 1573; Abdul Hameed v. The State 1999 MLD 1333; Panjal v. The State 1990 PCr.LJ 2051; Umar Draz and another v. State 1997 SCMR 885; Shahjee v. The State 1999 PCr.LJ 1062; Dilawar Khan v. The State 1998 PCr.LJ 18 and Sh. Liaqat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504 ref.
Ijaz Ahmad Qureshi for Petitioner.
Shahid Mubeen, A.A.‑G. and Nazir Ahmad Chaudhry for the State Azmat Ali Khan Taga for the Complainant.
2000 MLD 1233
[Lahore]
Before Nazir Ahmad Siddiqui, J
MUHAMMAD TARIQ‑‑--Petitioner
Versus
THE STATE‑‑‑Respondent
Criminal Miscellaneous No. 757‑B of 1999, decided on 15th October, 1999.'
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10(3) & 16‑‑‑Bail, grant of‑‑‑Accused, earlier involved in Hudood case in respect of present alleged abductee was acquitted after conclusion of trial by competent Court in which accused had claimed that alleged abductee was his legally‑wedded wife‑‑‑No suit for jactitation of said marriage had been filed by alleged abductee despite the Nikah had come to her knowledge during earlier trial‑‑‑Accused was behind the bar for the last seven months and trial had not commenced‑‑‑Case against accused being one of requiring further inquiry, was admitted to bail.
NLR 1996 SD 37; 1999 PCr.LJ 86 and NLR 1988 SD 15 ref.
Sardar Riaz Ahmad Dahar for Petitioner Rafique Ahmed Bodla for the State.
Masood Hashmi for the Complainant.
2000 M L D 1242
[Lahore]
Before Bashir A. Mujahid, J
MUHAMMAD IDREES ‑‑‑ Appellant
Versus
THE STATE‑‑‑Respondent
Criminal Appeal No.683 of 1994, decided on 21st June, 1999.
Penal Code (XLV of 1869)‑‑‑
‑‑‑‑S. 302/308/324/34, 302(c) & 308‑‑‑Appreciation of evidence‑ Occurrence had taken place inside or near the house of accused‑‑‑Injury on deceased was admitted by accused on specific plea of self‑defence and grave, and sudden provocation alleging, that sister of accused was injured by, complainant party who trespassed into the house of accused and insulted his old father and that to protect honour of family and in self‑defence under grave and sudden provocation, he fired single shot at deceased which proved fatal‑‑‑Motive of occurrence was proved by eye‑witnesses and recovery witnesses‑‑‑Injuries on person of accused and his sister had been suppressed by eye‑witnesses‑‑‑Occurrence did not take place in the manner as had been narrated by complainant and prosecution‑‑‑Possibility could not be overruled that accused had fired single shot with licensed gun to protect his family honour as his father was being insulted or under grave and sudden provocation while his sister was injured by complainant party‑‑‑Occurrence having taken place either inside the house of accused or in front of their house, even if defence version was admitted as correct and considered accused having exercised his right of self‑defence, he could be convicted under S. 302(c), P.P.C. or under S.308, P.P.C. being a minor at time of commission of offence‑‑‑Conviction of accused was maintained, but his sentence was reduced accordingly.
Ch. Anwar‑ul‑Haq for Appellant.
Miss Tasneem Amin for the State.
Date of hearing: 21st June, 1999.
2000 M L D 1252
[Lahore]
Before M. Javed Buttar, J
MUHAMMAD ASHRAF‑‑‑ Petitioner
versus
DISTRICT MAGISTRATE, GUJRANWALA‑‑‑Respondent
Writ Petition No.7944 of 1999, heard on 2nd June, 1999.
(a) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)‑‑‑
‑‑‑‑Ss.3 & 26‑‑‑Preventive detention‑‑‑Jurisdiction of District Magistrate‑‑Arrest and detention order passed by District Magistrate had been disputed on ground that the order could not be passed by District Magistrate without prior approval of Government as envisaged under S.3(4) of West Pakistan 'Maintenance of Public Order Ordinance, 1960‑‑‑Order was ‑not passed by District Magistrate against accused in routine, but was passed after satisfaction that arrest and detention of accused was necessary under the circumstances‑‑‑Accused could not prove that District Magistrate in ordering his arrest and detention had acted in mala fide manner‑‑‑District Magistrate, who had been delegated powers of Government under S.26 of West Pakistan Maintenance of Public Order Ordinance, 1960 was competent to pass arrest and detention order under S.3 of the Ordinance even without making reference to Government especially when it was not alleged that District Magistrate, in passing said order had acted in mala fide manner.
Liaquat Ali v. Government of Sindh through Secretary, Home Department and another PLD 1973 Kar. 78; Noor Muhammad v. District Magistrate, Multan PLD 1976 Lah. 233; Mst. Shazia Parveen v. District Magistrate Okara PLD 1988 Lah. 611; Muhammad Siddiq Khan v. District Magistrate PLD 1992 Lah. 140 and Malik Ghulam Jilani v. The Government of West Pakistan through the Home Secretary, Lahore and another PLD 1967 SC 373 ref.
(b) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)‑‑‑
‑‑‑‑Ss. 3 & 26‑‑‑Preventive detention‑‑‑Mere involvement of a person in many criminal cases, per se, was not a valid ground for the arrest and detention of said person under S. 3 of West Pakistan Maintenance of Public Order Ordinance, 1960‑‑‑District Magistrate could lawfully pass an order of arrest and detention of a person under S. 3 only when he was convinced/satisfied that the person was a threat to public peace and tranquility in area and that if left at large, he would be a source of mischief in the area‑‑‑Word "satisfied" as provided in S.3(1), West Pakistan Maintenance of Public Order Ordinance, 1960, did not mean subjective satisfaction of Authority, but should meet objective standard and tests‑‑‑Arrest and detention order passed against accused on ground that he was involved in many criminal cases, was set aside being illegal.
Mst. Sorayya Begum v. Government of the Punjab and 2 others 1979 PCr.LJ 660; Masad Khan .v. District Magistrate, Peshawar and 3 others PLD 1997 Pesh. 148; Muhammad Yasin v. District Magistrate, Kasur and another 1997 MLD 2211; Muhammad Mushtaq v. District Magistrate, Sheikhupura and another 1997 MLD 1658; Shahbaz Afghan v. The District Magistrate and 2 others 1990 PCr.LJ 274; Mst. Shazia Parveen v. District Magistrate, Okara PLD 1988 Lah. 611; Bashiran Bibi v. The District Magistrate, Kasur 1990 PCr.,LJ 913; Umer Din alias.Umroo v. S.H.O., Bhai Pheru and 3 others 1990 PCr.LJ 948; Jalal alias Jala v. District Magistrate, Kasur and 2 others 1990 PCr.LJ 1529; Muhammad Azeem v. District Magistrate, Rahim Yar Khan and another 1998 PCr.LJ 1123 and Abdul Hamid Khan v. The District Magistrate, Larkana and 2 others PLD 1973 Kar. 344 ref.
(c) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)‑‑‑
‑‑‑‑S. 3‑‑‑Word "satisfied ."‑‑‑Connotation‑‑‑Epithet "satisfied" occurring in S.3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 did not mean subjective satisfaction of the concerned Authority but same should meet objective standards end tests.
Muhammad Hanif Niazi for Petitioner.
Rana Muhammad Naeem Sarwar, A.A.‑G for Respondents.
Dates of hearing: 1st and 2nd June, 1999.
2000 M L D 1269
[Lahore]
Before Muhammad Naseem Chaudhri, J
MUHAMMAD NAZIR---Petitioner
versus
THE STATE---Respondent
Criminal Miscellaneous No. 1434-B of 2000, heard on 28th March, 2000.
(a) Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), S.302/324/148/149---Bail--Accused though armed with carbine did not use the same and did not fire at any person---Being the father of three co-accused was no ground to disentitle the accused to bail ---Lalkara attributed to accused was not of commanding nature---Accused had neither practically participated in the occurrence, nor any overt act was ascribed to him---Involvement of accused in the matter, therefore, was a question of further inquiry---Bail was allowed to accused in circumstances.
(b) Criminal Procedure Code (V of 1898)---
----S. 497---Bail in a non-bailable offence after challan of accused--Reasoning that the accused has been challaned in a non-bailable offence and he is not entitled to concession of bail has no legal weight, as a bail application has to be disposed of within the framework of S.497, Cr.P.C.--T Bail application is competent even after an accused is challaned and the same can be accepted within the limits of law.
Ch. Mushtaq Masood for Petitioner.
Ashfaq Bokhari for the State.
Muhammad Nawaz Sulehria for the Complainant
Date of hearing: 28th March, 2000
2000 M L D 1273
[Lahore]
Before Iftikhar Hussain Chaudhry, J
ZULFIQAR ALI VIRK and others‑‑‑‑Petitioners
versus
D.I.‑G. and others‑‑‑Respondents
Writ Petition No. 235 of 2000, decided on 17th January, 2000.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302‑‑‑Criminal Procedure Code (V of 1898), S.176‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Quashing of inquiry‑‑Accused, who were functionaries of police, had sought quashing of inquiry being made against them in a case of custodial death‑‑‑Allegations made against accused Were of serious nature which warranted due probe in view of certain features of the case‑‑‑Accused had taken the plea of self‑defence and when such plea was raised in a criminal case, the defence whether in civvies or in uniform always had a case to answer‑‑Criminal case could not be put in a cold storage merely because the police claimed to have acted in self‑defence, rather it merited thorough and proper investigation‑‑‑Scope of inquiry under S.176, Cr.P.C. was always limited which aimed at ascertainment of the cause of a custodial death and such inquiry could be held instead or in addition to an investigation‑‑Investigation in a case or prosecution of an accused where an enquiry had been held by a Magistrate, was not barred‑‑‑Enquiry under S.176, Cr.P.C. did envisage determination of guilt or innocence of accused in the matter‑‑Opinion of Enquiry Officer relied upon by the accused was meaningless and did not advance their case in any manner‑‑‑Investigation being carried out in the case had legitimate full support of the law and the precedent‑‑Constitutional petition was dismissed accordingly.
1986 MLD 1196 ref.
Ch. Naseer Ahmad Sindhu and Parvez Inayat Malik, Advocates.
2000 M L D 1279
[Lahore]
Before Ali Nawaz Chowhan, J
MANZOOR HUSSAIN ---Petitioner
versus
THE STATE---Respondent
Criminal Miscellaneous No. 367-B of 2000, decided on 9th March, 2000.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), S.302/34---Bail---Deputy Superintendent of Police had opined in favour of accused stating the occurrence to be a blind murder---Said D.S.P., who was present in Court was unable to justify the grounds on which he had formed such an opinion, nor he had adopted any scientific approach while arriving at his conclusions---Investigation conducted by the D.S.P. was not up to the mark and his conclusions were neither logical nor rational---Bail could not be granted to accused on account of-the aforesaid opinion of the D.S.P. and the same was declined to him---Accused, however, could apply afresh for bail after the investigation by the Range Crimes to which the case was entrusted for such purpose.
Mian Arshad Latif for Petitioner.
Mian Fazal Rauf Joyia for the Complainant.
Anwar-ul-Haq for the State.
2000 M L D 1288
[Lahore]
Before Sayed Najam‑ul‑Hassan Kazmi, J
ZAKI AHMED ‑‑‑Petitioner
Versus
MUNICIPAL COMMITTEE BAHAWALPUR
through Administrator‑‑‑Respondent
Civil Revision No. 140‑D of 1978, decided on 16th June, 1999.
Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑Ss. 10 & 42‑‑‑Limitation Act (IX of 1908), S. 5‑‑‑Suit for declaration and delivery of possession‑‑‑Delay, condonation of‑‑‑Suit having been decreed plaintiff/decree‑holder applied for execution of decree‑‑‑Notices were issued to defendant‑authority/judgment‑debtor which obtained many opportunities to obey decree, but instead of obeying decree, Authority filed appeal against judgment of Trial Court after about four months of said judgment‑‑‑Delay in filing appeal being about four months, appellant filed application for condonation of said delay‑‑‑Appellate Court below accepted application of condonation of delay despite explanation given by appellant for said delay was not logical‑‑‑Validity‑‑‑Plea of condonation of delay having been seriously contested, Appellate Court could not condone same without framing issue and recording evidence‑‑‑Unless facts asserted' in application for condonation of delay were proved, delay could not be condoned‑‑Appellate Court, in circumstances, was not justified to condone long delay in filing appeal without proper inquiry and evidence‑‑‑High Court set aside the judgment of Appellate Court in revision and remanded case to decide afresh according to law.
M. Shamshir Iqbal Chaughtai for Petitioner.
Nemo for Respondent.
Date of hearing: 16th June, 1999.
2000 M L D 1296
[Lahore]
Before Syed Jamshed Ali, J
Mst. AZIZ BEGUM‑‑‑Petitioner
Versus
MUHAMMAD NAZIR and others‑‑‑Respondents
Civil Revision No. 340 of 1982, decided on 15th November, 1999
Specific Relief Act (I of 1877)‑‑‑--
‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for declaration‑‑Revisional jurisdiction, exercise of‑‑‑Sale of suit land by vendor in favour of defendant had been disputed by plaintiff, a real brother of original owner of land in dispute contending that vendor was not son of original owner of suit land as original owner had died without leaving any wife or children‑‑Plaintiff in his suit had sought cancellation of sale‑deed executed in favour of defendant contending that vendor of suit land not being son of original owner was not entitled to inherit suit land and that sale made by him in favour of defendant, was illegal and inoperative qua rights of plaintiff‑‑‑Courts below on basis of evidence adduced by parties decided question of relationship and concurrently decreed suit of plaintiff‑‑‑Concurrent findings of fact of two Courts below not suffering from any jurisdictional defect and non‑reading and misreading of evidence on record, could not be interfered with in revisional jurisdiction of High Court.
Muhammad Aslam Khan for Petitioner.
Zafar Iqbal Bajwa for Respondents.
Date of hearing: 29th October, 1999.
2000 M L D 1301
[Lahore]
Before Ch. Ijaz Ahmad, J
Shahzada JAWAID‑‑‑Petitioner
Versus
Mst. SADIA RAUF and another‑‑‑Respondents
Writ Petition No. 8726 of 1999, decided on 6th March, 2000.
(a) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑--
‑‑‑‑S. 5‑‑‑Dowry articles, recovery of‑‑‑Dowry articles were not in unlawful possession of husband until wife demanded the same and husband refused to return them.
Jannat Bibi v. Abdul Karim 1981 CLC 52 distinguished.
Jamshed Hussain Rana v. Rehana Kausar 1993 CLC 2084; Iqbal Sajjad v. Syed Farzand Ali and 2 others 1998 MLD 379; Ma Mary v. Ma Hla Win AIR 1925 Rang. 149; Gure Venkundaidu v. Appanna AIR 1951 Mad. 704 and Jamshed Hussain Rana v. Rehana Kausar 1993 CLC 2084 ref.
(b) Limitation Act (IX of 1908)‑‑‑--
‑‑‑‑--Art. 120‑‑‑Suit for which no period of limitation is provided elsewhere in the Schedule to the Limitation Act, 1908‑‑‑Period for such suit is six years under Art. 120 of Limitation Act, 1908.
Sartaj-un‑Nisa and 8 others v. Muhammad Ishaque and another 1992 MLD 1166 ref.
(c) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑--
‑‑‑‑Ss. 5 & 17‑‑‑Procedure adopted by Family Court‑‑‑Scope‑‑‑Finding of Lower Appellate Court after proper appreciation of evidence on record‑‑Validity‑‑‑Family Court was competent to follow its own procedure‑‑‑Lower Appellate Court was justified to give its own finding after proper appreciation of evidence on record.
Pramatha Nath Chaudhry v. Kamir Mondal and others PLD 1965 SC 434; Manzoor‑ul‑Haq and 3 others v. Mst. Kaniz Begum 1993 CLC 109 and Ghulam Murtaza's case 1999 CLC 81 ref.
(d) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑--
‑‑‑‑S. 5‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Recovery of dowry articles‑‑‑Refusal to take special oath‑‑Effect‑‑‑Suit filed by wife was dismissed by Trial Court‑‑‑Both the parties before Lower Appellate Court agreed to the decision of the case on special oath on the Holy Qur'an‑‑‑Wife took the oath but the husband did not come forward for the oath and backed out from the agreement‑‑‑Lower Appellate Court decreed the suit of the wife on the basis of the oath ‑‑‑Validity‑‑Husband having not come to the Court with clean hands, High Court refused to exercise discretion. in his favour.
Nawabzada Ronaq Ali's case PLD 1973 SC 236 and Rana Muhammad Arshad's case 1998 SCMR 1462 ref.
Tehseen Irfan for Petitioner.
Shoab Saeed for Respondents.
2000 M L D 1314
[Lahore]
Before Dr. Munir Ahmad Mughal, J
MUNIR AHMAD and 9 others‑‑‑Applicants
Versus
PROVINCE OF PUNJAB through District Collector/
Deputy Commissioner, Gujrat and 2 others‑‑‑Respondents
Civil Miscellaneous No. 169‑C of 2000 in Civil Revision No. 833 of 1999 decided on 16th March, 2000.
Civil Procedure Code (V of 1908)‑‑‑--
‑‑‑‑O.XLI, R.27‑‑‑Additional evidence, production of‑‑‑Filling in lacuna in evidence‑‑‑Application for producing certified copies of certain revenue documents, was filed in High Court when revision petition was pending adjudication‑‑‑Suit was filed some 24 years ago and two rounds of litigation had already taken place‑‑‑Documents in question were public documents, certified copies of which could be easily obtained by the applicant and it was not possible that the documents were not in the knowledge of the applicant as the whole file of Revenue Record had already been exhibited ‑‑‑Effect‑‑Application for producing of document was an attempt to fill in lacuna in the evidence of the applicant which was not justified‑‑‑Application was dismissed in circumstances.
1999 SCMR 951; 1999 MLD 3018; 1999 YLR‑930; 1997 SCMR 1849; Parsotim Thakur and others v. Lal Mohar Thakur and others AIR 1931 PC 143; Indrajit Pratab Sahi v. Amar Singh AIR 1923 PC 128 and Hadayatullah v. Habibullah 1982 SCMR 256 ref.
Khan Younas Khan for Applicants (in C.M. No. 169‑C of 2000).
Sh. Naveed Shahryar for Respondents (in C.M. No. 169‑C of 2000).
2000 M L D 1324
[Lahore]
Before Ch. Ijaz Ahmad, J
KHUSHI MUHAMMAD ‑‑‑Petitioner
Versus
SAFDAR ALI and 7 others‑‑‑Respondents
Civil Revision No. 2443/D of 1986, heard on 2nd November, 1999.
(a) Transfer of Property Act (IV of 1882)‑‑‑--
‑‑‑‑S.54‑‑‑Sale of immovable property by attorney in favour of his minor son‑‑-Predecessor of petitioner was an old man who executed power of attorney regarding suit property in favour of respondent, who was his maternal nephew‑‑‑Respondent sold the property to his minor son, immediately after execution of the power of attorney‑‑‑Trial Court dismissed the suit wherein the sale was challenged while Lower Appellate Court reversed the findings and decreed the suit‑‑‑Validity‑‑‑Original power of attorney was not produced in evidence before Trial Court‑‑‑Respondent failed to prove that consideration amount was ever paid‑‑‑Where the sale had not taken place with the consent of the principal, such sale was not valid‑‑Sale in question was illegal, and assumed sham transaction, could not be upheld being void and nullity in the eyes of law‑‑‑Judgment and decree of Lower Appellate Court was set aside.
(b) Transfer of Property Act (IV of 1882)‑‑‑--
‑‑‑‑S. 54‑‑‑Sale‑‑‑Payment of consideration amount not proved‑‑‑Effect‑‑‑Suit property was sold by attorney to his minor son‑‑‑Where no evidence was brought on record that consideration amount was ever paid to the principal, the sale was sham transaction hence void.
Sardar Ahmad Khan's case PLD 1950 Pesh. 45 and PLD 1990 SC 1 ref.
(c) Power of attorney‑‑‑-
‑‑‑‑ Power of attorney has to be construed strictly and in cases of doubt and ambiguity it should be construed for the benefit of executant.
Malik Riaz Ahmad's case 1992 SCMR 1488 ref.
(d) Power of Attorney Act (VII of 1882)‑‑‑--
‑‑‑‑S. 3‑‑‑Transaction of sale on basis of alleged power of attorney‑‑‑Failure to produce original power of attorney in evidence‑‑‑Effect‑‑‑Where original power of attorney was not produced, the same would give rise to presumption that if .it was produced the same would have gone against the version of the party relying on that power of attorney.
Abdul Hameed'c case 1996 MLD 1123; Mrs. Parveen's case PLD 1994 Kar. 348 and 1995 CLC 896 ref.
Mian Subah Sadiq Klasoon for Petitioner.
Amjad Pervaiz Malik and C.M. Latif Rawn for Respondents
Date of hearing: 2nd November, 1999
2000 M L D 1331
[Lahore]
Before Ghulam Mahmood Qureshi, J
Mir ZAMAN KHAN TAHIR, ISLAM EXPORT
TAX CONTRACTOR‑‑‑Petitioner
Versus
ADMINISTRATOR, ZILA COUNCIL, KHANEWAL
and others‑‑‑Respondents
Writ Petition No. 10107, 9383 and 9385 of 1997, decided on 9th February, 1998.
Punjab Local Councils (Lease) Rules, 1990‑‑‑--
‑‑‑‑R. 7 (5)‑‑‑Punjab Goods Exit Tax Rules, 1990, Rr. 14 & 19‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Grant of lease to collect Goods Exit Tax for Zila Council‑‑‑Validity‑‑‑Agreement containing terms and conditions of lease was executed between the parties and work order was issued to the contractor to collect tax accordingly‑‑Dispute arose as to terms and conditions of lease agreement‑‑‑Contractor approached the Commissioner for arbitration‑‑‑Pending the arbitration proceedings contractor filed Constitutional petition which was disposed of by High Court at his request in view of pendency of arbitration before the Commissioner‑‑‑Commissioner announced award and contractor in compliance of said award paid the instalments of ‑agreed amount‑‑Contractor, in view of such conduct was estopped to file Constitutional petition again‑‑‑No element of coercion or threat was found as agreement arrived at between the parties was executed with free consent of contractor‑‑Terms and conditions of agreement being self‑explanatory, contractor could not be allowed to blow hot and cold at the same time‑‑‑Having withdrawn his earlier Constitutional petition, and accepted arbitration clause in agreement of lease and complied with the award, Constitutional petition by contractor was not maintainable on principles of res judicata‑‑‑If at all contractor was aggrieved by execution of agreement he could agitate that matter before competent and proper forum‑‑‑Parties were bound by agreement and unless remedy provided under agreement as well as under the statute was exhausted, parties could not be allowed to agitate same in Constitutional petition‑‑Contractual obligations could not be enforced by invoking Constitutional jurisdiction of High Court.
1997 CLC 474; 1997 CLC‑ 673; PLD 1981 SC 553; PLD 1997 Lah. 456; 1991 MLD 2191; 1992 CLC 335; 1992 CLC 519; 1989 MLD 1999; 1994 SCMR 1484; 1990 CLC 1639; 1997 CLC 747; Shameer v. Board of ‑Revenue and others PLD 1981 SC' 604 and Pakistan Mineral Development Corporation Ltd. v. Pakistan Water and Power Development Authority and others PLD 1986 Quetta 181 ref.
Dr. Moh‑ud‑Din Qazi, M. Iqbal Abid and Ali Ahmad Awan for Petitioner.
Mian Muhammad Iqbal, Ch. Shah Din Muhammad and Syed Ali Hussain for Respondents.
Date of hearing: 15th January, 1998.
2000 M L D 1345
[Lahore]
Before Syed Najam‑ul‑Hassan Kazmi, J
MUHAMMAD HANIF‑‑‑Appellant
Versus
Ch. SAMI ULLAH‑‑‑Respondent
Second Appeal from Order No. 205 of 1995, decided on 13th December, 1999.
(a) Limitation Act (IX of 1908)‑‑‑--
‑‑‑‑S.5‑‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.15‑‑‑Appeal‑‑‑Limitation‑‑‑Delay, condonation of‑‑‑Appeal was time barred, and appellant had failed to explain delay of each and every day‑‑Delay Could not be condoned in circumstances.
Ali Muhammad and another v. Fazal Hussain and others 1993 SCMR 1239 ref.
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑--
‑‑‑‑Ss. 13 (2) (1), 13‑A & 13 (6)‑‑‑Default in payment of rent‑‑‑Notice of change of ownership not served on tenant‑‑‑Effect‑‑‑Striking off defence‑‑‑Tenant who failed to comply with tentative rent order passed by Rent Controller had alleged that notice under S.13‑A, West Pakistan Urban Rent Restriction Ordinance, 1959 about change of ownership was not served on him‑‑‑Such objection of tenant could not affect power of Rent Controller to pass order for deposit of rent nor it could be defence for non‑compliance of order under S.13(6) of West Pakistan Urban Rent Restriction Ordinance. 1959‑‑‑Ejectment petition itself was a notice‑‑‑Objection of notice could be relevant on merit only when the issue of default was to be considered and had nothing to do with passing of order for deposit of rent under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959‑‑‑Once Rent Controller found that tenancy was admitted and jurisdiction of Rent Controller was not disputed, Rent Controller was competent to pass order for deposit of arrears of rent and future rent‑‑‑Tenant was duty bound to make necessary compliance of tentative rent order to avoid adverse consequences.
(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑
‑‑‑‑S.13(6)‑‑‑Tentative rent order‑‑‑Non‑compliance‑‑‑Striking off defence of tenant‑‑‑Rent Controller, in case of dispute over rate of rent, could tentatively determine monthly rate of rent and amount of arrears and could direct tenant to deposit the same‑‑‑Tenant, even it not satisfied with calculation or with rate of rent so determined, was duty bound to make deposit to avoid striking off defence‑‑‑Tenant, at best could ask Rent Controller to decline withdrawal of amount by landlord, but could not withhold deposit of arrears on any flimsy plea‑‑‑Having failed to comply with order without showing sufficient cause tenant had rendered himself liable to ejectment‑‑‑Defence of tenant, in circumstances, was rightly struck off.
Ch. Muhammad Arshad Me hloo for Appellant. Sh. Zia Ullah for Respondent.
Dates of hearing: 19th, 10th and 13th December, 1999.
2000 M L D 1349
[Lahore]
Before Ghulam Mahmood Qureshi, J
AMIR‑UD‑DIN‑‑‑Petitioner
Versus
MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB, LAHORE
and another‑‑‑Respondents
Writ Petitions Nos. 767 of 1998 and 4550 of 1999, heard on 30th June, 1999.
West Pakistan Land Revenue Act (XVII of 1967)‑‑‑
‑‑‑‑S. 37‑‑‑West Pakistan Land Revenue Rules, 1968, Rr. 17, 18 & 19‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Appointment of Lambardar‑‑‑Rule of primongeniture‑‑‑Not mandatory but directory in nature‑‑‑Nature and applicability of‑‑‑Post of Lambardar having fallen vacant after death of the Lambardar, different persons including son of deceased Lambardar applied for the post‑‑‑Collector after thoroughly examining merits and demerits of candidates, appointed petitioner as Lambardar and order of Collector was affirmed by Commissioner, but Member, 'Board of Revenue set ‑aside order of Collector and Commissioner and instead appointed the son of deceased Lambardar on ground that rule of primogeniture was applicable to him‑‑‑Validity‑‑‑Son of deceased Lambardar not only had sold his entire property but also he having permanently shifted his abode to other District did not reside in the area concerned‑‑‑Son of deceased Lambardar being an absentee was not a proper person to discharge his duties as Lambardar‑‑‑Collector by appointing petitioner as Lambardar on basis of his qualities and merits, had not discarded rule of primogeniture which rule otherwise was not mandatory, but was directory in nature‑‑‑High Court, in exercise of its Constitutional jurisdiction, set aside the order passed by Member, Board of Revenue canceling appointment of the petitioner in circumstances.
Ghulam Hussain v. Ghulam Muhammad and another 1976 SCMR 75; N. Balakrishna Hegde v. K. Shankara Hedge and others AIR 1962 Mys. 233; Gazula Dasoralha Rama Rao v. State of Andhra Pradesh AIR 1961 SC 464 and PLD 1999 SC 484 ref.
Ch. Muhammad Hussain Jahania for Petitioner.
Khadim Nadeem Malik, A.A.G. for Respondent No. l.
Chaudhry Abdul Sattar Goraya for Respondent No.2.
Date of heating: 30th June, 1999.
2000 M L D 1358
[Lahore]
Before Bashir A. Mujahid, J
NAZIR AHMAD and others‑‑‑Appellants
Versus
THE STATE ‑‑Respondent
Criminal Appeal No. 1245 of 1998, decided on 10th June, 1999.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302/324/337‑A/337‑F/148/149‑‑‑Appreciation of evidence‑‑Occurrence, place of occurrence and motive was not disputed‑‑‑Presence of prosecution witnesses at the spot could not be doubted when accused party had admitted presence of said witnesses‑‑‑Prosecution witnesses had fully supported prosecution story and had attributed specific role to four accused for causing injuries to deceased with hatchet and spears‑‑‑All accused had led to recovery of respective weapons of offence‑‑‑Ocular account had been fully supported by medical evidence and complainant party was not proved to be aggressor‑‑‑Accused, in circumstances, were rightly convicted and sentenced‑‑‑Case of co‑accused was distinguishable from accused and co-accused were alleged to be empty‑handed at the spot and no. active participation in occurrence had been attributed to them except Lalkara which was not considered sufficient for recording/sustaining their conviction especially when no motive was attributed to them‑‑‑Other co‑accused who were stated to be armed with Dandas, had not caused grievous injury on person of deceased or prosecution witnesses and might have arrived at venue of occurrence after hearing about quarrel without any premeditation and had no common intention with main accused for murder of the deceased‑‑Conviction of co‑accused under 5.302/148/149, P:P.C. was not sustainable, but as their presence, participation and causing simple injuries to prosecution witnesses had been admitted, their conviction under S. 324, P.P.C. was maintained.
Q.M. Saleem for Appellant.
A.H. Masood for the State.
Date of hearing: 7th June, 1999.
2000 M L D 1427
[Lahore]
Before Raja Muhammad Sabir, J
NOOR DIN and others‑‑‑Petitioners
Versus
KHUSHI MUHAMMAD and another‑‑‑Respondents
Criminal Revision No.896‑D of 1998, decided on 14th May, 1999.
Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S.9‑‑‑Transfer of Property Act (IV of 1882), S. 54‑‑‑Qanun‑e‑Shahadat Order (10 of 1884), Art.17‑‑‑Suit for possession‑‑‑House in dispute was purchased by plaintiff from defendant through delivery of possession after paying sale price thereof to the defendant‑‑‑Plaintiff rented out portion of said house‑‑‑Tenant of said premises having stopped payment of rent, plaintiff asked tenant to vacate house, but tenant in collusion with defendant delivered possession of house to defendant instead of the plaintiff‑‑‑Plaintiff filed suit for recovery of possession of house and recovery of amount as mesne profit as compensation of articles of plaintiff misappropriated by defendant‑‑‑Suit was resisted by defendant alleging that plaintiff could not prove sale of house in his favour as only one marginal witness of sale document was produced‑‑‑Validity‑‑‑Plaintiff by producing evidence on record had fully proved that sale in his favour was valid and that possession was delivered to him by defendant/vendor‑‑‑Defendant himself had not appeared in Court, but he was represented by his son‑‑‑Document of sale of house having been executed prior to enforcement of Qanun‑e‑Shahdat, 1984, non‑production of second marginal witness was ,immaterial‑‑‑Suit, in circumstances, was rightly decreed by Courts below‑‑‑Findings of Courts below based on true appreciation of evidence, could not be interfered with.
Talat Farooq Sheikh for Petitioners.
N.A. Butt for Respondents.
Date of hearing: 14th May, 1999.
2000 M L D 1443
[Lahore], Before M. Naeemullah Khan Sherwani and Bashir A. Mujahid, JJ
MUHAMMAD AKRAM alias KALA‑‑‑Appellant
Versus
THE STATE‑‑‑Respondent
Criminal Appeal No. 209 and Murder Reference No. 272 of 1996, heard on 3rd February, 2000.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Day time occurrence‑‑‑Presence of eye‑witnesses at the spot was quite natural and probable and there was no question of mistaken identity‑‑‑Statement of eye‑witnesses deserved to be believed in their entirety qua accused‑‑‑Accused and his brother, who could not be tried because of his death, were solely responsible for Qatl‑i‑Amd of deceased and acquitted co‑accused had absolutely no reason to join hand with them as he had no personal axe to grind‑‑‑Mere fact that witnesses happened to be sons of deceased, could not constitute a sufficient ground for enbloc rejection of their testimony especially when their presence at the place of occurrence at the relevant time could not be disputed‑‑‑Statements of witnesses tallied with each other on all material aspects of the matter and did not suffer from any infirmity, but rang true and were wholly reliable‑‑Accused having failed to point out a single extenuating circumstance, he was rightly sentenced to death‑‑‑Sentence of fine, however, was set aside.
Ch. Pervaiz Aftab for Appellant.
Sh. Muhammad Rahim for the State.
Ch. Faqir Muhammad for the Complainant.
Date of hearing: 3rd February, 2000.
2000 M L D 1459
[Lahore]
Before Ch. Ijaz Ahmad, J
MUHAMMAD ASLAM and 8 others‑‑‑Petitioners
Versus
REHMAT ALI and 8 others‑‑‑Respondents
Civil Revision No. 907 of 1996, heard on 20th March, 2000.
(a) Registration Act (XVI of 1908)‑‑‑
‑‑‑‑Ss. 17 & 49‑‑‑Registered document‑‑‑Value and status‑‑‑Registered document has sanctity attached to it and stronger evidence is required to cast aspersion on its genuineness.
Mirza Muhammad Sharif v. Nawab Bibi 1993 SCMR 462 ref.
(b) Transfer of Property Act (IV of 1882)‑‑‑
‑‑‑‑S.54‑‑‑Registration Act (XVI of 1908), Ss. 17 & 49‑‑‑Registered sale-deed‑‑‑Principle of approbate and reproabate‑‑‑Applicability‑‑‑Where there was no evidence regarding sale‑deed being forged and fictitious, the party assailing the validity of the deed was estopped by way of his conduct to take any exception qua the registered sale‑deed on the principle of approbate and reprobate.
Ghulam Rasool's case PLD 1971 SC 376 ref.
(c) Transfer of Property Act (IV of 1882)‑‑‑
‑‑‑‑S.41‑‑‑Transfer by ostensible owner‑‑‑Vendor of disputed property was shareholder in joint property and sold portion of that property to the vendee by registered sale‑deed‑‑‑Other owners of the property filed suit against the vendor and the vendee qua suit property‑‑‑Vendor filed a consenting statement whereas the vendee contested the suit‑‑‑Contention was that vendee could not get benefit of S.41, Transfer of Property Act, 1882‑‑‑Validity‑‑Vendor made no efforts during pendency of litigation to annul acts performed in pursuance of sale‑deed executed by him‑‑‑Lower .Appellate Court was justified in giving benefit of S.41, Transfer of Property Act, 1882 to the vendee in circumstances.
PLJ 1984 Pesh. 278 ref.
(d) Words and phrases
‑‑‑‑"Collusion"‑‑‑Meaning‑‑‑In judicial proceedings expression "collusion" means a secret arrangement between two parties that one should institute a suit against the other in order to obtain decision of Judicial Tribunal for some sinister purpose.
Iqbal v. Jennan Bibi 1991 CLC 553; M.A. Khan v. S. Khan 1986 CLC 2655; Zafrullah v. Civil Judge, Hafizabad PLD 1984 Lah. 396 and Rauf v. A. R. Khan PLD 1982 Pesh. 172 ref.
(e) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S. 115‑‑‑Revision‑‑‑Judgments at variance‑‑‑Judgment and decree of Trial Court was set aside by Lower Appellate Court‑‑‑Contention by petitioner was that while deciding the appeal, Lower Appellate Court did not advert to the reasoning of Trial Court‑‑‑Validity‑‑‑Lower Appellate Court possessed jurisdiction to come to its own conclusion on the basis of evidence, adduced before Trial Court by the parties and resultantly could competently reverse the findings of Trial Court on question of fact involved in issue‑‑‑Finding on question of fact or law, howsoever, erroneous might be, recorded by the Court of competent jurisdiction the same could not be interfered with by High Court in exercise of its revisional jurisdiction under S.115, C.P.C., unless such findings suffered from jurisdictional defect, illegality or material irregularity‑‑‑Judgment and decree of Lower Appellate Court was competently passed and called for no interference‑‑‑Revision was dismissed accordingly.
N.S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras PLD 1949 PC 26 rel. .
Ch. Muhammad Abdullah for Petitioner. Sh. Abdul Aziz for Respondent No. 2.
Muhammad Sharif Butt, Legal Representative for Respondents Nos. 8 and 9.
Date of hearing: 20th March, 2000.
2000 M L D 1498
[Lahore]
Before Syed Zahid Hussain, J
CHIEF ADMINISTRATOR OF AUQAF‑‑‑Appellant
Versus
Syed GHULAM MOHY‑UD‑DIN and 4 others‑‑‑Respondents
First Appeal from Order No. 89 of 1995, heard on 31st March, 2000.
(a) Limitation Act (IX of 1908)‑‑‑
‑‑‑‑S.3‑‑‑Limitation‑‑‑Abandoning of issue of limitation‑‑‑Effect‑‑‑Once issue of limitation is abandoned by party concerned, same cannot be agitated later on.
Sajjad Hussain v. Musarat Hussain Shah and others 1989 SCMR 1826 ref.
(b) Punjab Waqf Properties Ordinance (IV of 1979)‑‑‑
‑‑‑‑S.7‑‑‑Issuance of notification under S.7, Punjab Waqf Properties Ordinance, 1979‑‑‑Pre‑conditions‑‑‑Administration, control, management and maintenance of the property which was being assumed by Chief Administrator, Auqaf had to be a Waqf property as defined in S.2(e) of Punjab Waqf Properties Ordinance, 1979.
(c) Punjab Waqf Properties Ordinance (IV of 1979)‑‑
‑‑‑‑S.2(e)‑--‑Creating ‑a valid Waqf by non‑Muslim‑‑‑Validity‑‑‑Not permissible to ignore the legislative definition of and assign extended meaning to term "Waqf property"‑‑‑Dedication by a non‑Muslim could not be treated as "valid Waqf".
Chief Administrator of Auqaf, Punjab, Lahore v. Koura alias Karam Ilahi and another PLD 1991. SC 596 ref.
(d) Punjab Waqf Properties Ordinance (IV of 1979)‑‑‑
‑‑‑ Ss. 7, 11 & 2(e)‑‑‑Appeal‑‑‑Notification by Chief Administrator Auqaf‑--Such notification was assailed before the Trial Court which set aside the notification on the ground that the disputed property was not a Waqf property as the same was gifted by a non‑Muslim‑‑‑Validity‑‑‑Preponderance of material on record did not establish that the property was a Waqf property for the control of which the notification could be made‑‑Revenue Record was inconsistent and no safe reliance could be placed on the same‑‑‑Consideration of the depositions of the witnesses whose statements had come on record and the definition of Waqf property embodied in S.2(e) of Punjab Waqf Properties Ordinance, 1979 made it clear that the conclusion drawn by the Trial Court could not be regarded as illegal so as to warrant interference by High Court‑‑‑Appeal was dismissed accordingly
Elahi Baksh v. Chief Administrator, Waqf Property 1982 SCMR 160; Mian Ahmad Ali v. The Rehabilitation Authority through The Deputy Rehabilitation Commissioner, Sargodha PLD 1964 SC 229 and Chief Administrator Auqaf, Lahore v. Hassan Muhammad and 9 others 1988 SCMR 1269 ref.
Muhammad Arif Raja for Appellant.
C.M. Sarwar for Respondent.
Dates of hearing: 30th and 31st March, 2000.
2000 M L D 1530
[Lahore]
Before Malik Muhammad Qayyum and Syed Zahid Hussain, JJ
MUHAMMAD SABIR and 7 others‑‑‑Petitioners
Versus
Mst. SHAHEENA SHAMAS‑UL‑HASAN and another‑‑‑Respondents
Writ Petition No.8703 of 1980, heard on 4th April, 2000.
(a) Interpretation of statutes‑‑‑
‑‑Statutes enacted with intention to take away property of subject without giving compensation for his loss‑‑‑Interpretation‑‑‑Rule of interpretation of such statute was that such intention was not to be imputed to Legislature unless that intention was expressed in unequivocal terms‑‑‑Protection of property was generally regarded as one of the fundamental values of a liberal society.
Craise on Statutory Interpretation, Third Edn., p.178 ref.
(b) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art.199‑‑‑Land Reforms Regulation, 1972 (MLR 115)‑‑‑‑Constitutional petition‑‑‑Land in excess of permissible limits‑‑‑Filing of declaration‑‑Inclusion of sold land: in such declaration‑‑‑Member, Federal Land Commission was of the view that a declarant had unfettered choice and might include even the land sold to a bona fide purchaser‑‑‑Validity‑‑‑Transaction of sale in the present case was not denied by the respondent/declarant but an attempt was made to deprive the petitioners/vendees of the land by including alienated land into the declaration form, thus, rights of petitioners/vendees were sought to be impaired and nullified‑‑‑Validity‑‑‑Such act was clearly contrary to intendment, object and purpose of law‑‑‑Deputy Land Commissioner had rightly directed the respondent/declarant to file fresh form by excluding the area already sold in favour of the petitioners/vendees‑‑Order of the Member, Federal Land Commission was without lawful authority and of no legal effect in circumstances.
Mst. Raj Bibi and 4 others v. Additional Chief Land Commissioner, Punjab, Lahore and 2 others PLD 1975 Lah. 408; Mst. Karam Illahi v. State PLD 1974 Rev. 17; Mat. Zuhran Khatoon and 8 others v. The Member, Federal Land Commission, Rawalpindi 1985 SCMR 312 and Mian Muhammad Mumtaz v. Land Commissioner, Punjab through Additional Chief Land Commissioner, Lahore and others 1990 ALD 513(2) ref.
Ryassat Ali for Petitioners.
Nemo for Respondents.
Date of hearing: 4th April, 2000.
2000 M L D 1537
[Lahore]
Before Syed Jamshed Ali and Mian Muhammad Najum-uz-Zaman, JJ
Messrs GULF PACIFIC FERTILIZER, CLAIFORNIA, U.S.A. through Attorney---Appellant
Versus
Messrs ALI AKBAR ENTERPRISES and 2 others---Respondents
Writ Petition No.23376 of 1999 now Regular First Appeal No.24 of 2000, heard on 21st March, 2000.
(a) Arbitration Act (X of 1940)---
----S. 34---Civil Procedure Code (V of, 1908), O.VII, R.11---Plaint, rejection of---Contract containing arbitration clause---Effect---Plaint was rejected by Trial Court on the ground that contract between the parties contained arbitration clause---Validity---Effect , of arbitration clause in an agreement was that the defendant could claim stay of proceedings in tile suit under S.34, Arbitration Act, 1940---Plaint was wrongly rejected by the Trial Court in circumstances.
(b) Civil Procedure Code (V of 1908)---
----S.107, O. XLI, R.33 & O. VII, R.11---Powers of Appellate Court--Substituting a reason given by Trial Court for rejection of plaint with another reason by Appellate Court---Validity---Appeal is continuation of the suit and under S.107. C.P.C. the Court of Appeal has all powers which are vested in the Trial Court---Such powers of the Appellate Court are adequately supplemented by the provisions of O.XLI, R.33, C.P.C.---Appellate Court, thus, is competent to substitute a reason of rejection of plaint accordingly.
Vithoba Yadeo v. Suryobhan and another AIR 1924 Nag. 80 ref.
(c) Civil Procedure Code (V of 1908)---
----O. VII, R.11---Plaint, rejection of---Suit for damages was rejected under O.VII, R.11, C.P.C. by Trial Court---Validity---Plaintiff had relied on a number of documents, interpretation of Which, would be required in the light of evidence produced on record---Where the plaintiff had alleged a concluded contract and its breach by defendant, the same could not be determined summarily, 'without recording of evidence---Plaintiff was entitled to an opportunity to prove his case in circumstances.
Mst. Iqbal Begum v. Farooq Inayat and others PLD 1993 Lah. 183 ref.
(d) Specific Relief Act (I of 1877)---
----Ss.21(a) & 56(f)---Permanent injunction, grant of---Agreement for sale of goods---Passing of injunctive order---Scope---Where the agreement could not be specifically enforced, no injunctive order could be passed---Suit for permanent injunction was not maintainable in circumstances.
Ahmed Awais for Appellant.
Wasi Zafar and Zahid Hamid for Respondent No. l.
Date of hearing: 21st March, 2000.
2000 M L D 1564
[Lahore]
Before Nasim Sikandar, J
STANDARD INSURANCE COMPANY LTD., MULTAN through Manager‑‑‑Appellant
Versus
FAZAL COTTON INDUSTRY and others‑‑‑Respondents.
First Appeal from Order No.& of 1994, decided on 18th February, 2000.
(a) Jurisdiction‑‑‑
‑‑‑‑ Territorial jurisdiction of Court‑‑‑‑Scope‑‑‑Ouster of jurisdiction is exception while territorial jurisdiction of a Court under law is a rule which may revitalize itself by subsequent conduct of the parties‑‑‑Ouster of jurisdiction is available to parties against the general law of the land and is conditional with certain situations recognised at law‑‑‑Ouster clause in an agreement is neither permanent nor universal which can change with the changing situation and relations between the parties.
(b) Arbitration Act (X of 1940)‑‑
S.14‑‑‑Award‑‑‑Objection to‑‑‑Principle of audi alteram partem Applicability‑‑‑Objection raised to the award was that the arbitrator did riot allow adequate opportunity to the petitioner‑‑‑Validity‑‑‑Such allegation was vague and showed absence of a specific challenge to a specific action of the arbitrator taken during the proceedings‑‑‑Where no such complaint was either made before the arbitrator, nor was brought to the notice of Trial Court during pendency of arbitration proceedings, the objection was found to be vague and was overruled in circumstances.
(c) Arbitration Act (X of 1940)‑‑‑
‑‑‑‑S.14‑‑‑Award, filing of‑‑‑Objections against award‑‑‑Extension of time for filing of objection‑‑‑Scope‑‑‑Where by way of interim order, Trial Court had once directed the parties to file objections till a particular date, the same would not by itself extend the statutory period of 30 days for filing of the objections accordingly.
(d) Arbitration Act (X of 1940)‑‑‑
‑‑‑‑Ss. 8 & 39‑‑‑Award, filing of‑‑‑Appeal‑‑‑Failure to frame issues on objections‑‑‑Arbitrator filed the award in Trial Court, no objections were filed in the Court within the statutory period‑‑‑Objections filed after the due date were dismissed by the Trial Court and the award was made rule of the Court‑‑‑Contention raised by appellant was that Trial Court had rejected the same without framing of issues on the objections‑‑‑Validity‑‑‑Trial Court did not frame the issues for the reasons that firstly the objections were filed beyond limitation and there was no question of framing of issues on factual controversies, secondly, the objection regarding the jurisdiction of Trial Court was not relevant‑‑‑Where no mentionable proposition of fact or of law was affirmed by the appellant which could give rise to an issue, order of Trial Court did not warrant interference on any account‑‑‑Neither the alleged misconduct qua the proceedings or the award nor lack of proper opportunity having ever been alleged in clear terms could justify framing of issues in the , facts of the , case‑‑‑Appeal was dismissed in circumstances.
Haji Soomar Hajji Hajjan v. Muhammad Amin Muhammad Bashir 1981 SCMR 129; Messrs Corporation Ltd. v. Government of Pakistan through Director‑General of Defence. Ministry of Defence, Karachi PLD 1994 Kar. 127; Mst. Safia Bibi v. Mst. Aisha Bibi 1982 SCMR 494; Ashfaq Ali Qureshi v. Municipal Corporation, Multan 1985 SCMR 597; Province of West Pakistan and others v. Mian Abdul Hamid & Co. 1985 CLC 1170: Akhtar Trading Co. v. Food Department and others 1991 CLC 258; Messrs Naseem Construction Co. v. Province of Sindh through Secretary to Government of Sindh, Communication and Works Department, Karachi and 4 others 1991 CLC 1081; Province of Punjab through Collector. D.G. Khan and others v. Messrs Ghulam Mustafa Khan and others 1987 SCMR 1904; WAPDA and another v. Messrs Khanzada Muhammad Abdul Haque Khan Khattak & Company PLD 1990 SC 359; Chief Engineer, Building Department v. Messrs Pakistan National Construction 1988 SCMR 723 Trustees of the Port of Karachi v. Messrs Iftikhar 1993 CLC 1491; Messrs Kadir Motors (Regd.). Rawalpindi v. Messrs National Motors Ltd., Karachi and 3 others 1992 SCMR 1174; Sh. Din Muhammad v. Jan Muhammad and another PLD 1971 Quetta 30; . D. G. Khan Cement Company Limited v. Haydari Construction Company Limited NLR 1990 Civil 132; Pakistan through General Manager, Pakistan Railway v. Messrs Q.M.R. Expert Consultants PLD 1990 SC 800 and Mst. Jannat Bibi v. Sher Muhammad and others 1998 SCMR 1696 ref.
Mian Shamas‑ul‑Haq Ansari for Appellant.
Malik Muhammad Rafiq Rijwana for Respondent No. 1.
Nemo for Respondent No.2.
Date of hearing: 16th February, 2000.
2000 M L D 1581
[Lahore]
Before Dr. Munir Ahmad Mughal, J
MUHAMMAD ASLAM and another‑‑‑Petitioners
Versus
SENIOR CIVIL JUDGE, GUJRAT (MIAN NISAR HUSSAIN) and 2 others‑‑‑Respondents
Civil Revision No. 1732 of 1995, decided on 26th January, 2000.
(a) Transfer of Property Act (IV of 1882)‑‑‑
‑‑‑‑S.52‑‑‑Transfer of property during pendency of suit‑‑‑Doctrine of "lis pendens"‑‑‑Applicability‑‑‑Where the matter was pending in High Court when the disputed alienation took place, rule of lis pendens was fully applicable.
(b) Punjab Pre‑emption Act (I of 1913)‑‑‑
‑‑‑‑S.21‑‑‑Transfer of Property Act (IV of 1882), S.52‑‑Pre‑emption suit‑‑Doctrine of lis pendens‑‑‑Applicability‑‑‑Scope‑‑‑Suit for pre‑emption involves a right to specific immovable property and, therefore, is governed by the principle of lis pendens‑‑‑Said rule does not affect a sale taking place while right of pre‑emption of subsequent vendees is still subsisting‑‑Doctrine of lis pendens does not apply to a suit for pre‑emption in case where subsequent sale has taken place after the expiry of the period of limitation‑‑‑Active prosecution of a case must be deemed to be continued so long as the suit is pending in appeal‑‑‑Doctrine of lis pendens applies to a suit for pre‑emption accordingly.
(c) Transfer of Property Act (IV of 1882)‑‑‑
‑‑‑‑S.52‑‑‑Expression "proceedings" ‑‑‑Meaning and scope‑‑‑Word "proceedings," used in S.52 of Transfer of Property Act, 1882, means the continuous proceedings right from Trial Court to appeal or revision,, as the case may be, preferred within limitation.
(d) Words and phrases‑‑‑
‑‑‑‑"Displaced"‑‑‑Connotation.
Black's Law Dictionary and Chamber Concise Dictionary ref.
(e) Words and phrases‑‑‑
‑‑‑‑"Affected"‑‑‑Connotation.
Black's Law Dictionary and Chamber Concise Dictionary ref.
(f) Qanun‑e‑Shahadat (10 of 1984)‑‑‑
‑‑‑‑Arts. 87 & 89‑‑‑Public documents‑‑‑Attested copies‑‑ ‑Provisions of Qanun‑e‑Shahadat, 1984, with respect to certification of documents is mandatory and any document not certified in accordance therewith cannot be relied upon‑‑‑Such certified copy must contain note that it is true and correct copy of the original‑‑‑Mere signature of Naqal Koninda (copyist) and Tasdiq Koninda (testifier)'is not enough.
1991 CLC 1201 and PLD 1962 Lah. 492 ref.
(g) Qanun‑e‑Shahadat (10 of 1984)‑‑‑‑
‑‑‑‑Art.90‑‑‑Presumption as to genuineness of certified copies‑‑‑Maxim "Omnia praesumuntur rite esse acta"‑‑‑Applicability‑‑‑Provisions of Art.90 of Qanun‑e‑Shahadat, 1984, is based on the maxim and it applies only to certificate and other documents certified by the officers mentioned therein.
(h) Maxim‑‑‑
‑‑‑‑"Omnia praesumuntur rite esse acta"‑‑‑Meaning: all things are presumed to have been done rightly.
(i) Qanun‑e‑Shahadat (10 of 1984)‑‑‑
‑‑‑‑Art. 90‑‑‑"Tarjih al Bayyinat"‑‑‑Meaning and applicability‑‑‑Where both the parties make contradictory allegations of a positive nature in relation to the same matter and both are prepared to adduce proof, the question then arises whose proof is to be preferred or heard‑‑‑Preferring and hearing of proof of any one party is termed as "Tarjih al Bayyinat".
(j) Qanun‑e‑Shahadat (10 of 1984)‑‑‑
‑‑‑‑Art. 90‑‑‑"Istishab al Hal"‑‑‑Meaning and scope‑‑‑Term means presumption arising from the accompanying circumstances‑‑‑Evidence of the party whose allegation is supported by certain general presumption is to be preferred‑‑‑Such general presumption is called "Istishab al Hal.
(k) Punjab Pre‑emption Act (I of 1913)‑‑‑
‑‑‑‑S.21‑‑‑Board of Revenue (Punjab) Notification No.3448‑65‑3300‑LRIV, dated 15‑9‑1965‑‑‑Civil Procedure Code (V of 1908), S.115 ‑‑‑ Pre‑emption suit ‑‑‑Mangla Dam affectees‑‑‑Notification No.3448‑65/3300‑LRIV, dated 15‑9‑1965 by Board of Revenue‑‑‑Principle of lis pendens‑‑‑Applicability‑‑Vendees, according to certificates of Commissioner, Mangla Dam Affairs, were affectees of Mangla Dam, the notification of exemption was fully applicable in their case‑‑‑Any alienation of the suit property in favour of some other persons had no legal effect on such suit as at the relevant time the matter was sub judice before Supreme Court in civil review application‑‑Where the basis was without foundation, all further actions were also nullity in the eyes of law‑‑‑Revision was allowed in circumstances.
AIR 1949 PC 239; AIR 1953 SC 23; PLD 1964 Kar. 149; PLD 1975 SC 678; PLD 1983 SC 53; PLD 1983 SC 53; PLD 1987 SC 139 and 1990 MLD 213 ref.
(1) Words and phrases‑‑‑
‑‑"Istishab al Hal"‑--‑Meaning and scope‑‑‑Term means presumption arising from the accompanying circumstances‑‑‑Evidence of the party whose allegation is supported by certain general presumption is to be preferred‑‑Such general presumption is called "Istishab al Hal.
Dr. A. Basit for Petitioners.
Muhammad Inayatullah Cheema and Abdul Baseer Qureshi for Respondents.
Date of hearing: 8th December, 1999.
2000 M L D 1604
[Lahore]
Before Riaz Kayani and Khawaja Muhammad Sharif, JJ
MUHAMMAD ILYAS and smother‑‑‑Petitioners
Versus
THE STATE‑‑‑Respondent
Criminal Miscellaneous No. 1039‑B of 2000, decided on 29th March, 2000.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497‑‑‑Penal Code (XI.V of 1860), Ss. 302/324/337A(i) & 337‑F(i)/ 148/149‑‑‑Bail, grant of‑‑‑Allegation against both accused was that they were present at the place of occurrence armed with 222 bore rifle and kalashnikov respectively and in their presence two other accused had done to death the deceased and injured the prosecution witness‑‑‑Such situation was to be seen at the time of recording of evidence‑ ‑Medico‑legal report issued by the doctor had shown that injured had blunt weapon injuries, which was different to the injuries attributed to accused by prosecution‑‑‑Case of further enquiry having been made out, accused were entitled to bail.
Anwar‑ul‑Haq Pannu for Petitioners.
M. Arif Karim for the State.
M. Arif for the Complainant.
2000 M L D 1616
[Lahore].
Before Riaz Kayani and Khawaja Muhammad Sharif JJ
MUHAMMAD IRFAN and another‑‑‑Petitioners
Versus
THE STATE‑‑‑Respondent
Criminal Miscellaneous No.303‑B of 2000, decided on 21st February, 2000.
Criminal Procedure Code (V of 1898)‑
‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/324/34‑‑‑Bail, grant of‑‑‑One of the accused, who was allegedly armed with 8 MM rifle, was not attributed any injury either to the deceased or to injured prosecution witnesses‑‑‑Other accused was allegedly armed with hatchet, but no injury was caused with Sharpe‑edged weapon either on the person of deceased or to the injured‑‑Prosecution witnesses and the accused were also not attributed any specific injury‑‑‑Injuries on persons of both injured prosecution witnesses were simple in nature‑‑‑Case against accused person was covered by S.497(2), Cr.P.C. which required further inquiry into the guilt‑‑‑Bail was granted to accused
Ch. Anwar‑ul‑Haq Pannun for Petitioner.
M. Arif for the Complainant.
Kh. Shahzad Slaeem for the State.
2000 M L D 1625
[Lahore]
Before M. Naeemullah Khan Sherwani, J
MUHAMMAD ASHRAF‑‑‑Appellant
Versus
THE STATE‑‑‑Respondent
Criminal Appeal No.463 of 1997, decided on 9th July, 1999
Penal Code (XLV of 1860)‑‑‑‑
‑‑‑‑S.302/308‑‑‑Appreciation of evidence‑‑‑Presence of eye‑witnesses at place of occurrence was extremely doubtful‑‑‑Contradiction with regard to weapon of offence used in occurrence between evidence given by, complainant and post‑mortem report was found‑‑‑Animosity between accused and prosecution witness was proved as there had been a quarrel between them about money which the witness had received for business‑‑‑Statement of prosecution witness with regard to recovery of gun allegedly used in occurrence was contradictory to statement of Investigating Officer‑‑‑Such recovery evidence in view of glaring discrepancy was liable to be discarded‑‑‑Story of recording supplementary statement of complainant on the day of occurrence which was also shattered by statement of complainant himself, had no evidentiary value‑‑‑Prosecution evidence was wholly unreliable and it would be dangerous to act upon testimony of such‑like witness in criminal administration of justice‑‑‑Accused took a consistent stand right from the beginning to the last‑‑‑Defence version appeared to be reasonable, more especially keeping in view state of mind of deceased which was reflected from statement of accused as well as complainant‑‑‑Medical evidence had shown that it was closed range shot blowing off underlying bones which was a characteristic of suicidal wound‑‑‑Conviction and sentence awarded to accused were set aside extending him benefit of doubt and accused was acquitted of the charge.
N.A. Butt for Appellant.
Miss Tasneem Amin for the State.
Date of hearing: 9th July, 1999
2000 M L D 1652
[Lahore]
Before Ch. Ijaz Ahmad, J
DATA HAJVERI TRAVELS and others‑‑‑Petitioners
Versus
R.T.A. and others‑‑‑Respondents
Writ Petition No.7943 of 1999, decided on 7th May, 1999.
Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Arts. 4 & 199‑‑‑Equality before law‑.‑‑Duty and obligation of public functionary‑‑‑Application filed by petitioner before Competent Authority was sent to concerned Officer for consideration and to take action thereon in accordance with law and to submit report, but said Officer did not take action on the application according to instructions of the Competent Authority‑ ‑‑Petitioner had inherent right that his application must be decided by concerned Officer in accordance with law‑‑‑Public functionaries were duty bound to redress grievance of citizen as envisaged by Art.4 of Constitution of Pakistan (1973) without fear, favour and nepotism.
Tariq Shamim for Petitioners.
Muhammad Nawaz Bhatti, Addl. A.‑G. for Respondents.
2000 M L D 1653
[Lahore]
Before Ch. Ijaz Ahmad, J
KALSOOM AKHTAR‑‑‑Petitioner
Versus
FAZAL NOOR and others‑‑‑Respondents
Civil Revision No. 1202 of 1997, decided on 9th June, 1999
(a) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑Ss. 42 & 55‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for declaration and permanent mandatory injunction‑‑‑Plaintiff had claimed that original owner of property in dispute had executed "will" to the extent of one‑third share of his ownership in favour of plaintiff‑‑‑Plaintiff could not produce original copy of the "will" but produced certified copy thereof to which defendant objected‑‑‑Trial Court did not decide objection of defendant as to admissibility of certified copy of "will" while Appellate Court below overruled objection of defendant and decreed the suit holding that original "will" though was not produced by plaintiff before Trial Court, but same was produced and annexed with Revenue Record‑‑‑Appellate Court below gave such finding without examining record and decided the case on surmises and conjectures‑‑‑Finding of Appellate Court below based on misreading and non‑reading bf record, could not sustain‑‑‑High Court set aside judgment of Appellate Court below in exercise of its revisional jurisdiction and sent the case to Trial Court to decide afresh to allow plaintiff/respondent opportunity to either produce original copy of the "will" or in alternative to prove loss thereof.
1997 MLD 23761997 CLC 1957 and 1995 MLD 690 ref.
(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑
‑‑‑‑Arts. 76(g), 78 & 79‑‑‑Specific Relief Act (I of 1877), s.42 & 55‑‑‑Suit for declaration and permanent mandatory injunction‑‑‑Production of secondary evidence in presence of primary evidence‑‑‑Plaintiff claimed one-third share of property of original owner thereof on basis of "will" executed by the owner in favour of plaintiff‑‑‑Plaintiff, who could not produce original copy of the "will" in proof of his claim, produced certified copy thereof contending that original "will" was appended with Revenue Record‑‑Validity‑‑‑Primary evidence claimed to be available by plaintiff, its proof as required by Arts.78 & 79 of Qanun‑e‑Shahadat, 1984 should have been furnished by plaintiff, which having not been produced, original "will" stood not proved‑‑‑Certified copy of "will" placed on record would be treated as secondary evidence as envisaged by Art.76(g) of Qanun‑e‑Shahadat, 1984 and could not be considered as primary evidence.
(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑
‑‑‑‑Arts. 70, 72, 73 & 74‑‑‑Production of oral and documentary evidence‑‑Production of documentary evidence in form of primary evidence was essential for just decision‑‑‑Oral evidence of witnesses could not be of any value without producing available documentary evidence‑‑‑When any transaction had been drawn and executed in form of document, no oral evidence could be allowed to be produced to prove same unless it was shown that original document had been lost or could not be produced or procured and that, too, after obtaining permission from the Court for production of secondary evidence.
(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑
‑‑‑‑Arts. 74 & 87‑‑‑Production of certified copy of public document‑‑Admissibility‑‑‑Certified copy of public document though was admissible per se and could be received in evidence, but where certified copy of a private document forming part of public record was deemed to be produced in evidence and the execution as well as existence of document was denied, then secondary evidence by way of certified copy could not be received unless existence of original was proved, loss and destruction of original allowed and established or the original being in possession of the other side had not been produced by the other side‑‑‑Original document could resolve controversy as to admissibility of document at the time when document was tendered.
Muhammad Masood Chishti for Petitioners.
Sardar Anwar‑ul‑Haque for Respondent No. 1.
Muhammad Khurshid Anwar for Respondent No.2.
Date of hearing: 9th June, 1999.
2000 M L D 1680
[Lahore]
Before Syed Najam‑ul‑Hassan Kazmi, J
SALAHUDDIN HASSAN PIRZADA‑‑‑Petitioner
Versus
MUHAMMAD ASIM KHAN‑‑‑Respondent
Civil Revision No.326 of 1996, decided on 17th June, 1999.
(a) Civil Procedure Code (V of 1908)‑‑‑‑
‑‑‑‑O.XXXVII, Rr.2 & 3‑‑‑Suit for recovery of money on basis of cheques‑‑Leave to appear and defend suit‑‑‑Grant of‑‑‑If an application for leave to appear and defend the suit was filed and defendant disclosed plausible defence or triable issues, leave had to be granted‑‑‑Even if defence raised by defendant was illusory, leave to defend suit could not be refused and at best some condition could be imposed.
Fine Textile Mills Ltd. v. Haji Umar PLD 1963 SC 163 ref.
(b) Civil Procedure Code (V of 1908)‑‑‑‑
‑‑‑‑O. XXXVII, Rr. 2 & 3‑‑‑Suit for recovery of money on basis of cheques‑‑‑Leave to appear and defend suit‑‑‑Imposition of condition of Bank guarantee‑‑‑Condition of Bank guarantee, in ordinary cases could not be imposed unless and until it was shown that defendant had delayed the case and that intention was only to gain time and avoid discharge of liability‑‑‑If facts on record would not give impression that there was motive of delay and that conduct of defendant was objectionable, condition .of Bank guarantee could not be imposed on defendant.
Abdul Karim Jaffarani v. United Bank Limited and 2 others 1984 SCMR 568 ref.
(c) Civil Procedure Code (V of 1908)‑‑‑‑
‑‑‑‑S.115‑‑‑Revisional jurisdiction, exercise of‑‑‑Where discretion had been exercised by Court below fancifully, capriciously or arbitrarily, revisional Court was not denuded of its power to make interference.
Shahzada Muhammad Umar Beg v. Sultan Mehmood PLD 1970 SC 139 ref.
(d) Civil Procedure Code (V of 1908)‑‑‑‑
‑‑‑‑O. XXXVII, Rr.2 & 3‑‑‑Suit for recovery of amount on basis of cheques‑‑‑Leave to appear and defend suit‑‑‑Furnishing of Bank guarantee‑‑Defendant, (petitioner), had already furnished security to protect suit amount in other four suits which had shown bona fides of defendant‑‑‑Plaintiff having fully been protected, there was no need to issue directions to defendant for furnishing Bank guarantee because asking for Bank guarantee would be nothing, but to withdraw permission for leave to appear and defend suit which was granted by the Court‑‑‑Bank guarantee is issued on deposit of amount which would be equivalent to guarantee amount, such a condition was not required to be imposed in circumstances.
Ejaz Ahmad Ansari for Petitioner.
Muhammad Aslam Malik for Respondent.
Date of hearing: 17th June, 1999.
2000 M L D 1687
[Lahore]
Before Ali Nawaz Chowhan, J
MUHAMMAD ASLAM andothers---Petitioners
Versus
STATE and others---Respondents
Writ Petition No. 1849 of 2000, decided on 15th March, 2000.
(a) Criminal trial---
----Precedent---Determination of relevancy of case-law---Every criminal case had its own facts and circumstances and those were to be appreciated accordingly---Circumstances of a precedent case should, therefore, determine relevancy of a case-law.
(b) Criminal Procedure Code (V of 1898)---
----Ss.195, 476 & 476-A---Applicability of S.195, Cr.P.C. and procedure--Provisions of S.195, Cr.P.C. would apply only to such cases which had a close connection between the offence and Court proceedings---Section 195, Cr.P.C. contemplated cases of tampering with documents placed on record of a Court or cases of previously forged documents being used as genuine in certain Court proceedings---Provisions of 5.476, Cr.P.C. had laid down procedure to be followed in cases referred in S.195, Cr.P.C. and S.476-A, Cr.P.C. related to forwarding of cases for trial by Courts having jurisdiction.
Muhammad Siddique v. Rashid Ahmad Chaudhry and others 1998 MLD 686; Faqir Muhammad v. Ch. Ali Muhammad 1992 PCr.LJ 1085; Mian Muhammad Anwar and others v. Mian Muhammad Waqar Manu 1990 PCr.LJ 353; Muhammad Yaqoob v. S.H.O. and others 1997 MLD 2094 and Ameer and others v. S.H.O., Police Station Jhang 1998 PCr.LJ 2032 ref.
(c) Administration of justice---
---- Availing of two remedies, civil and criminal---Where two independent remedies (civil as well as criminal) were available to a person involved in a case, he could avail both of them simultaneously.
Muhammad Shafi's case PLD 1992 Lah. 178 and Abdul Jabbar's case 1998 PCr.LJ 1126 ref.
Muhammad Ameer Bhatti for Petitioners., Muhammad Asghar Bhutta for Respondent No.3.
Date of hearing: 8th March, 2000.
2000 M L D 1699
[Lahore]
Before Nasim Sikandar, J
MUHAMMAD HAYAT and 3 others‑‑‑Petitioners
Versus
AHMED YAR and 5 others‑‑‑Respondents
Civil Revision No. 1564 of 1986, decided on 19th August 1999.
(a) Civil Procedure Code (V of 1908)‑‑‑‑
‑‑‑‑O.XLI, R.27‑‑‑Additional evidence ‑‑‑Prosecutions of‑‑‑Application for adducing additional evidence was made before First Appellate Court after six years during which parties remained before; Trial Court‑‑‑Appellate Court below was justified in rejecting said application finding same to be an attempt to prolong the proceedings.
(b) Specific Relief Act (I of 1877)‑-
‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for declaration‑‑Maintainability ‑‑‑‑Revisional jurisdiction, exercise of‑‑‑Defendants/ respondents, in an earlier suit had claimed that present plaintiffs/petitioners had sold their land to them and plaintiffs/petitioners both appeared before Trial Court and suit was decreed in favour of respondents‑‑Plaintiffs/petitioners in fresh suit for declaration had challenged earlier decree passed in favour of respondents alleging that plaintiff in the fresh suit who was defendant in earlier suit was deaf and dumb and that she did not appear before the Trial Court and did not give consent statement on basis of which earlier suit was decreed in favour of respondents‑‑‑Sufficient material was on record to establish that husband of plaintiff/petitioner remained associated in all proceedings and was present on the day when conceding written statement was filed in earlier suit and an Advocate was engaged by petitioner to make the statement‑‑‑Petitioner could not allege, in circumstances, that respondents obtained decree by way of fraud‑‑‑Judicial record had totally supported case of the respondents that petitioner as defendant in earlier suit had personally appeared in the Court alongwith her husband and got recorded their conceding statements‑‑‑Plaintiffs/petitioners had failed to prove that judgment and decree challenged by them in the fresh suit were obtained by fraud or by impersonation .or ware a result of any misreading or Lion‑reading of evidence by Courts below‑‑‑Revision against the judgment based, as it was, on evidence on record was dismissed.
Kumbhar Musa Alib v. State of Gujarat AIR 1966 Guj. 101; Khushi Muhammad v. Jamat Ali PLD 1984 SC 54; Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Mst. Omai and others v. Hakeem Khan and others 1970 SCMR 499 Shamas‑ud‑Din v. Mst. Jewan 1986 MLD 764; Fateh Sher v. Sharif Khatoon 1986 CLC 320; Fazal Muhammad v. Mst. Aiyshan 1984 CLC 3401; Mumtaz alias Mangta v. Nazamuddin 1984 CLC 2826 and Abdul Hakeem v. Habibullah 1997 SCMR 1139 ref.
S.M. Tayyab for Petitioners.
Abid Hussain Minto assisted by Malik Muhammad Imtiaz Mahl for Respondents.
Date of hearing: 6th July, 1999.
2000 M L D 1705
[Lahore]
Before Muhammad Zafar Yasin, J
MUHAMMAD ARSHAD‑‑‑Petitioner
Versus
BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, BAHAWALPUR through Chairman and 2 others‑‑‑Respondents
Writ Petition No.6259 of 1997/BWP, decided on 29th May, 1999.
Educational institution‑‑‑‑
‑‑‑‑ Disqualification of candidate from examination on allegation of using unfair means‑‑‑Principle of natural justice‑‑‑Violation of‑‑‑Candidate was disqualified from examination on allegation that his answer sheet was written by two different handwritings‑‑‑Candidate appeared before Discipline Committee and denied charge against him and explained his position‑‑Authority concerned intimated candidate through letter that he had been exonerated of the charges against him‑‑‑Same Authority again intimated candidate that charges of using unfair means in examination had been proved against the candidate and he was disqualified without hearing him despite he had earlier been exonerated‑‑‑‑Earlier order .of Authority whereby candidate was exonerated which was duly communicated to him having attained finality, right had been created in the candidate‑‑‑Second Discipline Committee to whom matter was referred, did not provide the candidate any opportunity of hearing before finding him guilty and awarding punishment of reversing earlier order of exoneration‑‑‑Decision of Second Discipline Committee was void and without lawful authority which was passed in violation of principles of natural justice‑‑‑Principles of natural justice were to be read in every statute in particular in disciplinary action before awarding penalty‑‑‑Decision of Second Disciplinary Committee passed in violation of principles of natural justice being void and nullity in eye of law, decision of Appeal Committee upholding decision of said Second Disciplinary Committee, was also void and without lawful authority as same was superstructure built upon void proceedings taken by the Second Disciplinary Committee.
University of Dacca v. Zakir Ahmad PLD 1965 SC 90; Hajjaj Jogezai v. Board of Intermediate and Secondary Education, Lahore 1998 CLC 95; Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104 and Rahat Siddiqui v. Board of Intermediate and Secondary Education, Lahore and another 1977 SCMR 213 ref.
Shamsher Iqbal Chughtai for Petitioner.
Masood Ashraf Sheikh for Respondents. ‑
Date of hearing: 28th May, 1999.
2000 M L D 1709
[Lahore]
Before Falak Sher, J
ABID and another‑‑‑Petitioners
Versus
STATE‑‑‑Respondent
Criminal Miscellaneous No.410‑B of 2000, decided on 16th February, 2000.
Criminal Procedure Code (V of 1898)‑‑‑‑
‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.392‑‑‑Bail, grant of‑‑‑Incident was reported twelve days after preliminary investigation without spelling out any basis for suspecting accused to be the culprits‑‑‑Identity of accused had not been divulged in the F.I.R. and cited witnesses were only reported to have identified wrist‑watch and registration book of motor bike of accused which by no stretch of imagination would advance prosecution case qua identity of accused‑‑‑Alleged recovery of registration book and cash was riot witnessed by any private person from the vicinity‑‑‑Accused had already suffered more than eleven months internment and they were no more required by investigating agency and trial of case had not so far commenced‑‑‑Accused were allowed bail, in circumstances.
M. Yasin Farrukh Kamboh for Petitioners.
Ch. Muhammad Azeem for the State.
Date of hearing: 16th February, 2000..
2000 M L D 1710
[Lahore]
Before Muhammad Zafar Yasin, J
RAEID‑MOHSEN ABULOLY‑‑‑Petitioner
Versus
PRINCIPAL, QUAID‑I‑AZAM, MEDICAL COLLEGE, BAHAWALPUR and 2 others‑‑‑Respondents
Writ Petition No. 1624 of 1999/BWP, decided on 18th May, 1999.
Educational institution‑‑‑
Name of student was struck off from the college rolls with immediate effect without providing him opportunity of hearing‑‑‑Student who was a foreigner his right to continue his studies for medicines in Pakistan having been closed for all times, his valuable right was infringed by order of College Authority‑‑‑Authority was obliged to issue show cause to the student and provide him opportunity of hearing before passing order against him‑‑Principles of natural justice had to be observed in all proceedings which might result in consequences affecting person or property or other rights of parties, whether proceedings were taken up by judicial body or administrative authority‑‑‑Rules of natural justice were imperative and applied even though no positive words appeared in the statute or legal document whereby power was vested to take such proceedings‑‑‑Authority was directed by High Court to give one clear chance to the student to take examination in circumstances.
Asim Siddique v. Principal, Ayub Medical College, Abbottabad and another PLD 1992 Pesh. 52; Zubair Ishtiaq Qureshi v. The Chairman of Academic Council and others 1998 CLC 1675 and Akhtar Ali Javed v. Principal, Quaid‑e‑Azam Medical College, Bahawalpur 1994 SCMR 532 ref.
Muhammad Aslam Khan Dhukkar for Petitioner.
M. M. Bhatti for the University with S.M. Ijaz Zaidi, Assistant Professor QMC for Respondents.
Date of hearing: 11th May, 1999.
2000 M L D 1716
[Lahore]
Before Muhammad Naseem Chaudhri, J
Mst. NAJMA alias NAGINA‑‑‑Petitioner
Versus
THE STATE‑‑‑Respondent
Criminal Miscellaneous No.272‑B of 2000, decided on 27th March, 2000.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑‑No overt act or practical role had been attributed to accused, who was a female‑Accused was entitled to bail as her case was covered by first proviso to subsection (1) of S.497, Cr.P.C.
Aftab Ahmad Bajwa for Petitioner.
Saif Ullah for the State.
M. Akram Qureshi for the Complainant.
Date of hearing: 27th March, 2000.
2000 M L D 1717
[Lahore]
Before Khawaja Muhammad Sharif, J
MUHAMMAD RAFIQUE---Petitioner
Versus
THE STATE---Respondent
Criminal Miscellaneous No.72-B of 2000, decided on 12th January, 2000.
Criminal Procedure Code (V of 1898)---
----S.497---Penal Code (XLV of 1860), S.292---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10/14/18---Bail, grant of---No action had been taken against accused despite four years had passed after registration of case against him---Case against accused being that of further inquiry, he was allowed bail.
N.A. Butt for Petitioner.
Muhammad Anwar Tiwana for the State.
2000 M L D 1729
[Lahore]
Before Malik Muhammad Qayyum and
Syed Zahid Hussain, JJ
Mst. FARIDA SAJID‑‑‑Appellant.
versus
Syed MUHAMMAD BAQIR ALI SHAH
and others‑‑‑Respondents
Regular First Appeal No.245 of 1992, decided on 1st May, 2000.
(a) Muhammadan Law‑‑‑
‑‑‑‑Gift‑‑‑Delivery of possession‑‑‑Onus to prove‑‑‑Scope‑‑‑Delivery of possession is essential to the validity of gift‑‑‑Nature of possession which satisfies the condition depends upon the facts of each case‑‑‑Donor must do all he can do to divest himself of the ownership and domain over the property‑‑‑Essential to the validity and completion of the gift for donor to deliver the actual physical possession to the donees‑‑‑Delivery of the possession is essential and person relying upon the gift has to establish by convincing evidence that either physical or at least constructive possession has been delivered to him by the donor.
Muhammad Sarwar and 6 others v. Muhammad Iqbal and others 1997 MLD 130 and Mulla's Mahomedan Law, 17th Edn., para. 148. ref.
(b) Muhammadan Law‑‑‑
‑‑‑‑Gift‑‑‑Transfer of physical possession of gifted property‑‑‑Onus to prove‑‑‑Donor was in physical possession of the property at the time when he made the gift and remained in the same house till his death ‑‑‑Donees failed to prove that they were in the joint possession of the property with the donor before the gift‑‑‑Effect‑‑‑Donor was required to put the donees in physical possession of the property‑‑‑Neither there was any evidence on record to show that the donor did so, nor the donor had divested himself of the corpus, rather the donor had been dealing with the property as an owner even after having made the gift‑‑‑No valid gift was made qua suit property in circumstances.
(c) Muhammadan Law‑‑‑
‑‑‑‑Gift‑‑‑Delivery of possession‑‑‑Recital in the deed of gift qua delivery of possession‑‑‑Value‑‑‑Mere recital in the deed of gift is not conclusive proof of delivery of possession.
Ghulam Hassan and others v. Sarfraz Khan and others PLD 1956 SC (Pak.) 309; Ashiq Hussain and another v. Ashiq Ali 1972 SCMR 50 and Shamshad Ali Shah v. Hassan Ali Shah PLD 1960 Lah. 300 rel.
(d) Muhammadan Law‑‑‑
‑‑‑‑Gift‑‑‑Delivery of possession‑‑‑Gift made by father to son‑‑‑Requirement of‑‑‑Delivery of possession, principle of‑‑‑Non‑delivery of possession is applicable to the cases where son/donee is a minor and not when the property has been gifted by the father to a major son.
Ghulam Hassan and others v. Sarfraz Khan and others PLD 1956 SC 309 ref.
Syed Ikhtaisar Ahmad for Appellant.
Jehangir Akhtar Jhoja for Respondents Nos. 1 and 3
Nemo for Respondents Nos.4 and 5.
Date of hearing: 21st March, 2000.
2000 M L D 1745
[Lahore], Before M. Javed Buttar, J
DAEWOO CORPORATION through Attorney---Petitioner
Versus
NATIONAL HIGHWAY AUTHORITY through Chairman---Respondent
Writ Petition No. 704 of 2000, decided on 9th May, 2000.
(a) Constitution of Pakistan (1973)---
---Art. 199---Contractual dispute---Judicial review---Scope and extentPrinciples. While routine contractual disputes between private parties and public functionaries are not open to scrutiny under the Constitutional jurisdiction, breaches of such contracts, which do not entail inquiry into or examination of minute or controversial questions of fact, if committed by Government, semi-Government or Local Authorities or like controversies if involving derelictions of obligations, flowing from a statute, rules or instructions, can adequately be addressed to for relief under the Constitutional jurisdiction. Contract carrying elements of public interest, concluded by functionaries of the State has to be just, fair, transparent, reasonable and free of any taint of mala fides, all such aspects remain open for judicial review. The rule is founded on the premise that public functionaries, deriving authority from or under law, are obligated to act justly, fairly, equitably, reasonably, without any element of discrimination and squarely within the parameters of law, as applicable in a given situation. Deviations, if of substance, can be corrected through appropriate orders under Article 199 of the Constitution. In such behalf even where a contract, pure and simple, is involved, provided always that public element presents itself and the dispute does not entail evidentiary facts of a disputed nature, redress may be provided.
Messrs, Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 fol.
Mahabir Auto Stores v. Indian Oil .Corporation AIR 1990 SC 1031
(b) Constitution of Pakistan (1973)---
----Art. 199---Constitutional petition---Contractual dispute---Judicial review---Scope---Compelling a party to get its dispute referred to arbitration---Validity---In absence of any alive arbitration agreement between the parties, a party to a contract could not be forced by the Court to agree to refer the dispute to arbitration as such an agreement had t9 be voluntary--High Court could not issue such a direction because the same would amount to forcing the parties to a fresh agreement of arbitration if the petitioner was not satisfied with the refusal of the authority to agree to any settlement, the petitioner might approach the Civil Court of plenary jurisdiction through a regular civil suit.
Syed Ali Zafar for Petitioner.
Khawaja Muhammad Farooq for Respondent.
Ali Khan Sobahpota, Director (Legal) NHA.
2000 M L D 1755
[Lahore]
Before Mian Saqib Nisar, J
Raja TALAT MEHMOOD---Appellant
versus
ISMAT EHTISHAM-UL-HAQ---Respondent
First Appeal from Order No. 91 of 1998, heard on 2nd June, 1999.
(a) Civil Procedure Code (V of 1908)---
----OXXXIX, Rr. 1, 2(3), 2-A & O.XLI, R.1---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for specific performance and permanent injunction---Violation of interim order---Consequence---Defendant, having been found guilty of violating interim order granted in favour of plaintiff was directed to restore vacant possession of suit property to plaintiff---Defendant who had challenged said order had contended that under provisions of R.2-A of O.XXXIX, C.P.C. an ad interim injunction could only be granted for 15 days and it could be extended under proviso to R.2-A of OXXXIX, C.P.C. if conditions laid down therein were fulfilled and where no extension was subsequently granted by Court, order granting ad interim order had become inoperative and ineffective on lapse of 15 days---Validity---Contention was repelled because provisions of R.2-A of OXXXIX, C.P.C. were not mandatory, but had only provided guideline to the Court not to grant ad interim injunction "ordinarily" exceeding 15 days---Court had power to extend ad interim order if defendant had not been served and failure in that behalf was not attributed to plaintiff or when defendant had sought time for defence of application for injunction---Ad interim injunction granted per se would not lapse after expiry of fifteen days---Only requirement of law was that Court should extend such injunction, but if Court would not by any specific order grant extension of ad interim order earlier passed, it would be presumed that extension had been granted.
Samir Oosman and 2 others v. Rex Talkies (Pvt.) Ltd. PLD 1997 Kar. 579 and I & G Investment Trust v. Raja of Khatikot AIR 1952 Cal. 519 ref.
(b) Civil Procedure Code (V of 1908)---
----O.XXXIX, Rr. 1, 2(3) & 2-A---Grant of interim injunction--Violation-Defendant, who was proceeded against for violation of interim injunction granted to plaintiff, had alleged that order of injunction being vague and general in nature, no contempt could be pressed thereupon against him--Contention of defendant was repelled because status quo/interim order was to be interpreted in terms of injunction application filed by plaintiff--Plaintiff in his application for grant of interim injunction, in clear and unequivocal terms, had prayed that defendant be restrained from illegally and forcibly dispossessing the plaintiff---Defendant had admitted in his cross-examination that he was aware of the said order and had no intention to illegally dispossess plaintiff---Defendant, in circumstances, was not misled by order nor could he fail to comprehend same due to any vagueness.
Gaman and 5 others v. Muhammad Ali and 8 others PLD 1995 SC 572 ref.
(c) Civil Procedure Code (V of 1908)--
----O. XXXIX, Rr. 1, 2 (3) & 2-A---Grant of interim injunction--Violation---Defendant; who was proceeded against for violating interim injunction, had contended that proper procedure had not been followed by the Court in adjudicating the matter---Defendant had failed to show as to what error had been committed by Court in proceeding and adjudicating application filed by plaintiff against violation of interim injunction--Defendant had also failed to establish as to what prejudice had been caused to him in the proceedings---Court had framed proper issues covering controversy between the parties and defendant was fully conscious and aware of the charge against him---Parties were given full opportunities of adducing their evidence and nothing was on record which could validly show that defendant had been denied right of hearing as required under the law-Court, in circumstances, had followed proper procure in adjudicating the application against violation of interim order--Defendant was rightly proceeded against, in circumstances.
Hatim v. Shah Din PLD 1952 Lah. 77 ref.
Muhammad Younus Bhatti for Appellant.
Ibad-ur-Rehman Lodhi for Respondents.
Date of hearing: 2nd June, 1999.
2000 M L D 1766
[Lahore]
Before Muhammad Nawaz Abbasi and Sheikh Abdur Razzaq, JJ
MUHAMMAD RAFIQUE and another---Appellants
versus
THE STATE---Respondent
Criminal Appeal No.211 of 1993, 106, 112 of 1994 and Murder Reference No. 10 of 1994; decided on 15th February, 2000.
Penal Code (XLV of 1860)-----
----S.302/324/34---Appreciation of evidence---Eye-witnesses despite being related to deceased, had no grudge or enmity against accused---Complainant who had also sustained injuries at the hands of accused his presence at place of occurrence which was quite natural, could not be doubted---Statement of complainant with regard to injuries received by deceased at the hands of accused remained unrebutted despite lengthy cross-examination of complainant and accused could not prove by whatever evidence that injuries on person of complainant were self-inflicted or that presence of complainant at time of occurrence at the spot )vas doubtful---Relationship of complainant with deceased was not a convincing reason to disbelieve him who being truthful was confidence inspiring---Other prosecution witness was a shopkeeper in neighbourhood of deceased in Bazar and occurrence had taken place near his shop and deceased after sustaining injuries fell on Thara of shop of the witness---No evidence was on record to show that either shop of the witness was closed at the time of occurrence or that he was not present at the shop at that time---Prosecution witness was most natural and independent witness of occurrence and despite his friendship with deceased he had no grudge or malice against accused to implicate him in a false case or depose against him or substitute him with real culprits---Blood-stained Chhuri recovered at the instance of accused from his house was witnessed by an independent person which had provided a strong corroboration to the ocular account of natural and independent witnesses---Medical evidence had further confirmed sustaining of fatal injuries by deceased with sharp-edged weapon and also supported ocular account---Plea of innocence taken by accused was not supported by any direct or circumstantial evidence available on record--Prosecution witnesses, despite being - related to deceased, were entirely independent, natural and truthful and they had corroborated each other on each material point and their evidence was further corroborated by medical evidence and recovery of weapon of offence---Minor discrepancies and contradictions between said witnesses could not affect their testimony---Trial Court, in circumstances, had rightly convicted accused under S.302(b), P.P.C. for committing Qatl-e-Amd of deceased but motive of occurrence being shrouded in mystery, death sentence awarded to accused by Trial Court was converted into imprisonment for life.
Ch. Afrasiab Khan for Appellant.
Raja M. Ayub Kiani and Ch. Muhammad Akhtar Khan for the Complaint.
Date of hearing: 15th February, 2000.
2000 M L D 1774
[Lahore]
Before Khawaja Muhammad Sharif, J
TALIB HUSSAIN and others---Petitioner
versus
THE STATE---Respondent
Criminal Appeal No.565 of 1997, heard on 20th April, 2000.
Penal Code (XLV of 1860)---
----S.302/201/34---Appreciation of evidence---No time and day of occurrence was mentioned in F.I.R. and nobody was named therein---One of the prosecution witnesses who was closely related to deceased was resident of a place situated at a distance of 60/70 miles from place of occurrence---Said prosecution witness who was witness of recovery of daggers allegedly got - recovered on pointation of accused, himself was involved in many criminal cases---No person from locality was joined in investigation to witness recoveries---No motive was proved against accused---Sex and age of the deceased whose post-mortem was conducted by doctor, had not been identified and established on record and dead body which was found headless could not be identified---Trial Court recorded supplementary statements of witnesses nine months after their first statement which was against law--Prosecution witnesses in their supplementary statements introduced a new story which was quite different to their earlier statements---Case was of circumstantial evidence in which certain links were missing---For conviction of a person for a charge of capital punishment, evidence must be from unimpeachable source which was not present in the case---Capital punishment awarded by Trial Court to accused could not be maintained-- Conviction and sentence awarded to accused were set aside and they were ordered to be released.
Malik Muhammad Akram Awan for Appellant.
Abdul Qayyum Anjam for the State.
Malik Muhammad Qasim Joya for the Complainant.
Date of hearing: 20th April, 2000.
2000 M L D 1777
[Lahore]
Before Muhammad Nawaz Abbasi and Shaikh Abdur Razzaq, JJ
MUHAMMAD ASHRAF alias MANNA---Appellant
versus
THE STATE---Respondent
Criminal Appeal No. 143 and Murder Reference No.246 of 1994, heard on 4th April, 2000.
Penal Code (XLV of 1860)----
----S. 302---Appreciation of evidence---Broad daylight occurrence and witnesses, despite being closely related to deceased were quite independent and material witnesses---Ocular statement of witnesses was corroborated by medical evidence---Prosecution witnesses had neither any grievance nor grudge against accused----Reasonable interval in occurrence and alleged incident of motive Fart of story could not be considered as sufficient source to doubt truthfulness of prosecution story---Substitution being rare phenomenon, no reasons existed to substitute accused with real culprit ---Eyewitnesses account being independent, material and confidence inspiring alone was ~e,nough to establish charge against accused and medical evidence as well as recovery of blood-stained knife at instance of accused with positive report of Chemical Examiner, had further provided a strong corroboration of ocular account---Trial Court, in circumstances, had rightly found accused guilty of offence---Conviction of accused was maintained, but prosecution having failed to bring on record any evidence to prove immediate cause of occurrence and to show what prompted accused on day of occurrence to commit crime, sentence of life imprisonment was considered sufficient to meet ends of justice---Sentence of death awarded to accused by Trial Court was reduced to life imprisonment in circumstances.
Muhammad Arshad Tabraiz for Appelant.
Aftab Ahmad Gujjar for the State.
Date of hearing: 4th April, 2000
2000 M L D 1782
[Lahore
Before Sheikh Abdur Razzaq, J
KHUDA DAD---Petitioner
versus
GHULAM QASIM and 6 others---Respondents
Criminal Revision No.64 of 1991, heard on 5th May, 2000.
Penal Code (XLY of 1860)---
-----S.302/307/148/149/34---Appreciation of evidence---Statements of prosecution witnesses that deceased was given rifle shot .by accused, stood falsified by statement of Doctor who conducted post-mortem of deceased and had stated that injuries on person of deceased had been caused with a gun-- Such contradiction between ocular account and medical evidence had created doubt regarding stand taken by complainant in complaint---Contradictions and discrepancies were also found with regard to number of injuries as according to complainant deceased had received 7 injuries, whereas Medical Officer reported 5 injuries and similar was the case with regard to recoveries of weapon of offence---None of witnesses of recovery had been examined and all memos. had been brought on record `through statement of Investigating Officer---Presence of injured witness at place of occurrence though could not be doubted, but it would not mean that said witness was a truthful witness and presumption of truth was attached to his statement--Statement of injured witness had to be corroborated by independent evidence and order of conviction could not be based on his solitary statement=-Statement of injured witness which stood contradicted by medical evidence and lacked independent corroboration, could not be made basis for passing order of conviction against accused---Trial Court had passed judgment and acquitted accused after carefully scanning and analysing evidence---Said judgment was unexceptionable and could not call for any interference by High Court.
Yaqoob Shah v. The State PLD 1976 SC 53; Miraj Din and others v. The State 1985 PCr.LJ 2219; Muhammad Tayyab v. The State 1991 PCr.LJ 174.; Nawaz Ali and another v. The State 1981 SCMR 132; Mardan Ali v. Gulistan and others 1980 SCMR 889; Ghulam Farid v. The State 1992 SCMR 1258; Attaullah and another v. The State PLD 1990 Pesh. 10; Said Ahmed v. Zamurrad Hussain and 4 others 1981 SCMR 795; Muhammad Hayat and another v. The State 1996 SCMR 1411; Phulail Khan v. The State 1972 SCMR 95; Sultan Khan and 3 others v. The State and 2 others 198T SCMR 237 and Abdul Ghafoor v. Sultan Ali and 4 others 1981 PCr. LJ 868 ref.
Ch. Afrasiab Khan for Appellant.
Ch. Muhammad Iqbal for Respondents Nos. l to 6.
Mubeen Ahmad for the State.
Date of hearing: 5th May, 2000.
2000 M L D 1787
[Lahore]
Before Muhammad Nawaz Abbasi, J
ZULFIQAR ALI alias BHUTTO ---Appellant
versus
THE STATE---Respondent
Criminal Appeal No. 126 of 1994, heard on 14th March, 2000.
Penal Code (XLV of 1860)---
----S.302---Appreciation of evidence---Complainant was father of deceased and one of the other eye-witnesses was also closely related to deceased--Report with regard to injuries on person of deceased as given by the Doctor who conducted post-mortem of deceased was in conflict with ocular account which had . shown that it was an unwitnessed occurrence---Claim of prosecution witnesses that they while following accused and deceased had witnessed occurrence, was negated by statement of Investigating Officer that after occurrence when deceased was identified by persons gathered there one man was sent to inform parents of deceased and father of deceased and other prosecution witness reached at the spot after about half an hour of occurrence---From circumstances under which occurrence had taken place in a very poor visibility of dark, evening, it could be concluded that case was of no evidence---Prosecution having failed to prove charge against accused beyond any reasonable doubt, conviction and sentence awarded to accused by Trial Court, were set aside and accused was directed to be released.
Ch. Zamurad Hussain for Appellant.
Aftab Ahmed Gujjar for the State.
Sh. Muhammad Afzal for the Complainant.
Date of hearing: 14th March, 2000.
2000 M L D 1792
[Lahore]
Before Riaz Kayani and Khawaja Muhammad Sharif, JJ
SHEHZAD QAMAR---Appellant
versus
THE STATE---Respondent
Appeal No.569 and Murder Reference No. 193-T of 1998, heard
Penal Code (XLV of 1860)---
----S.302/308---Appreciation of evidence---Accused was named in F.I.R. and matter was reported to the police promptly---Accused armed with-pistol had caused injuries on person of deceased alongwith his absconder co-accused--Occurrence had taken place at time when there was sufficient light---Motive of occurrence had fully been proved---Both eye-witnesses were independent witnesses and no previous background of enmity was proved: between parties---No possibility of false implication of accused existed as he had himself admitted that he was present at the spot at time of occurrence--Ocular account having come from unimpeachable source corroborated by medical evidence and motive furnished by complainant, case against accused had fully been established beyond any reasonable doubt---Conviction of accused was upheld, but accused being below 18 years of age at time of occurrence death sentence awarded to accused by Trial Court under S.302(b), P.P.C. was converted to under S.308, P.P.C. and was sentenced to 14 years' R.I. alongwith full payment of amount of Diyat.
1999 SCMR 2652 ref.
Iqbal Bhatti for Appellant.
Najam-ul-Hassan Gill for the State.
Muhammad Hussain Chhachhar for the Complainant.
Date of hearing: 11th April, 2000.
2000 M L D 1797
[Lahore]
Before Dr. Munir Ahmad Mughal, J
MUHAMMAD MUNIR---Petitioner
versus
MUHAMMAD YOUSAF and 7, others---Respondents
Writ Petition No.6594 of 2000, decided on 5th June; 2000.
Criminal Procedure Code (V of 1898)---
----S.133---West Pakistan Land Revenue Act (XVII of 1967), Ss:7 & 117--West Pakistan Land Revenue Rules, 1968, R.67-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Encroachment upon public way--Respondents having encroached upon public way, petitioner filed complaint against the encroachment---Trial Court after spot inspection directed TehsildariRevenue Officer to demarcate property in dispute and Revenue Officer in compliance with order of Trial Court conducted demarcation proceedings and prepared his report wherein respondents were found having encroached upon public way---Proceedings upon said report having been delayed by Trial Court, petitioner filed Constitutional petition to get the matter decided expeditiously and High Court accepting petition' directed Trial Court to decide complaint filed by petitioner within specified period---Trial Court instead of acting upon report of competent Revenue Officer which was prepared after spot inspection and was already on file asked Halqa Girdawar to prepare a demarcation report---Halqa Girdawar in compliance with direction of Trial Court reported that no encroachment had been made by respondents---Trial Court on basis of said report dismissed complaint of petitioner and said order of dismissal of complaint was upheld in revision---Validity---Courts below should have taken into consideration earlier report prepared by Competent Authority on basis of which respondents were found having made the encroachment---Orders passed by Courts below on report of Halqa Girdawar who was not Competent Authority in that respect, were held to be illegal by High Court and was set aside---Revenue Authorities could, however, take fresh action in accordance with S-.7 of West Pakistan Land Revenue Act, 1967 and R.67A of West Pakistan Land Revenue Rules, 9~=
app. 1798, 1800, 1801, 18061 A, B, C & D
PLD 1974 Punjab Statutes p.84 and Anwar Club and another Muhammad Sarwar PLD 1992 Lah. 63 ret.
Rana Nasrulalh Khan for Petitioner_ Nemo for Respondent.
Date of hearing: 5th June, 2000.
2000 M L D 1807
[Lahore]
Before Khawaja Muhammad Sharif, J
AISMAT BEGUM‑ ‑‑Petitioner
versus
THE STATE‑‑‑Respondent
Criminal Miscellaneous No. 1077‑B of 2000, decided on 12th April, 2000.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10‑‑‑Bail, grant of‑‑‑Female accused and her co‑accused though had committed heinous offence, but accused being a lady her case was covered by fast proviso to S.497(2), Cr:P.C., especially when she had a suckling baby‑‑‑Accused was allowed bail.
Ch. Anwar‑ul‑Haq Pannu for Petitioner.
Ali Raza for the State.
2000 M L D 1808
[Lahore]
Before Muhammad Naeemullah Khan Sherwani and Bashir A. Mujahid, JJ
Hafiz ABDUL MALIK ‑‑‑Petitioner
versus
THE STATE‑‑‑Respondent
Criminal Miscellaneous No.689‑B of 2000, decided on 26th April, 2000.
Criminal Procedure Code (V of 1898)‑‑‑‑
‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/324/201/109/148/149‑‑‑Bail, grant of‑‑‑Accusations brought against accused were that he hatched out conspiracy and in pursuance thereof his co‑accused constituted themselves into unlawful assembly, and while armed with fire‑arms they resorted to firing in quick succession over an assembly of persons who were attending Majlis and in consequence of said firing a large number of persons were killed and sustained felonious injuries‑‑‑Such startling allegations were supported by statement of two witnesses whose testimony remained unrebutted‑‑‑Accused appeared to be a great schemer and conspiracy hatched out by him was carried to its logical end which spoke of his fullest participation in commission of crime in question‑‑‑Poor eye‑sight of accused would not entitle him to grant of bail‑‑Bail was refused to accused in circumstances.
Hakeem Mahmood for Petitioner.
Ch. Falak Sher Chadhar for the Complainant.
Agha Khuram for the State.
Date of hearing: 26th April, 2000.
2000 M L D 1809
[Lahore]
Before Dr. Munir Ahmad Mughal, J
MUHAMMAD AYUB‑‑‑Petitioner
versus
LAHORE DEVELOPMENT AUTHORITY and others‑‑‑Respondents
Writ Petition No. 3158 of 2000, decided on 3rd March, 2000.
(a) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.I, R.10(2)‑‑‑Striking out or adding parties to a suit Provisions of O.I, R.10(2), C.P.C. make it clear that its object is to avoid mutiplicity of suit and separate actions and to completely and effectively dispose of all the questions involved in the suit‑‑‑Order I, R.10(2), C.P.C. vests a judicial discretion in the Court to add parties at any stage after the presentation of the plaint.
(b) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.I, R. 10‑‑‑Parties, classification of‑‑‑Parties can either be classified as a necessary party or a proper party for the purposes of O.I, R. 10, C.P.C.
(c) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑O.I, R.10‑‑‑Expression "Necessary party" as used in O.I, R.10, Civil Procedure Code, 1908‑‑‑Connotation‑‑‑Person who ought to have been coined and in whose absence no effective decree could be passed was a "necessary party"‑‑‑Suit could not proceed in absence of such party.
(d) Civil Procedure Code (V of 1908)‑‑‑
‑‑O.I, R.10‑‑‑"Proper party" as‑used in O.I, R.10, C.P,C.‑‑‑Connotation.‑Person whose presence is necessary to effectively and completely adjudicate upon and settle all points involved in the suit, is a "proper party".
(e) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.I, R. 10‑‑‑"Necessary party" and "proper party"---Distinction‑‑‑ Person against whom no relief is asked for is not a necessary party but may be a proper party‑‑‑Failure to implead necessary or proper party‑‑‑Effect‑‑‑Where a necessary party is not impleaded, suit is bad while a suit in which a proper party is not impleaded, is not bad.
(f) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.I, R. 10‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Impleading a party to suit‑‑‑Trial Court allowed the respondents to ire impleaded in the suit and the order was maintained by Lower Appellate Court‑‑‑Validity‑‑‑Respondents were the persons who were going to be adversely affected by the action sought by the petitioner, one way or the other‑‑‑Multiplicity of litigation would otherwise take place as the respondents were the persons whose presence was necessary to effectively and completely adjudicate upon and settle all points involved in the suit‑‑Orders passed by both the Courts below were legal and the Courts were empowered under O.I. R. 10 (2), C.P.C. to pass such orders‑‑‑Petition was dismissed accordingly.
Mian Iqbal Hussain Kalanauri for Petitioner.
Mian Muzaffar Hussain, Addl. Legal Adviser, L.D.A.
Ashfaq Safrdar 'Tarar, General Attorney of Respondents Nos.7 and 8.
Naseer Ahmed, Superintendent, D.C. Office, Lahore with Muhammad Naseem Sabir; Addl. A.‑G.
2000 M L D 1821
[Lahore]
Before Ch. Ijaz Ahmad, J
NATIONAL BANK OF PAKISTAN‑‑‑Petitioner
versus
GOVERNMENT OF PAKISTAN and others‑‑‑Respondents
Writ Petition No. 19537 of 1999, heard on 7th March, 2000.
Constitution of Pakistan (1973)‑‑‑
‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Violation of banking instructions‑‑Person holding general power of attorney operating account as behalf of his principals‑‑‑Transaction was made in violation of banking instructions and huge amount was withdrawn without seven days' notice which was precondition to withdraw amount exceeding' Rs.15,000 from PLS account‑‑Standing counsel of the Bank stated that on the basis of power of attorney, the general attorney was not authorised to open account in his own name but the Manage; did contrary to such advice‑‑‑Wafaqi Mohtasib decided the matter against the Bank and appeal before the President of Pakistan was dismissed‑‑‑Bank had invoked the Constitutional jurisdiction which was discretionay in nature‑‑‑High Court refused to exercise discretion in favour of the Bank on the principle, "he who seeks equity must come to the Court with clean hands"‑‑‑Petition was dismissed accordingly.
Nawabzada Ronaq Ali's case PLD 1973 SC 236; Rana Muhammad Arshad's case 1998 SCMR 1462; G.M. Malik's case 1990 CLC‑1783 and PLD 1974 SC 106 and Wali Muhammad and others v. Sakhi Muhammad 1973 SCMR 127 ref.
Muhammad Qamar‑uz‑Zaman for Appellant.
2000 M L D 1830
[Lahore]
Before Raja Muhammad Khurshid, J
MUHAMMAD RASHID‑‑‑Petitioner
versus
Mian MUHAMMAD WASEEM AHMAD, SENIOR SPECIAL MAGISTRATE and another‑‑‑Respondents
Writ Petition No. 11340 of 1999, decided on 21st June, 1999.
(a) Lahore Development Authority Act (XXX of 1975)‑‑‑
‑‑‑‑S.33/34‑‑‑Charge against accused was that he had put up a sign board in violation of S.33/34 of Lahore Development Authority Act, 1975‑‑‑Chargesheet in which name of accused was clearly written was read over to him and he made a clear breast of having committed offence‑‑‑Accused having himself confessed that he had committed offence, was rightly convicted and sentenced.
(b) Lahore Development Authority Act (XXX of 1975)‑‑‑
‑‑‑‑S. 33/34‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Petitioner who was convicted and sentenced under S:33/34 of Lahore Development Authority Act, 1975, could avail provisions contained in S. 412, Cr.P.C. or in alternate could avail revisional jurisdiction, but he had directly challenged his conviction through Constitutional petition‑‑‑Equally effective and efficacious remedy being available to accused/petitioner under ordinary law of land, Constitutional petition filed by him was not maintainable.
M.M. Arshad for Petitioner.
Date of hearing: 21st June, 1999.
2000 M L D 1850
[Lahore]
Before Tanvir Ahmad Khan, J
ATLANTIC CARPETS through Partner‑‑‑Plaintiff
versus
Messrs EMIRATES BANK INTERNATIONAL and another‑‑‑Respondents
Civil Original Suit No.27 of 1999, decided on 1st March, 2000
(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑
‑‑‑‑S.9‑‑‑Suit for recovery of damages‑‑‑Maintainability‑‑‑Customer could only file a suit under the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, if there was some dispute with the Banking company in fulfilling any obligation with regard to any loan or finance‑‑‑Effect‑‑‑Where the plaintiff in his entire suit had not stated a single word that the defendant‑Both had committed default of such nature, suit was not maintainable.
Nasimuddin Siddiqui and another v. United Bank Limited and others 1998 CLC 1718 and United Bank Ltd. v. Adamjee Insurance Co. Ltd. ,1988 CLC 1660 ref.
(b) Banking Companies (Recovery of. Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑
‑‑‑‑Ss. 7 (4) & 9 (1)‑‑‑Suit for recovery of damages ‑‑‑Maintainability‑‑Jurisdiction of Banking Court‑‑‑Plaintiff availed no financial facility from the defendant‑Bank and he was just an account holder‑‑‑Criminal case was registered against the plaintiff on the information provided by the Bank to the Authorities rind a suit was filed by the plaintiff against the Bank for' providing such information‑‑‑Validity‑‑‑Case of account holder did not come within the purview of Ss.7(4) & 9 (1) of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997‑‑‑Suit being not maintainable was dismissed in circumstances.
Hudabiya Engineering (Pvt.) Limited v. Pakistan through Secretary, Ministry of Interior, Government of Pakistan and 6 others PLD 1998 Lah. 90; Messrs Grain System (Pvt.) Ltd. and 10 others v. Agricultural Development Bank 1993 SCMR 1996; Valuegold Limited and 2 others v. United Bank‑ Limited PLD 1999 Kar. 1; N.D.F.C. v. Anwar Zaib White Cement Ltd. and others 1999 MLD 1888 and PICIC v. Frontier Ceramics Ltd. and others 2000 CLC 287 ref.
Raja Muhammad Anwar with Raja Shafqat Khan Abbasi for Plaintiff.
Khalid Saleem and Mirza Azhar Beg for Respondents
Date of hearing: Ist March, 2000.
2000 M L D 1858
[Lahore]
Before Mian Nazir Akhtar, J
MUHAMMAD AFZAL‑‑‑Appellant
versus
MUHAMMAD TUFAIL‑‑‑Respondent
Second Appeal from Order No.4 of 2000, heard on 29th March, 2000.
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)
‑‑‑‑S.13(3)(a)(ii)‑‑‑Bona fide personal need of landlord ‑‑‑Personal need of landlord includes his needs for maintaining and supporting his dependants‑‑Landlord cannot set up the personal need of his father, brother or any other near relatives for seeking eviction of a tenant unless the relatives are his dependants‑‑Personal need of landlord inherently includes his needs for maintaining and supporting his dependants‑‑‑Eviction of, tenant. can, however, be sought for the needs of the children of landlord, even if they are not his dependents.
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑
‑‑‑‑S.13(3)(a)‑‑‑Bona fide personal need of relatives of landlord dependant on him‑‑‑Validity‑‑‑Father and brother of the landlord were his dependants and had no source of income‑‑‑Landlord used to send money for those dependants from abroad for their livelihood‑‑‑Premises were purchased with the funds provided by the landlord and the intended business was also to be financed by the landlord though the same was to be run at the spot by his father and brother‑‑‑Landlord in such case would be relieved of his obligation of sending money from abroad for his father and brother and his personal need to support his dependants would be satisfied.‑‑‑Appellate Court had rightly reversed the order passed by the Rent Controller, allowed the appeal and ordered the eviction of the tenant from the premises.
Mahmood‑ul‑Hassan's case 1980 CLC 829; Abdul Salam Akhtar v. Dr. Najam Pervez 1976 SCMR 52; M.A. Khan v. Mst. Masooda Shaheen 1981 CLC 1358; Saeed Ahmad v. Tariq Nazir Butt and another 1987 SCMR 220 and Syed Abdul Rauf v. Abdul Sattar 1998 SCMR 2525 ref.
(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑
‑‑‑‑S.13‑‑‑Bona fide personal need of landlord‑‑‑Non‑appearance of landlord as witness‑‑‑Real brother of landlord appeared as his attorney to depose to his personal bona fide requirement of the premises ‑‑‑Validity‑‑‑Non-appearance of the landlord was not fatal to his case.
Mst. Amina Bibi v. Muhammad Khalid Ehsan 1998 CLC 1825 ref.
Sardar Muhammad Aslam for Appellant:
Malik Shahzad Ahmad for Respondent.
Date of hearing: 29th March, 2000.
2000 M L D 1864
[Lahore]
Before Maulvi Anwarul Haq, J
MUHAMMAD HANEEF KHAN and 7 others‑‑‑Appellants
versus
MUHAMMAD NAWAZ through Legal Heirs‑‑‑Respondent
Regular Second Appeal No.440 of 1980, heard on 8th March, 2000.
Punjab Pre‑emption Act (I of 1913)‑‑
‑‑‑‑Ss.4, 15 & 21‑A‑‑‑Suit for pre‑emption ‑‑‑Superior right of pre-emption ‑‑‑Plaintiffs claimed superior right of pre‑emption in respect of suit property contending that they were owners in estate while vendees were strangers‑‑‑Evidence on record had proved that vendees prior to the filing of suit by plaintiffs had improved their status by obtaining land in the area through a gift in their favour‑‑‑Plaintiffs could not prove that the gift of land in favour of defendants was invalid or void‑‑‑Courts below, in circumstances, were not justified to hold that vendees had not improved their status by obtaining land in area through gift and the gift was in violation of law and was invalid ‑‑‑Vendees having proved to have improved their status prior to filing of the suit by pre‑emptors, pre‑emptors could not claim superior right of pre‑emption against vendees in circumstances.
Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289; Muhammad Aslam and 2 others v. Syed Muhammad Azeem Shah and 3 others 1996 SCMR 1862; Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53; Shahro and others v. Mst. Fatima and others PLD 1998 SC 1512; Pakistan International Airlines Corporation v. Messrs Khalid Brothers PLD 1992 Kar. 78 and Mst. Aisha Bibi v. Nazir Ahmad and 10 others 1994 SCMR 1935 ref.
Muhammad Khalid Alvi for Appellants.
Mirza Manzoor Ahmad for Respondents.
Date of hearing: 8th March, 2000.
2000 M L D 1872
[Lahore]
Before Maulvi Anwarul Haq, J
MUHAMMAD WARYAM and 27 others‑‑‑Appellants
versus
NATHAY KHAN and another‑‑‑Respondents
Regular Second Appeal No.24 of 1987, heard on 12th April, 2000.
Punjab Pre‑emption Act (I of 1913)‑‑‑
‑‑‑‑‑Ss.8 & 21‑‑‑Colonization of Government Lands (Punjab) Act (V of 1912), S.4‑‑‑Suit for pre‑emption ‑‑‑Exemption of land from pre‑emption‑‑Suit filed by pre‑emptors on ground of being owners in the estate as well as co‑owners was decreed by Trial Court, but judgment and decree of Trial Court was set aside by Appellate Court holding that land being Government property was exempted from pre‑emption ‑‑‑Suit land was purchased by vendees from .private owners who were recorded as owners of land in the Revenue Record‑‑‑Village wherein the lend in dispute was situated was owned by Government before Kharif, 1905, but after that same became the private ownership and land revenue was assessed in respect of the land and was being recovered‑‑‑Colonization of Government Lands (Punjab) Acts 1912 from its very inception could not be applied to the land which had become private ownership w.e.f. Kharif, 1905 several years before the enactment of said Act‑‑‑Appellate Court having misread evidence on record was not justified to non‑suit pre‑emptors by misconstruing the law‑‑‑Judgment of Appellate Court being contrary to law was set aside.
Muhammad Asif Raft Shah for Appellants.
Mian Mushtaq Ahmad for Respondents.
Date of hearing: 12th April, 2000.
2000 M L D 1875
[Lahore]
Before Syed Zahid Hussain, J
ADBUL AZIZ‑‑‑Appellant
versus
MAQSOOD AHMED ‑‑‑Respondent
Regular Second Appeal No.6 of 1998, heard on 8th May, 2000.
Specific Relief Act (I of 1877)‑‑‑‑
‑‑‑‑Ss.12 & 20‑‑‑Suit for specific performance of agreement‑‑‑Plaintiff by producing oral and documentary evidence on record had proved execution of valid agreement of sale arrived at between parties and receipt of earnest money by defendant from the plaintiff‑‑‑Contention of defendant that decree for specific performance of agreement could not be passed as plaintiff had taken alternate plea of return of earnest money, was repelled because when execution of agreement to sell was proved on record, it was to be honoured by the parties and was to be enforced by Court unless compelling reasons existed for declining such a relief‑‑‑Both Courts below on basis of unrebutted evidence concurrently had decreed the suit and such findings based on evidence on record could not be interfered with in absence of any misreading or non‑reading of evidence.
Sakina Bibi and others v. Kurnool Muhammad Bashir PLD 1967 Kar. 158; Hakim Ghulam Rasool v. Imdad Hussain and another PLD 1968 Lah. 501 and Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189 ref.
Ijaz Akbar for Appellant.
Mian Ghulam Rasul for Respondent.
Date of hearing: 8th May, 2000.
2000 M L D 1880
[Lahore]
Before Ch. Ijaz Ahmad, J
SERVICE INDUSTRIES TEXTILES LIMITED, LAHORE‑‑‑Petitioner
versus
SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN through Chairman, Blue Area, Islamabad and 4 others‑‑‑Respondents
Writ Petition No.6311 of 2000, decided on 26th April, 2000
(a) Companies Ordinance (XLVII of 1984)‑‑‑
‑‑‑‑S. 263‑‑‑Appointment of Inspector to investigate the affairs of company‑‑Preconditions imposed upon Authority enumerated.
(b) Companies Ordinance (XLVII of 1984)‑‑‑
‑‑‑‑Ss.263 & 265‑A‑‑‑Constitution of Pakistan (1973), Arts.2A & 199‑‑Constitutional petition‑‑‑Investigation against company‑‑‑Principles of natural justice‑‑‑Violation of‑‑‑Authority/Commissioner (Enforcement) passed order against the Company without providing opportunity of hearing‑‑‑Section 263 of Companies Ordinance, 1984 was itself a code and it did not allow Authority to take action against a company without providing personal hearing‑‑‑Investigation against company being a serious matter same should not be ordered except on good or satisfactory grounds‑‑‑Public functionaries could not pass any order without providing personal hearing to concerned persons as same was in violation of Injunctions of Islam in view of Art.2A, Constitution of Pakistan (1973)‑‑‑Principle which governed administration of justice in Islam was that in case of liability with penal or quasi‑penal consequences and or deprivation of basic rights, a notice as well as an opportunity of hearing were absolutely necessary‑‑‑Order passed by Authority in violation of natural justice was set aside by High Court in circumstances.
Zakir Ahmad's case PLD 1965 SC 90; Maryam Yunus v. Director of Education PLD 1990 SC 666; Ghulam Mustafa Jatoi's case 1994 SCMR 1299; Muhammad Tariq v. PIA 1998 SCMR 429; Chief Commissioner's case PLD 1959 SC 45; Anisa Rehman's case 1994 SCMR 2232; S.L. Kapoor v. Jagmohan and others AIR 1981 SC 136; Union of India v. Swadeshi Cotton Mills AIR 1981 SC 818; Khaqan Industrial Ltd. v: Islamic Repubilc of Pakistan Civil Petition No.501 of 1978; Mian Mehraj Din & Brothers v. Steel Mills and others 1996 CLC.516; Pakistan and others v. Public‑at‑Large and another PLD 1987 SC 304; Commissioner of East Pakistan v. Fazal‑ur-Rehman PLD 1964 SC 410; Ghulam Muhammad v. Muhammad Sharif PLD .1969 SC 398; Muhammad Khuram v. Muhammad Waqar 1991 CLC 378; Nazir Ahmed v. Government of Pakistan PLD 1970 SC 453 and Syed Mir Muhammad's case PLD 1981 SC 176 ref.
Faisal Islam for Petitioner.
Kh. Saeed‑uz‑Zafar, Dy. Attorney‑General for Respondents Nos. l and 2 alongwith Ghazi Ahmad Saeed, Dy. Chief (Legal), SECP.
Respondent No.3 in person.
Haider Zaman Qureshi for Respondent No.5.
Date of hearing: 26th April, 2000.
2000 M L D 1886
[Lahore]
Before Muhammad Akhtar Shabbir, J
MUHAMMAD RIAZ‑‑‑Petitioner
versus
Mst. ROBINA BIBI and another‑‑‑Respondents
Writ Petition No.9570 of 1999, heard on 10th February, 2000.
(a) Muhammadan Law‑‑‑
‑‑‑‑Marriage‑‑‑Nature‑‑‑Marriage was a contract between two opposite sexes for the procreation of children‑‑‑Marriage under Muslim Law had a religious significance because it was known as Sunnat‑ur‑Rasool‑‑‑Marriage was a civil contract like other civil contracts which required free consent of the parties for its performance, given either by them personally or by their authorised agents in that behalf‑‑‑When a Muslim minor girl was entered into contract of marriage by her father as guardian during her minority she had the option to repudiate that marriage called Khair‑ul‑Baloogh on attaining puberty before age of eighteen years, provided that marriage had not been consummated.
(b) Dissolution of Muslim Marriages Act (VIII of 1939)‑‑‑
‑‑‑S.2(vii)‑‑‑Dissolution of marriage on option of puberty‑‑‑Wife was entitled to dissolution of her marriage by exercising option of puberty if she could prove that marriage had taken place before she attained age of sixteen years; that marriage had not been consummated and that she had repudiated marriage before attaining age of eighteen years‑‑‑Decree of Court was not necessary to invalidate marriage which had been dissolved by wife in excercise of her option of puberty.
Mst. Farangeza v. The State 1995 MLD 1439; Mst. Janat v. Additional District Judge PLD 1981 Lah. 68; Mst. Aslam Khatoon v. Muhammad Azim Khan and others 1991 CLC Note 226 at p. 177 Mulazim Hussain v. Mst. Amino Bibi and another 1994 CLC 1046 and Muhammad Sharif v. Judge Family Court 1998 MLD 1873 ref.
(c) Dissolution of Muslim Marriages Act (VIII of 1939)‑‑‑
‑‑‑‑S.2(vii)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Suit for dissolution of marriage on ground of option of puberty‑‑Plaintiff at time of institution of suit had not attained age of eighteen years and marriage of parties had not been consummated‑‑‑Plaintiff had validly repudiated her marriage in circumstances‑‑‑Judgment of Appellate Court could not be interfered with in absence of any illegality, misreading or non-reading of evidence.
Anwar‑ul‑Haq vice Sardar M. Sarfraz Dogar for Petitioner.
Muhammad Ramzan Khalid for Respondent No. 1.
Date of hearing: 10th February, 2000.
2000 M L D 1893
[Lahore]
Before Maulvi Anwarul Haq, J
MUHAMMAD ASLAM and another‑‑‑‑Appellants
versus
MUHAMMAD AZEEM and 2 others‑‑‑Respondents
Regular Second Appeal No.29 of 1987, heard on 6th April, 2000.
Transfer of Property Act (IV of 1882)‑‑‑
‑‑‑Ss. 122 & 123‑‑‑Specific Relief Act (I of 1877), S.8‑‑‑Gift made on the basis of General Power of Attorney‑‑‑Validity‑‑‑Suit for possession‑‑‑Donor on the basis of General Power‑of‑Attorney executed in his favour by his brother who later on died, had gifted away property owned by his deceased brother to his own son‑‑‑Son of deceased, filed suit for possession in respect of property left by his deceased father‑‑‑Trial Court as well as Appellate Court concurrently decreed the suit holding that the Attorney on the basis of Power‑of‑Attorney executed in his favour by his brother was not authorised to make gift of property in favour of his own son‑‑‑Attorney was though given authority under power‑of‑attorney to make a gift, but no specific authority was mentioned in the said power‑of‑attorney empowering appellant to gift away property of his brother in_ favour of his own son‑‑‑Courts below in circumstances had not committed any error of law in holding that Attorney had no authority to make gift of suit land in favour of his own son on basis of general power‑of‑attorney.
Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818 ref.
Syed Muhammad Ali Gillani for Appellants. Muhammad Ashraf Salimi for Respondents.
Date of hearing: 6th April, 2000.
2000 M L D 1896
[Lahore]
Before Syed Zahid Hussain, J
MUHAMMAD SHARIF‑‑‑Appellant
versus
MUHAMMAD IRSHAD and another‑‑‑Respondents
Regular Second Appeal No.91 of 1983, decided on 8th May, 2000.
(a) Punjab Pre‑emption Ad (I of 1913)‑‑‑‑
‑‑‑‑Ss. 4, 21 & 25‑‑Civil Procedure Code (V of 1908), O. VII, R.11‑‑‑Suit for pre‑emption ‑‑‑Deficiency in court‑fee‑‑Trial Court, on basis of evidence on record found plaintiff to have superior right of pre‑emption, but dismissed suit on ground that neither suit was correctly valued nor proper court‑fee had been paid by the plaintiff‑‑‑Appellate Court taking into consideration circumstances in which plaintiff had put valuation on the plaint, reversed findings of Trial Court and decreed suit‑‑‑Validity‑‑‑Suit was dismissed by Trial Court without giving plaintiff opportunity to make up deficiency in court‑fee, if any, despite the fact that plaintiff had undertaken that he would be ready to pay court‑fee in case of any deficiency‑‑Trial Court, at no stage after determination of correct valuation of suit property allowed plaintiff opportunity to make up the deficiency in court‑fee‑‑‑No mala fide was alleged on part of the plaintiff‑‑‑Plaintiff, in circumstances, could not be straightaway non‑suited for deficient payment of court‑fee, unless there was a determination by Court of the correct valuation and a direction was issued to the plaintiff for making up deficiency in court‑fee and such direction was not complied with‑‑‑Appellate Court, in circumstances, had rightly reversed findings of Trial Court.
Shah Nawaz and 6 others v. Muhammad Yousaf and 3 others 1972 SCMR 179; Siddique Khan and 2 others v. Abdul Shakoor Khan and another PLD 1984 SC 289; Shah Nawaz's case 1972 SCMR 179 and Walayat Khatoon's case PLD 1979 SC 821 ref.
(b) Words and phrases‑
‑‑‑‑‑ Contumacy"‑‑‑Meaning elaborated.
Mian Sher Alam for Appellant.
Abdul Majid Khan for Respondent No. 1.
Date of hearing: 4th May, 2000.
2000 M L D 1900
[Lahore]
Before M. Javed Buttar, J
MUHAMMAD ZAIRAF‑‑‑Petitioner
versus
Mst. SAFIA BIBI and 3 others‑‑‑Respondents
Writ Petition No. 1641 of 1999, heard on 2nd May, 2000.
(a) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑‑‑
‑‑‑‑S.7‑‑‑Divorce‑‑‑Effectiveness‑‑‑Return of notice of divorce sent to Union Council to husband‑‑‑Effect‑‑‑Notice of divorce sent to Union Council was returned to the husband on technical grounds‑‑‑Where the divorce had never been withdrawn by the husband, the same had become effective on the expiry of period of "Iddat"‑‑‑Return of notice of divorce to the husband by the Union Council was inconsequential because the same could not amount to withdrawal of divorce by the husband.
Mst. Fahmida Bibi v. Mukhtar Ahmad and another PLD 1972 Lah. 694; Allah Dad v. Mukhtar and another 1992 SCMR 1273; Muhammad Rafiq v: Ahmad Yar and another PLD 1982 Lah. 825; Dr. Masood Khan v. Chairman, Arbitration Council, Wah and 2 others PLD 1982 Lah. 532; Mst: Basra v. Abdul Hakim and 2 others PLD 1986 Quetta 298 and Ahmad Riaz v. Mst. Qaiser Minhas and others 1994 CLC 2403 ref.
(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑
‑‑‑‑S.5‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Maintenance, past and future‑‑‑Dispute regarding effectiveness of divorce‑‑Family Court, by holding that wife had been divorced prior to the filing of suit for maintenance; decreed the suit to the extent of maintenance for the period of "Iddat", and fixed the allowance for the child for a sum of Rs.500 per months, till he attained the age of majority‑‑‑Appellate Court reversed the findings, of the Family Court qua the divorce and found the wife entitled to the past maintenance allowance and enhanced the allowance of the child from Rs.500 per month to Rs.1,500 per month‑‑‑Validity‑‑‑Where the effectiveness of divorce was established from the record, wife was not entitled to the past maintenance but she was entitled only for the period of "Iddat"‑‑‑Rate of maintenance allowance enhanced by Appellate Court having not been assailed by husband same was maintained.
Muhammad Fazil Butt for Appellant.
Malik Itaat Hussain Awan for Respondents.
Date of hearing: 2nd May, 2000.
2000 M L D 1907
[Lahore]
Before Ghulam Mahmood Qureshi, J
CHIEF SETTLEMENT COMMISSIONER/MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE‑‑‑Petitioner
versus, Ch. TALIB HUSSAIN and another‑‑‑Respondents
Writ Petition No.89‑R of 1999, heard on 23rd June, 2000.
Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑
‑‑‑‑S. 13‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Order passed without lawful authority‑‑‑Urban land allotted against Produce Index Units‑‑‑Urban land to the tune of 432 Produce Index Units was allotted in favour of the respondent at the time when the land was not available for allotment‑‑‑Contention by the petitioner was that the order passed by the Authorities was coram non judice‑‑Validity‑‑‑Authorities had no jurisdiction to allot the building site against Produce Index Units‑‑‑Order was passed by a person who had no power or authority to pass such order and the allotment made in favour of the respondents was without lawful authority arid without jurisdiction‑‑‑Such order was coram non judice and the same was set aside in circumstances.
Muhammad Ramzan and others v Member (Revenue), Chief Settlement Commissioner and others 1997 SCMR 1635 fol.
1991 SCMR 377 and Syed Saifullah v. Board of Revenue, Balochistan through its Member (RJT) and 4 others 1991 SCMR 1255 ref.
Ch. Mushtaq Masood for Petitioner.
Nawab Saeed Ullah Khan for Respondents.
Date of hearing: 23rd June, 2000.
2000 M L D 1925
[Lahore]
Before Riaz Kayani, J
IFTIKHAR ‑‑‑ Petitioner
versus
THE STATE‑‑‑Respondent
Criminal Miscellaneous No.4320/B of 2000, decided on 18th August, 2000.
(a) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/324/148/149‑‑‑Bail‑‑Safeguards to be kept in mind in allowing bail to accused‑‑‑Safeguards made imperative by law in allowing bail to an accused involved in a non‑bailable offence, inter alia were: that the accused if released on bail would not abscond, that he would not tamper with evidence, that he was no more required for police investigation and that there was no likelihood of his repeating the offence.
(b) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/324/148/149‑‑‑Bail‑‑Accused seemed to be a dare devil with an extreme belligerent frame of mind who in police custody by using the handcuffs with which his hands were chained, hit on the head of his adversary and caused him injuries‑‑‑Such a desperado could not be allowed concession of bail as there was every likelihood that he would repeat the offence with magnitude and enormity exceeding all proportions, if set free‑‑‑Accused had destroyed his own case for grant of bail as a result of his wild aggression while in police custody‑‑Bail was declined to accused in circumstances.
M. Iqbal Cheema for Petitioner.
Qazi Zafar Iqbal for the State.
Hafiz Khalil Ahmad for the Complainant.
2000 M L D 1928
[Lahore]
Before Mian Nazir Akhtar, Muhammad Zafar Yasin and Nazir Ahmad Siddiqui, JJ
RAHIM BAKHSH‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Criminal Appeal No.72 of 1995/BWP and Murder Reference No. 12 of 1996/BWP, decided on 4th November, 1999.
(a) Penal Code (XLV of 1860)‑‑
‑‑‑Ss. 338‑E & 302‑‑‑Criminal Procedure Code (V of 1898), S.345‑‑Compounding of offence‑‑‑Conditions precedent for permitting compromise‑‑‑Before allowing composition of the offence Court is duty bound to ascertain whether the compromise is genuine and made by the legal heirs of the deceased with their own free‑will and whether the acquittal of the accused will be in the interest of the parties and the society‑‑‑Once the aforesaid conditions are satisfied and the Court permits composition of the offence, accuses) has to be acquitted by virtue of the provisions of S.345(6), Cr.P.C.‑‑‑Formal confession of guilt by the accused is not a condition precedent for permitting composition of the offence.
(b) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss. 302 & 338‑E‑‑‑Criminal Procedure Code (V of 1898), S.345(6)‑‑‑Compromise ‑‑‑Accused would deserve acquittal on the basis of his genuine Compromise with the legal heirs of the deceased without making a formal confession of his guilt.
Muhammad Ashraf v. The State PLD 1991 Lah. 347 and Muhammad Irshad alias Shada v. The State 1997 SCMR 951 ref.
Aslam Javed Minhas for Appellant.
Saleem Nawaz Abbasi, A.A.‑G. assisted by M.A. Farazi for the State.
Sh. Mahboob Alam for the Complainant.
2000 M L D 1932
[Lahore]
Before Mian Nazir Akhtar and Nazir Ahmed Siddiqui, JJ
ALLAH RAKHA‑‑‑Petitioner
versus
THE STATE‑‑‑Respondent
Criminal Miscellaneous No. 988‑Q of 1999, decided on 23rd February, 2000.
(a) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss. 302/34 & 307/34‑‑‑Criminal Procedure Code (V of 1898), S.561‑A‑‑Direction sought for the sentences to run concurrently‑‑‑Sentences of imprisonment for life and seven years' R.I. awarded to accused under Ss.302, P.P.C. & 307, P.P.C. respectively were to run consecutively‑‑Supreme Court, however, had converted the death sentence of co‑accused awarded to him under S.302, P.P.C. to imprisonment for life and the same was ordered to run concurrently with his substantive sentence of imprisonment awarded under S.307, P.P.C.‑‑Accused and the said co-accused having been tried jointly, the interest of justice required that the same treatment should be meted out to both accused in the matter of sentence‑‑‑High Court was competent to pass such an order in exercise of its inherent powers under S.561‑A, Cr.P.C. to secure the ends of justice-Sentence of imprisonment for life awarded to accused under S.302, P.P.C. was consequently ordered to run concurrently with his sentence of seven years' R.I. under S.307, P.P.C.
Javed Shaikh v. The State 1985 SCMR 153; Juma Khan and another 'v. The State 1986 SCMR 1573; Khan Zaman and others v. The State 1987 SCMR 1382; Mukhtar Ahmad alias Mokha and another v. The State 1999 PCr.LJ 1905; Gul Muhammad and others v. The State 1999 SCMR 2765 and Muhammad Ittafaq v. The State 1986 SCMR.1627 ref.
(b) Criminal Procedure Code (V of 1898)‑‑
‑‑‑‑S. 561‑A‑‑‑Inherent powers of High Court‑‑‑Scope‑‑‑High Court in exercise of its inherent jurisdiction under S.561‑A, Cr.P.C. has power even to correct its own order or to recall an erroneous order in an appropriate case.
Gul Muhammad and others v. The State 1999 SCMR 2765 ref.
Ch. Abdul Ghafoor for Petitioner.
Saleem Nawaz Abbasi, A.A.‑G. for the State.
Date of hearing: 11th November, 1999.
2000 M L D 1935
[Lahore]
Before Mian Nazir Akhtar and Nazir Ahmad Siddiqui, JJ
MUHAMMAD ASHIQ‑‑‑Petitioner
versus
SPECIAL JUDGE, SUPPRESSION OF TERRORIST ACTIVITIES, BAHAWALPUR and 6 others‑‑‑Respondents
Writ Petition No. 1106 of 1999/BWP, decided on 3rd November, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 173‑‑‑Penal Code (XLV of 1860), S.302/148/149‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Discharge of accused on police report by Trial Court after taking cognizance of the case ‑‑‑Validity‑‑Trial Court had initially summoned all the accused and distributed the necessary copies of statements to them with a view to conduct the trial‑‑‑Case ‑had also been fixed for framing of the charge‑‑‑Court did not choose to await submission of the complete challan and it consciously proceeded to commence the trial on the basis of the interim report‑‑‑Trial Court, thus, had already taken cognizance of the offence and it was no longer open to it to entertain a fresh police report and discharge the accused‑‑‑Impugned order was consequently set aside with the direction to Trial Court to proceed with the trial of all the accused including the discharged accused in accordance with law.
Wazir v. The State PLD 1962 Lah. 405 and Muhammad Aslam and another v. Additional Secretary to Government of N.‑W.F.P. Home and Tribal Affairs Department and 4 others PLD 1987 SC 103 ref.
Sardar Ahmad Khan for Petitioner.
Muhammad Farrukh Mahmood and Muhammad Umair Mohsin for Respondents Nos.3 to 6.
M.A. Farazi for the State.
2000 M L D 1938
[Lahore]
Before Mian Nazir Akhtar, J
MUHAMMAD AFZAL‑‑‑Petitioner
versus
AHMAD MUBARIK, S.S.P., BAHAWALPUR‑‑‑Respondent
Criminal Original No. 208 of 1999/BWP, decided on 11th November, 1999.
Contempt of Court Act (LXIV of 1976)‑‑‑
‑‑‑‑S. 3/4‑‑‑Contempt proceedings‑‑‑Allegation of violating High Court order‑‑‑Accused‑‑‑Police Officer had realized his mistake and repeatedly expressed his sincere regrets, tendered unconditional apology and undertaken to be careful in future‑‑‑Accused had complied with the order of High Court passed in the Constitutional petition and also expressed his willingness to appoint other candidates as constables who had obtained the required marks‑‑‑According to the report of D.I.‑G. accused was a dedicated and hard‑working police officer and his work, character and conduct were above board‑‑‑High Court taking a lenient view in the matter in the circumstances had accepted the unconditional apology tendered by the accused with a warning to him to be more careful in future.
Sardar Mahmood Iqbal Khakwani for Petitioner.
Saleem Nawaz Abbasi, A.A.‑G.
2000 M L D 1941
[Lahore]
Before Riaz Kayani and Muhammad Akhtar Shabbir, JJ
RABNAWAZ and another‑‑‑Appellants
versus
THE STATE‑‑‑Respondent
Criminal Appeal No. 93 of 1994/BWP, heard on 17th July, 2000.
(a) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss, 302/34 & 337‑A(ii)/34‑‑‑Appreciation of evidence‑‑‑Ocular account of occurrence had been furnished by the eye‑witnesses, one of whom was an injured witness whose presence at the scene of occurrence could not be denied which had even been admitted by the accused‑‑‑Motive for the incident had been proved by the prosecution which was also admitted by both sides‑‑‑Main accused although had caused the injury on the head of the deceased from the wrong side of his hatchet, yet he had used tremendous force which was grossly in excess of right of exercise of self‑defence available to him‑‑‑Accused, therefore, had rightly been sentenced to imprisonment for life for the murder of the deceased‑‑‑Conviction of accused was, however, altered from S.302, P.P.C. to S, 302(c), P.P.C.‑‑‑Accused having not been found vicariously liable for causing injuries to the prosecution witness he was acquitted of the charge under S.337‑A(ii), P.P.C.
(b) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 100‑‑‑When the right of private defence of the body extends to causing death‑‑‑Apprehension of death or grievous hurt ‑‑‑Connotation‑‑Apprehension is not merely a state of mind or an inchoate fact, but it is a tangible act corporeal in nature depending mainly upon the type of weapon used by the assailant, past enmity and the assumed threatening posture.
G.N. Gohar for Appellant.
M.A. Farazi for the State.
Date of hearing: 17th July, 2000.
2000 M L D 1948
[Lahore]
Before Syed Jamshed Ali, J
Chaudhry REHMAT ALI ‑‑‑Appellant
versus
ABDUL KHALIQ through his Legal Heirs and another‑‑‑Respondents
Regular Second Appeal No. 54 of 1995, heard on 12th July, 2000.
(a) Benami‑‑‑
‑‑‑‑Meaning and origin‑‑‑Word "benami" is a Persian compound word made up of two different words namely. "Be" which means "without" and "Naam" which denotes "name" ‑‑‑Benami literally means without a name i.e. nameless or fictitious and the same is used to denote transaction which is really done by a person without using his own name but under the name of another.
(b) Benami transaction‑‑‑
‑‑‑‑ Benamidar‑‑‑Meaning and scope ‑‑‑Benamidar is an owner of property and his ownership is subject to the overriding title of the true owner‑‑‑Such owner can pass title to a third person and if that person has no knowledge of benami nature of his title, such person acquires a good title even against the real owner.
(c) Transfer of Property Act (IV of 1882)‑‑‑
‑‑‑‑S. 41‑‑‑Ostensible owner, title of‑‑‑Scope‑‑‑Title of such owner remains intact unless it is so recognzied by the ostensible owner either by his own act or on account of the process of adjudication before a Court of competent jurisdiction.
(d) Punjab Pre‑emption Act (I of 1913)‑‑‑
‑‑‑‑S. 21‑‑‑Transfer of Property Act (IV of 1882), S.54‑‑‑Civil Procedure Code (V of 1908), S.100‑‑‑Second appeal ‑‑‑Pre‑emption suit ‑‑‑Benami transaction‑‑‑Disputed land was sold by Benamidar to the real owner of the land who was vendee in the suit filed by the pre‑emptor ‑‑‑Such transaction whether not subject to pre‑emption right‑‑‑Trial Court decreed the suit of the pre‑emptor while the same was dismissed by the Lower Appellate Court in appeal filed by the vendee ‑‑‑Validity‑‑‑Transfer of ownership under the provisions S.54, Transfer of Property Act, 1882, included transfer of Benami ownership to the real owner‑‑‑Where Benamidar by disputed mutation of suit land had transferred ostensible ownership in favour of the vendee to the extent of 1/2 share in the suit property, such transfer amounted to sale for the purposes of the pre‑emption suit‑‑‑Finding of the Lower Appellate Court that the transaction vide the disputed mutation was not pre‑emptible was not sustainable‑‑‑Judgment and decree of the Lower Appellate Court was set aside in circumstances.
Abdul Aziz Qureshi for Appellant.
Muhammad Sarwar Awan for Respondents.
Date of hearing: 12th July, 2000.
2000 M L D 1952
[Lahore]
Before Muhammad Javed Buttar, J
ZAHID MAHMOOD and another---Petitioners
versus
MUHAMMAD SAWAR---Respondent
Civil Revision No.409-D of 1999, decided on 15th May, 2000.
(a) Specific Relief Act (I of 1877)---
----S.9---Ejectment of tenant---Suit for recovery of possession and recovery of rent due---Ejectment was sought on personal need of the plaintiff and wilful default on the part of the defendant---Plea raised by the defendant was that the plaintiff had been purchasing daily use items from the defendant and the amount of rent was adjusted towards the price of the items purchased---Both the Courts below had concurrently decreed the suit of the plaintiff--Validity---Where there was no agreement between the parties that the price of the items so purchased would be adjusted towards the payment of rent, the Lower Appellate Court had rightly found that the defendants had a right to file a suit for the recovery of his amount---Judgments and decrees of the Courts below were not interfered with.
(b) Civil Procedure Code (V of 1908)---
----O. XLI, R.27---Additional evidence, production of---Failure to produce the documents in Trial Court---Documents required to be produced did not bear the signatures of the respondent---Effect---Mere production of such documents would not advance the cause of the petitioners in circumstances.
(c) Transfer of Property Act (IV of 1882)----
-----S.106---Vacation of premises---Failure to issue notice under S.106, Transfer of Property Act, 1882, to tenant---Effect---Failure to issue such notice prior to institution of a suit is not mandatory and suit does not become non-maintainable in absence of such notice---Institution of suit itself constitutes a sufficient notice to the tenant for vacation of the premises.
Teja Singh v. Firm Kalyan Das Chet Ram and another AIR 1925 Lah. 575 and Mehra,(CL) & Sons v. Kharak Singh (1968) 70 PLR 55 ref.
(d) Transfer of Property Act (IV of 1882)---
----S.106---Civil Procedure Code (V of 1908), S.115---Revision---Raising new plea about non-service of notice under S.106, Transfer of Property Act, 1882---Such plea was raised for the first time before High Court in revision petition---Validity---Plea so raised was not related to any question of law but was of fact and the same had to be asserted and thereafter legal consequences could flow therefrom---Plea was not permitted to be raised accordingly.
Muhammad Yousaf v. Mien Faiz Muhammad NLR 1981 Civil 45 (Lahore) ref.
Munir Ahmad Kayani for Petitioners.
Itat Hussain Awan for Respondents.
2000 M L D 1957
[Lahore]
Before Tanvir Ahmad Khan, J
Messrs S.P.R.L. REHMAN BROTHERS and another---Petitioners
versus
JUDGE BANKING COURT NO.II, LAHORE and another---Respondents
Writ Petitions Nos. 10183'and 19495 of 1999, heard on 23rd June, 2000.
(a) Civil Procedure Code (V of 1908)--
----O.XXI, Rr. 84 & 85---Purchase money; deposit of---Failure to deposit auction money as prescribed by the provisions of Rr.84 & 85 of O.XXI of C.P.C.---Effect---Auction-purchaser is bound to deposit one-fourth of the purchase money with the Court Auctioneer immediately with the fall of hammer failing which the property is liable to be resold---Remaining three-fourth amount is to be deposited with the Court within 15 days from the date of the sale.
(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---
----S. 14---Civil Procedure Code (V of 1908), OXXI, Rr.84, 85 & 90--Constitution of Pakistan (1973), Art.199---Constitutional petition--Execution of decree---Auction of mortgaged property---Deposit of cheque for the one-fourth amount of the purchase price at the time of auction---Property worth more than a crore of rupees was sold away for an amount of Rs.40 lacs---Despite the fact that the judgment-debtor had deposited the full decretal amount with the Bank, the Court auctioneer conducted the auction--Judgment-debtor filed objection petition before the Executing Court but the same was declined---Validity---Court Auctioneer conducted the auction in hasty manner and did not ensure that the legal requirements for the same were followed---Auction-purchaser did not deposit one-fourth of the bid money at the spot as required under the law---Where the auction proceedings as well as the report by the Auctioneer did not inspire confidence, the same and its consequent confirmation was without lawful authority and was of no legal effect ---Decretal amount having been paid by the judgment-debtor, High Court directed the Bank functionaries to return the papers of the judgment-debtor if nothing was due against him.
Brig. (Retd.) Mazhar-ul-Haq and, another v. Messrs Muslim Commercial Bank Ltd., Islamabad and another PLD 1993 Lah. 706; Messrs Dawood Flour Mills and others v. National Bank of Pakistan 1999 MLD 3205; I4udabia Textile Mills Ltd. v. Allied Bank of Pakistan Ltd. PLD 1987 SC 512`; National Bank of Pakistan v. Nasir Industries 1982 CLC 388 and Manilal Mohanlal Shah v. Sardar Sayed Ahmad AIR 1954 SC 349 ref.
Iftikhar Ullah Malik and Ms. Khalida Abid for Petitioners.
Ashar Elahi for Respondent.
Date of hearing: 23rd June, 2000.
2000 M L D 1962
[Lahore]
Before Tanvir Ahmad Khan, J
ATTA ULLAH KHAN NIAZI, ADVOCATE‑‑‑Appellant
versus
Rao MUHAMMAD USMAN KHAN, ADVOCATE and 8 others‑‑‑Respondents
Writ Petition No. 12104 of 2000, heard on 11th July, 2000.
Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑
‑‑‑‑S.56‑‑‑Punjab Rules of Business of Bar Association (Memorandum of Association), R.46‑‑‑Rules of Bar Association Model Form, R.30‑‑‑ Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Election of Bar Association‑‑‑Suspension of such election by Member of Provincial Bar Council‑‑‑Dispute regarding result of election‑‑‑Parties contested election for the seat of President of their Bar Association‑ ‑Election Board constituted by the outgoing President for holding the election consisted of senior members of the Bar Association‑‑‑Chairman of the Provincial Bar Council, on application of the respondent/successful candidate, appointed one member of the Bar Council to supervise the election‑‑‑Such appointment was made on the same day by the Chairman without hearing the petitioner‑‑‑Disputed result of the election was signed by the Chairman of the Election Board and Member of Bar Council whereas the remaining two members of the Election _ Board refused to sign the same‑‑‑Petitioner claimed to be a successful candidate assailed the result of the election before the Executive Committee of Provincial Bar Council‑‑‑Executive Committee after hearing the parties and recording the evidence of the Chairman, Election Board, dismissed the appeal‑‑‑Validity‑‑‑Election was to be conducted jointly by the Election Board and under the provisions of R.46 of Punjab Rules of Business of Bar Association (Memorandum of Association), the Board was to decide all issues relating to election‑‑‑Appointment of Member of Bar Council to supervise the election under the provision of R.30 of Rules of Bar Association Model Form, could only be made on application of the respective Bar Association‑‑‑Where appointment of Member of Bar Council was made on application of the respondent candidate and was made on the same day without giving any opportunity of hearing to any party and without Looking to the fact whether such application was maintainable under any law or rules, such appointment was illegal‑‑‑High Court, keeping in view the tremendous bickering among the Members of that Bar Association and to have transparent election, directed Vice‑Chairman, Provincial Bar Council or in his absence Chairman, Executive Committee, to appoint two or three members of the Bar Council of that District to conduct the election of the .Bar Association‑‑‑Order of Executive Committee of Bar Council whereby the appeal of the petitioner was dismissed was set aside in circumstances.
Farooq Amjad Mir for Petitioner.
Rana Muhammad Anwar for Respondent No.3.
Rana Muhammad Arif for Respondent No.6. Fauzi Zafar, A.A.‑G.
Date of hearing: 11th July, 2000.
2000 M L D 1967
[Lahore]
Before Mrs. Fakhar-un-Nisa Khokhar, J
Mst. RANI---Petitioner
versus
BILAL AHMAD and 2 others---Respondents
Writ Petition No.3176 of 2000, heard on 15th July, 2000.
(a) Guardians and Wards Act (VIB of 1890)---
----Ss.6 & 17---Expression "law to which, the minor is subject" in S.6, Guardians and Wards Act, 1890---Meaning---Said expression as visualized by Guardians and Wards Act, 1890, means law as given by the Holy Qur'an' and Sunnah---Word "law" appearing in the expression is not to be equated to an opinion or interpretation while discussing "Nass" of the Holy Qur'an or Sunnah.
(b) Guardians and Wards Act (VIII of 1890)---
----Ss.4(2) & 25---Proceedings under S.25, Guardians and Wards Act, 1890 against real mother---Scope---Where the minors were continuously in the custody of their mother who according to S.4(2) of Guardians and Wards Act, 1890 was their guardian, provisions of S.25 of Guardians and Wards Act, 1890 were not applicable.
(c) Muhammadan Law-
---- Custody of minor---Islam does not recognize custody of mother as illegal.
(d) Muhammadan Law---
---- Hizanat---Meaning---Hizanat has come from the word Hizan lap of mother.
(e) Guardians and Wards Act (VIII of 1890)---
----S.25---Custody of minor---Welfare of minor, determination of---Power of Guardians Court---Scope---Approach of the Guardian Court, while deciding custody of minor, should by dynamic and not dormant---While determining welfare of minor Guardian Court has unlimited and unfettered powers of parental jurisdiction---Court has to see the age, sex, environment under which the minor is being brought up and all the attending circumstances, position of parties and also the law under which the minor is subject---Where the Court comes to the conclusion that neither father nor mother qualify to be the guardian of the minor, then other persons relevant to be appointed as guardians as maternal grandmother etc., under the Islamic law may be considered.
(f) Guardians and Words Act (VIII of 1890)---
---S.25---Custody of minor---If the mother remarries a stranger, she is deprived from the custody of children.
(g) Muhammadan Law---
--- Hizanat---Adulterous woman, right of---Scope---Such woman loses right of Hizanat; where she has asked for forgiveness, such woman has right of custody.
Kitab-al-Fiqah Part 4 by Abdur Rehman Al-Jaziri, p. 17 ref.
(h) Constitution of Pakistan (1973)---
----Art.199---Muhammadan law---Custody of destitute children---Writ of mandamus can be issued to the Government to act as "Mutwalli" of destitute children.
(i) Guardians and Words Act (VII of 1890)---
----S.25---Custody of minor---Mother of minor re-marrying. a stranger to minor---Loss of preferential right of such mother to the custody of minor---. Validity---Right of such mother to the custody of the minor is not, lost absolutely---Where there is another relation of the minor who possesses a right under the Muslim Law to the custody of the person of the minor and to whom the welfare of the minor can be safely and properly entrusted, such a female relation can claim the custody of child as of right.
(j) Guardians and Wards Act (VIII of 1890)----
----Ss.17 & 25---Custody of minor---Guardian Court, jurisdiction of--?Scope---While determining custody of minors the Guardian Court could only look into the material facts namely whether the custody of mother of the minor was illegal or whether it was in the paramount welfare of the minors to remove them from such custody---Where both the parents of the minors belonged to the same social set-up, the Court had to look as to for what reasons the custody was taken from the mother and entrusted to the father.
(k) Muhammadan Law---
----Custody of minor---Preferential right of custody---Scope---No bar is placed in the Holy Qur'an and Sunnah for mother or even father to hold the custody of minor nor there is any provision which stipulates that the preferential right of custody lies with father or mother or in their absence grand-parents or uncles or cousins are eligible to claim custody.
Holy Qur'an: Chap. 4 and Al-Nisa, Verse 11 ref.
(1) Muhammadan Law--?
---Hizanat---Property of minor---Duties and obligations of guardian.
Even the Holy Qur'an makes it obligatory upon the parents and guardians of orphans to keep the property of children under strict supervision and should be handed over to them only when they come of age and Chapter 4, Verse 6 further puts an obligation on the guardian that before handing over property they must be tested that they have acquired the maturity of intellect alongwith puberty, therefore, the Holy Qur'an guarantees the rights and protection of children and makes it obligatory upon the parents, society, State or Courts which represent the State and society.
Holy Qur'an: Chap. 4, Verse 6 ref.
(m) Guardians and Wards Act (VIIZ of 1890)---
----Ss. 25---Hizanat---Status of Wali, determination of---Jurisdiction of Court---Factors required for such determination---Scope---Concept of Wali has been given by the Holy Qur'an in respect of Hizanat and Wilayat, but status of Wali has not been conferred either upon father or mother and has been left open to the Court to determine and give status of Wali to a -person to secure welfare of minor in case of dispute---Court can make the suitable orders and arrangements to secure the welfare of children of broken homes or destitute children or the children of abnormal circumstances according to prevailing circumstances---Choice is given to the Court to decide cases on the basis of its peculiar facts in view of true determination of justice, equity, Adl and Ehsan.
(n) Guardians and Wards Act (VIII of 1890)---
----S. 25---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Custody of minor---Concurrent findings of both the Courts below---Mother of the minor had remarried and was living a pious life was from red light area---Father of the minor at the time of divorce to the mother of the minor executed a relinquishment deed regarding custody of the minors in favour of the mother---Father at the time of marriage knew about her social status as he himself was from the same social set-up and was conscious about the after-effects of the marriage---Father being a man could have pulled her out of sinful life giving her all the protection and decencies of matrimonial life and providing his children healthy atmosphere quite away from her social set-up---Both the Courts below non-suited the mother of the minor because of her being "prostitute"---Validity---Father of the minor who had failed to pull out his wife from the sinful life, such person was most undeserving one to be a Wali of the minor---Other relatives also stood disqualified to obtain the custody---Judgments and decrees of both the Courts below were set aside---High Court directed that the minor would remain in the custody, direct supervision and control of their mother in circumstances
Fiqah Islam by Syed Amir. Ali, p.159; 1996 SCMR 69 and Amar Ilahi v. Mst. Rashida Akhtar PLD 1955 Lah. 412 ref.
(o) Woods and phrases---
----"Hizanat"---Meaning---Hizanat has come from the word Hizan (lap of mother).
Kh. Saeed-uz-Zaffar and Muzammal Akhtar for Petitioner.
Ch. Shazib Saeed for Respondent.
Syed Afzal Haider, Q.M. Saleem, Sardar M. Latif Khan Khosa and S.M. Almas Ali: Amicus curiae.
Dates of hearing: 11th 12th and 15th July, 2000.
2000 M L D 1989
[Lahore]
Before Malik Muhammad Qayyum, J
MAPLE LEAF CEMENT FACTORY LIMITED‑‑‑Petitioner
versus
COLLECTOR OF CUSTOMS, CUSTOMS HOUSE, FAISALABAD ‑‑‑Respondent
Writ Petition No.6794 of 2000, decided on 28th July, 2000.
(a) Customs Act (IV of 1969)‑‑‑
‑‑‑‑‑S. 32(2)‑‑‑Notification No. S.R.O. 484(1)/92, dated 14‑5‑1992‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Promissory estoppel, doctrine of‑‑‑Applicability‑‑‑Notice for recovery of duty on the basis of Customs General Order‑‑‑Benefit of Notification No.S.R.O. 484(1)/92, dated 14‑5‑1992‑‑‑Letter of Credit was opened by the petitioner while the Notification was in field‑‑‑Authorities demanded the duty from the petitioner on the ground that the machinery imported by the petitioner, was being locally manufactured, therefore, the benefit of the Notification could not be extended to the petitioner‑‑‑Contention by the petitioner was that when Letter of Credit was opened in favour of the foreign supplier the machinery was not being manufactured locally ‑‑‑Validity‑‑Where Central Board of Revenue had itself conceded that some parts of the machinery were being manufactured locally while other parts were not being manufactured here, therefore, the Customs General Order‑ issued by the Central Board of Revenue had no effect‑‑‑Determination that the goods were being manufactured locally could only be arrived at by the Central Board of Revenue after factual inquiry with which the concerned persons should have been associated‑‑‑By issuing Notification or Customs General Order, the rights which were vested in the petitioner on having entered into a firm contract with foreign supplier could not be taken away and the doctrine of promissory estopple was applicable‑‑‑Notice issued by the Central Board of Revenue was without lawful authority an was of no legal effect in circumstances.
Messrs Army Welfare Sugar Mills td. v. Federation of Pakistan and others 1992 SCMR 1652; Suhail Jute Mills Ltd. and others v. Federation of Pakistan and others PLD 1991 SC 329: Al‑Samrez Enterprises v. The Federation of Pakistan 198& SCMR 1917; Messrs M.Y. Electronics Industries (Pvt.) Ltd. v. Government of Pakistan and others 1998 SCMR 1404: Collector of Customs and others v . Ravi Spinning Ltd. and others 1999 SCMR 412; Messrs Jullan Hoshang Dinshaw Trust and others v. Income Tax Officer and others 1992 SCMR 250; M/s. Central Insurance Co. and others v. The Central Board of Revenue, Islamabad and others 1993 SCMR 1232; Collector of Customs. v. Messrs S.M. Ahmad & Company (Pvt.) Ltd., Islamabad 1999 SCMR 138 and Maple Leaf Cement Factory Limited v. Federation of Pakistan and others 1999 PTD 3907 ref.
(b) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Issuance of show cause notice‑‑‑Constitutional petition is maintainable against issuance of a show‑cause notice.
Edulji Dinshaw Limited v. Income Tax Officer PLD 1990 SC 399; Gatron Industries Ltd. v. Government of Pakistan 1999 SCMR 1072; Attock Cement Pakistan v. Collector of Customs, Collectorate of Customs and Central Excise, Quetta and others 1999 PTD 1892 and Ghazi Fabrics International Limited, Gulberg‑III, Lahore v. Water and Power Development Authority, Lahore and others PLD 2000 Lah. 349 ref.
Raja Muhammad Akram and Salman Akram Raja for Petitioner
Muhammad Hussain for Respondent.
Date of hearing: 28th June, 2000.
2000 M L D 2023
[Lahore]
Before Ali Nawaz Chowhan, J
SAEED IQBAL BHATTI---Appellant
versus
THE STATE---Respondent
Criminal Appeals Nos, 173 and 186 of 1999, heard on 1st August, 2000.
(a) Penal Code (XLV of 1860)---
----S. 302---Grave and sudden provocation, plea of---Validity---Accused had not made deposition under S. 540(2), Cr.P.C in support of his plea and version---No evidence was produced by accused about the alleged notoriety of the family or his in-laws and had failed to provide a description of the person whom he allegedly had seen emerging from the room of his in-laws and with whom as per his allegation, his wife, the deceased, was having intimacy---Version of accused, in circumstances, was not believable, being an afterthought.
(b) Penal code (XLV of 1860)---
----S. 308(2)---Accused was husband of the deceased and his plea of grave and sudden provocation had been disbelieved---Case of the accused was liable to Qisas in circumstances.
(c) Penal Code (XLV of 1860)---
----S. 308(2)---Criminal Procedure Code (V of 1898), S. 544-A---Diyat being blood money and a compensation to be paid in the case of Qatl-i-Amd, any further compensation under S.544-A, Cr.P.C. would not be attracted--Principles.
Section 308 (2), P.P.C. only speaks of liability to pay the Diyat and of imprisonment under Ta'zir which may extend to 14 years. In the present case accused was also sentenced under section 544-A, Cr.P.C. and asked to pay additional compensation.
Held, Section 308 of the Pakistan Penal Code already prescribes the liability to pay Diyat only in case of the non-enforcement of Qisas, as well, as the punishment of imprisonment for a term which may extend to 14 years as Ta'zir. Diyat is the blood money and is a compensation which .is to bed paid in the case of Qatl-i-Amd and nothing is said beyond this in this section. Under the circumstances, any further compensation under section. 544-A of the Cr.P.C. will not be attracted.
Al-Qur'an: Al-Baqr, Aiyat No. 178 quoted.
Ch.- Zamurrad Hussain for Appellant.
Muhammad Munir Paracha for the Complltant. Mobeen Ahmed for the State.
Date of hearing: 1st August, 2000.
2000 M L D 2030
[Lahore]
Before Maulvi Anwarul Haq, J
MUHAMMAD SHAFI‑‑‑Petitioner
versus
SURRAYA BEGUM and 7 others‑‑‑Respondents
Writ Petition No. 16451 of 2000, decided on 18th August, 2000.
(a) Muhammadan Law‑‑‑
‑‑‑‑Maintenance‑‑‑Father is bound to maintain his daughter till such time she is married.
Principles of Mahomedan Law by D.F. Mulla ref.
(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑
‑‑‑‑S.5 & Sched‑‑‑Maintenance‑‑‑Maintenance of daughters‑‑‑Role of legai fraternity in maintenance cases‑‑‑Decree of maintenance was passed against the father regarding maintenance of his daughters by Family Court on 9‑1‑1993 and the same was affirmed by the Lower Appellate Court on 15‑7‑1996‑‑‑Despite having failed .in both the Courts below, father did not comply with the decree‑‑‑Effect‑‑‑Constitutional petition having no merit and suffered from laches, no interference was made in the judgments and decrees of both the Courts below‑‑‑High Court desired that legal fraternity should take note of the cases of the nature and to tender proper counsel to the clients, and not to make them go from pillar to post to recover maintenance which a father was ordained to pay not only under the law of the land but under the Islamic law as well.
Fazal Abbas Bukhari for Petitioner.
2000 M L D 2039
[Lahore]
Before Maulvi Anwarul Haq, J
KOHINOOR (GUJJAR KHAN) MILLS LTD‑‑‑Petitioner
versus
ISLAMABAD ELECTRIC SUPPLY CO. and others‑‑‑Respondents
Writ Petition No. 137 of 2000, heard‑on 24th August, 2000.
(a) Electricity Act (IX of 1910)‑‑‑
‑-‑‑S. 24(1)‑‑‑Failure to pay electricity charges‑‑‑Discontinuance of electric supply‑‑‑Process to be adopted by licensee against the consumer‑‑‑Subject to service of notice of not less than seven clear days in writing the licensee can adopt the process to recover the amount by filing a suit to recover the amount as provided in Electricity Act, 1910; cut off supply of energy to such premises, and any other premises other than domestic premises running distinctly in the name of such consumers.
(b) Electricity Act (IX of 1910)‑‑‑
‑‑‑‑S. 24(1)‑‑‑Term "premises should be running distinctively in the name of such consumer"‑‑‑Connotation‑‑‑Non‑payment of electric dues=‑Discontinuance of electric supply to any other premises‑‑‑Scope‑‑‑Where the same consumer in the same name has obtained electric connection in two different premises and there is default in respect of one such premises, then as a result of such default, the other premises can also be disconnected under the provision of S.24(1) of Electricity Act, 1910.
(c) Electricity Act (IX of 1910)‑‑‑
‑‑‑‑S. 24(1)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Discontinuance of electric supply‑‑‑On the default of one of the Directors of the petitioner‑Company for some other premises electric supply to the petitioner‑Company was discontinued‑‑‑Contention of the Authority was that supply to the other premises could be discontinued for recovery of the outstanding amount‑‑‑Validity‑‑‑Both the consumers being two different persons Authority had no lawful right to recover the amount from the petitioner‑Company or to discontinue its electric supply in terms of S.24(1) of the Electricity Act, 1910‑‑‑Authority was directed by High Court to restore of electricity to the premises of the petitioner.
Messrs Pak. Ice Factory v WAPDA and others 1987 MLD 2277 distinguished.
E.B.M. Company Ltd. v. Dominion Bank AIR‑1937 PC 279; Ikram Bus Service and others v. Board of Revenue, West Pakistan arid others PLD 1963 SC 564; Tariq Saeed Saigal v. The District Excise and Taxation Officer, Rawalpindi 1982 CLC 2387 and Pakistan v. Pak Chrome Leather Company Ld. PLD 1983 Lah. 326 ref..
Raja Muhammad Akram for Petitioner.
Syed Moazzam Ali Rizvi for Respondent
Dates of hearing: 22nd and 24th August, 2000
2000 M L D 2057
[Lahore]
Before Mian Nazir Akhtar; J
DESCON ENGINEERING LIMITED‑‑‑Appellant
versus
PUNJAB ENGINEERING COMPANY LTD. and another‑‑‑Respondents
First Appeal from Order No. 198 of 1990, heard on 22nd May, 2000
Trade Marks Act (V of 1940)‑‑
‑‑‑‑Ss. 24 & 76‑‑‑Registration of trade mark‑‑‑Phonetic similarity in two trade marks‑‑‑Appellant's opposition was disallowed by Registrar of Trade Marks and trade mark of the respondent was registered‑‑‑Trade Marks of both the parties were phonetically similar and were in the same class‑‑Effect‑‑‑Where the Registrar failed to advert to the tests and the criteria laid down by the Courts for determining the question of similarity of a trade mark with another and the possibility of confusion and deception, in accordance with the law, such order of the Registrar was arbitrary‑‑‑With the consent of the parties the order passed by the Registrar was set aside and the case was remanded for passing a fresh order on merits in accordance with law.
Cecil Decordova and others v. Vick Chemical Company PLD 1951 PC 108; A. & F. Pears Ltd. v. Ghulam Haider and another PLD 1959 (W.P.) Karachi 154; New Light Chemical Industries v. Registrar of Trade Marks and another PLD 1963 Dacca 75; Messrs Zenith Laboratory (Pak.) Ltd. v. Messrs British Drug Houses Ltd., England PLD 1970 Dacca 772; Tektronic Incorporated v. M. Abdul Mannan PLD 1973 Kar. 14; Muhammad Ismail through Mst. Shamim Akhtar and 8 others v. Messrs Soofi Soap Factory PLJ 1973 Lah. 208; Sony Kabushiki Kaisha, Japan v. The Assistant Registrar of Trade Marks, Karachi PLD 1974 Kar. 136; Glaxo Laboratories Ltd., England v. Assistant Registrar, Trade Marks, Karachi and another PLD 1977 Kar. 858; Ekhlas Ahmad v. Dae Health Laboratories Ltd., London and another 1980 SCMR 625; Seven‑Up Company v. Deputy Registrar of Trade Marks and another 1987 MLD 91; Kabushiki Kaisha Toshiba (also trading as Toshiba Corporation) v. Ch. Muhammad Altaf (trading as Murad Industries (Regd.)) and another PLD 1991 SC 27; Zakauddin v. Muhammad Zahid and 2 others PLD 1993 Kar. 766; Messrs Chas A. Mendoza v. Syed Tausif Ahmad Zaidi and 2 others PLD 1993 Kar. 790; Indus Pencil Industries (Private) Limited v. Vikar Industries (Private) Limited PLD 1999 Kar. 281; Bandenawaz Ltd. v. Registrar of Trade Marks, Karachi and another PLD 1967 Kar. 492; Midland Electric Manufacturing Company Ltd. v. The Registrar of Trade Marks and another 1987 CLC 1539; National Detergents Limited v. Assistant Registrar of Trade Marks‑II 1989 MLD 1137; Unilever Ltd. v. Sultan Soap Factory Ltd. and another 1989 MLD 3786 and Nippon Paint Co. Ltd. v. Registrar of Trade Marks 1993 MLD 1094 ref.
Farrukh Irfan and Mueen Qamar for Appellant.
Hafiz Abdur Rehman Ansari for Respondent No Yawar Ali Khan, D.A.‑G. for Respondent No.2
Dates of hearing: 9th, 15th December, 1999, 12th and 22nd May 2000
2000 M L D 33
[Peshawar]
Before Abdur Rauf Khan Lughmani, J
HABIB & SONS GOVERNMENT CONTRACTORS through Habib Khan‑‑‑Appellant
versus
GOVERNMENT OF N.‑W.F.P. through Collector, Tank and 8 others‑‑‑Respondents
Regular First Appeal No. 14 of 1997, decided on 24th May; 1999.
Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S. 96, O. VII, R. 11 & O. VI, R.6‑‑‑Arbitration Act (X of 1940), S.34‑‑Suit for declaration of title and recovery‑‑‑Arbitration clause in agreement‑‑Effect‑‑‑No objection was raised with regard to non‑maintainability of suit in terms of‑ arbitration clause of the agreement‑‑‑Plaint was rejected under O. VII, R.11 read with O. VI, R.6, C. P. C., holding that failure to comply with arbitration clause of the agreement was fatal to the progress of suit‑‑‑Validity--Held, it was for the respondents to plead violation of arbitration clause of‑the agreement and in point of fact before filing written statement, they should have raised objection as required under S. 34, Arbitration Act, 1940‑‑‑Respondents could seek stay of the suit before filing written statement by moving appropriate application‑‑‑Respondent having lost the opportunity, judgment and decrees of Trial Court were set aside and case was remanded to Trial Court for disposal in accordance with law.
PLD 1987 Kar. 219; 1988 CLC 1169 and 1993 CLC 583 rel.
Dost Muhammad Khan for Appellant. S. Saeed Hassan Sherazi, A.A.‑G.for Respondents.
Date of hearing: 24th May, 1999.
2000 M L D 98
[Peshawar]
Before Shah Jehan Khan, J
GUL WALI --- Petitioner
versus
QAZA KHAN and another---Respondents
Criminal Miscellaneous Bail Application No.288 of 1997, decided on 5th December, 1997.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860); S. 324/34---Bail, grant of---Injuries sustained by complainant did not disclose any offence falling within the prohibitory clause of S. 497(1), Cr.P.C.---Parties were related,inter se and had filed counter-versions against each other---Premeditation on the part of accused to commit Qatl-i-Amd of the complainant and the fact whether he was aggressor, were to be determined at the trial---Dagger having been produced by the complainant did not provide a cogent corroboration to the case against accused--Investigation in the case having been concluded, detention of accused in jail could not serve any useful purpose---Accused was allowed bail in circumstances.
HFarooq Masood Ahmad for Petitioner.
M. Jehangir for the State
Waheed Anjum for the Complainant.
2000 M L D 663
[Peshawar]
Before Jawaid Nawaz Khan Gandapur, J
KHURSHID ANWAR ‑‑‑Applicant
versus
ARIFULLAH and 5 others‑‑‑Respondents
Criminal Miscellaneous Application No. 1115 of 1999, heard on 22nd November, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑Ss.497(5) & 498‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.5/10/11‑‑‑Bail, cancellation of‑‑‑Reasonable grounds existed for believing that accused, prima facie, was connected with commission of offence charged with‑‑‑Accused was specifically charged by abductee aged about 15/16 years of age for having committed rape on her‑‑‑Statement of abductee recorded under 5.164, Cr.P.C. was fully supported by medical report‑‑‑Accused, in circumstances, was not entitled to be extended benefit of concession of pre‑arrest bail‑‑‑Pre‑arrest bail granted to accused, was cancelled, in circumstances.
Jehanzeb Khan for Applicant.
Isa Khan for Respondents.
Date of hearing: 22nd November, 1999.
2000 M L D 669
[Peshawar]
Before Jawaid Nawaz Khan Gandapur, J
Mat. BASRI --- Petitioner
versus
RIZWAN ULLAH and 2 others‑‑‑Respondents
Criminal Miscellaneous Bail Cancellation Application No. 456 of 1999, decided on 15th November, 1999.
Criminal Procedure Code (V of 1898)‑‑
‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Cancellation of bail‑‑Record showed that delay in the prosecution of case was caused not by the accused but by the complainant‑‑‑Petition for cancellation of bail granted to accused by Sessions Court was not pressed‑‑‑High Court, however, directed the Trial Court to conclude the trial before a specified date.
PLD 1968 SC 353 and PLD 1977 SC 434 ref.
Mian Qamar Gul Kaka Khel for Petitioner.
Javed A. Khan for Respondents Nos. 1 and 2..
Kh. Azhar Rashid, Asstt. A.‑G. for the State.
Date of hearing: 15th November, 1999.
2000 M L D 682
[Peshawar]
Before Sardar Jawaid Nawaz Khan Gandapur and Nasirul Mulk, JJ
SULTANAT KHAN and another‑‑‑Petitioners
versus
SHAH SAHIB, DEPUTY COMMISSIONER, SWAT AT GULKADA, SAIDU SHARIF, DISTRICT SWAT and 5 others‑‑‑Respondents
Writ Petition No. 1045 of 1999, decided on 20th October, 1999.
(a) Provincially Administered Tribal Areas (Nifaz‑e‑Nizam‑e‑Shariah) Regulation (II of 1994)‑‑‑
‑‑‑‑Preamble & Sched. II‑‑‑Enforcing of Nizam‑e‑Sharia‑‑‑Exercise of such powers by Deputy Commissioner of a district ‑‑‑Competency‑‑‑Nizam‑e-Sharia was to be enforced through Courts‑‑‑Courts and the Judicial Officers presiding the Courts, who could exercise judicial, civil and criminal powers, having been mentioned in Sched. II of Provincially Administered Tribal Areas (Nifaz‑e‑Nizam‑e‑Shariah) Regulation, 1994 and Deputy Commissioner having not been included in such Sched. II, Deputy Commissioner, in circumstances, had no authority to try any civil and criminal case.
(b) Provincially Administered Tribal Areas (Nifaz‑e‑Nizam‑e‑Shariah) Regulation (II of 1994)‑‑‑
‑‑‑‑S.9(3), Expln. (i)‑‑‑Expression "Sadd‑e‑Zarai'a‑e‑Janayah"‑‑‑Meaning and scope‑‑‑Such expression includes all steps and measures taken in accordance with Shariah and any law for time being in force for prevention of crimes.
(c) Provincially Administered Tribal Areas (Nifiz‑e‑Nizam‑e‑Shariah) Regulation (II of 1994)‑‑‑
‑‑‑S. 9(3), Expln. (i)‑‑‑Incorporation of word "and" between "Sharia" and "law"‑‑‑Effect‑‑‑Word "and" was used with the intention that the words "Sharia" and, "law" would be used conjunctively so that only such steps could be taken for Sadd‑e‑Zaraia‑e‑Janayah as were in accord with Sharia and law.
(d) Judicial powers‑‑‑
‑‑‑‑ Judicial powers are always conferred expressly by Legislature and not by inference.
(e) Provincially Administered Tribal Areas (Nifaz‑e‑Nizam‑e‑Shariah) Regulation (II of 1994)‑‑‑
‑‑‑‑S. 9(3)‑‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Ejectment of tenant by Deputy Commissioner in exercise of powers under S.9(3) of Provincially Administered Tribal Areas (Nifaz‑e‑Nizam‑e‑Sharia) Regulation, 1994‑‑‑Validity‑‑‑Deputy Commissioner did not have any lawful authority to exercise such judicial powers‑‑‑Landlords could have approached the competent Court, for the redressal of their grievance‑‑‑Proceedings conducted by Deputy Commissioner were without lawful authority and the same were set aside.
Rahmani Gul v. Rent Controller 1987 SCMR 866 and Government of N.‑W.F.P. v. Muhammad Irshad PLD 1995 SC 281 ref.
Sher Muhammad Khan or Petitioners. Imtiaz Ali, Add]. A.‑G. for Respondent No. 1. Murtaza Khan Durrani for Respondents Nos. 2 to 4.
Mian Iqbal Hussain for Respondents Nos.5 and 6.
Date of hearing: 20th October, 1999.
2000 M L D 698
[Peshawar]
Before Qazi Muhammad Farooq, C.J. and Tariq Parvez, J
EID REHMAN‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Jail Criminal Appeal No. 155 of 1998, decided on 3rd November, 1999.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Sentence‑‑‑Presence of father with his son in their own shop at the time of occurrence was not unnatural‑‑‑No delay had occurred in making the report to the police and the time span of 50 minutes between the occurrence and lodging the F.I.R. stood explained‑‑Motive had been admitted by the accused in his statement recorded under S.342, Cr.P.C.‑‑‑Single accused having been charged for the offence, substitution of the real culprit was not possible‑‑‑Ocular testimony was consistent and confidence inspiring and the same, although having been furnished by a sole witness could be relied upon as same rang true‑‑Conviction of accused was upheld accordingly‑‑‑Real motive of the occurrence and its immediate cause having been shrouded in mystery, sentence of death of accused was altered to imprisonment for life with benefit of S.382‑B, Cr.P.C.
PLJ 1978 SC 270 and 1999 SCMR 1220 ref.
Abdul Fayaz Khan for Appellant.
Musratullah Khan, Asstt. A.‑G. for the State
Date of hearing: 3rd November, 1999
2000 MLD 709
[Peshawar]
Before Mian Muhammad Ajmal and Muhammad Azam Khan, JJ
GIYAN CHAND‑‑‑Petitioner
versus
CHIEF ELECTION COMMISSIONER OF PAKISTAN, ISLAMABAD and 3 others‑‑‑Respondents
Writ Petition No‑1478, Civil Miscellaneous Nos. 130, 2069 and 2309 of 1998, decided on 9th September, 1999
(a) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Arts. 63A(6) & 199‑‑‑Disqualification on ground of defection‑‑‑Order of Chief Election Commissioner‑‑‑Exercise of Constitutional jurisdiction by High Court‑‑‑Validity‑‑‑Question of jurisdictional error, coram non judice and mala fides had been alleged by the petitioner‑‑‑High Court could proceed in the matter and Constitutional petition was maintainable in circumstances in the light of observations of Supreme Court in case of Vukala Mahaz Barai Tahafaz Dastoor Federation of Pakistan reported in PLD 1998 SC 1263.
Wukala Mahaz Barai Tahafaz Dastoor and another v. Federation of Pakistan and others PLD 1998 SC 1263 fol.
(b) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Arts. 63A & 199‑‑‑Constitutional petition‑‑‑Disqualification on the ground of defection‑‑‑Proceedings under Art.63A of the Constitution were initiated against the petitioner, who was member of Provincial Assembly/political party to which he belonged was declared defector‑‑Decision of the political party was communicated to the Speaker of the Provincial Assembly who filed a reference before the Chief Election Commissioner and finally petitioner was disqualified on the ground of defection‑‑‑Validity‑‑‑Objection to the maintainability of the reference was raised by the petitioner‑‑‑Neither any notice was served to the petitioner, nor he was heard in person‑‑‑Chief Election Commissioner failed to record any evidence with regard to the allegations brought against the petitioner in connection with his alleged defection from the party‑‑‑Constitutional petition consisted of matters relating to factual aspect which had to be proved by leading primary evidence against the petitioner‑‑‑Where no such evidence was recorded, the case was remanded back to the Chief Election Commissioner to hear the case afresh in the light of the judgment of Supreme Court in the case of Wukala Mahaz Barai Tahafaz Dastoor reported in PLD 1998 SC 1263‑‑‑Chief Election Commissioner was directed to afford opportunity to both the parties to adduce evidence in support of their respective claims.
Muhammad Jameel Asghar v. Improvement Trust PLD 1965 SC 698; Khizar Ilayat Khan v. Zainab Begum PLD 1967 SC 402; Humayun Saifullah Khan v. Federation of Pakistan PLD 1990 SC 599; Khawaja Ahmad Tariq Rahim v. The Federation of Pakistan PLD 1992 SC 646; Pir Sabir Shah v. Shad Muhammad Khan, Member, Provincial Assembly PLD 1995 SC 66; Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426; State v. Zia‑ur‑Rehman PLD 1973 SC 49; Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26 and 1999 SCMR 215 ref.
Wukala Mahaz Barai Tahafaz Dastoor and another v. Federation of Pakistan and others PLD 1998 SC 1263 fol.
Muhammad Saleem Sehgal for Petitioner.
Haroon Biloor for Respondent No.2.
Riaz Ahmad for Respondent No.3.
Q. Muhammad Anwar for Respondent No.4.
Dates of hearing: 6th, 7th, 20th and 21st April, 1999. .
2000 M L D 766
[Peshawar]
Before Qazi Muhammad Farooq, C. J. and Malik Hamid Saeed, J
AMIR KHAN‑‑‑Appellant
versus
THE STATE and another‑‑‑Respondents
Criminal Appeal No. 337 and Murder Reference No. 36 of 1998, decided on 16th December, 1999.
Penal Code (XLV of 1860)‑‑
‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Plea taken by accused in his defence was an afterthought and not at all worth reliance as the same was not advanced at the investigation stage‑‑‑Clothes, Chappals and bottle recovered from the spot at the instance of accused were found by the Chemical Examiner to have been burnt with sulphuric acid‑‑‑Accused had also led to the recovery of the bottle of acid from the bushes‑‑‑Deceased girl was proved to have been burnt with acid and the statement of the Lady Doctor, though positive on the point of thermal injury, yet creating doubt with regard to the substance of burning, could not be made basis for discarding the whole confidence inspiring eye‑witness account and other circumstantial evidence in the case‑‑‑Confessional statement made by accused before Magistrate was fully in line with the oral and other circumstantial evidence on record and was voluntary and genuine and the mere fact of its having been made by the accused after 5/6 days of his arrest could not make it doubtful‑‑‑Motive for the occurrence stood proved‑‑‑Conviction and sentence of death awarded to accused by Trial Court were confirmed in circumstances.
Abdur Rehman v. The State 1998 SCMR 1778 and Muhammad Karim v. The State PLD 1976 Pesh. 135 ref.
Mohibullah Kakakhel for Appellant. Ishtiaq Ibrahim Khan, A.A.‑G. for the State.
Muhammad Arif Khan and Abdul Fayyaz Khan for the Complainant.
Date of hearing: 8th December, 1999.
2000 M L D 796
[Peshawar]
Before Sardar Muhammad Raza Khan, J
MALIK AMAN and 3 others‑‑‑Petitioners
versus
FIDA MUHAMMAD and 4 others‑‑‑‑Respondents
Writ Petition No. 160 of 1996, decided on 23rd November, 1999.
(a) West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)‑‑‑
‑-‑‑Ss.3, 10 & 11‑‑‑Redemption or restitution of mortgaged land‑‑Limitation‑‑‑Exercise of jurisdiction by Collector‑‑‑Scope‑‑‑Deciding the fate of both the petitions for either redemption or restitution, it was the factum of limitation, on which such petitions were either to be dismissed or to be accepted‑‑‑Sufficient for the Collector to give a detailed account of the aspect of limitation and to dismiss the petition under S.11, West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964 after recording his reasons for such order‑‑‑Collector to avoid giving findings concerning title of the parties and his reasons should mainly pertain to involvement of period of limitation.
(b) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑
‑‑‑‑Ss.135, 141 & 142‑‑‑West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)‑‑‑Partition proceedings‑‑‑Question of title‑‑‑Jurisdiction of Revenue Officer‑‑‑Scope‑‑‑Revenue Officer under the provisions of West Pakistan Land Revenue Act, 1967 cart assume jurisdiction as Court wherever the question of title is disputed. between the parties‑‑‑Such powers are totally absent in West Pakistan Redemption and Restitution of Mortgaged Lands Ac., 1964.
(c) West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)‑‑‑
‑‑‑‑Ss. 10 & 11‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Restitution petition, dismissal of‑‑‑Question of title, bases on such dismissal‑‑‑Validity‑‑‑Where the Revenue Officer dismissed the petition for restitution of mortgaged lands and declared to the respondents to have become owners of the land, such an order was in excess of jurisdiction vested in that Revenue Officer‑‑‑Revenue Officer under the provisions of Ss.3, 10 & 11 of West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964 was empowered to dismiss or accept such petition on the ground of limitation but no findings could be given qua the title of the property‑‑Findings qua the title under such proceedings could not be given firstly that the Revenue Officer is not a Court and secondly the proceedings before such officer arose from a simple petition and not from a suit‑‑‑Findings of Revenue Officer qua title of property were beyond his jurisdiction and same were set aside in circumstances.
Abdul Latif Khan for Appellants.
Pervez Khan Jahangiri for Respondents.
Date of hearing: 23rd November, 1999.
2000 M.L D 814
[Peshawar]
Before Tariq Parvez, J
Mst. MAH JEHAN---Petitioner
versus
ABDUL MAROOF---Respondent
Civil Revision No. 104 of 1998, decided on 18th June, 1999.
(a) North-West Frontier Province Pre-emption Act (X of 1987)---
----Ss.6 & 24---Suit for pre-emption ---Deposit of one-third of pre-emption money---Trial . Court directed plaintiff to deposit one-third of sale consideration before the specified date---Plaintiff, after twenty-one days' from the order of. Court, applied for permission to deposit one-third of preemption amount as calculated by him which pernussion was granted to plaintiff-=-Plaintiff, however, instead of depositing amount before the specified date as per direction of the Court, deposited the same a day thereafter---Effect---Provision of S.24, North-West Frontier Province Preemption Act, 1987 providing mode and time for deposit of one-third of preemption amount was mandatory in nature and any default committed or deviation made in complying with the provision would entail dismissal of suit---Deposit of amount by plaintiff beyond period fixed by Trial Court was sufficient demonstration to show that he was not serious about enforcement of his right---Person with such attitude, was not entitled to any relaxation, even if provided under the law--.-Trial Court, in circumstances, had rightly dismissed pre-emption suit filed by plaintiff for non-compliance of mandatory provision of law.
Tahir Binyamin Khan v. Mst. Dr. Mumtaz Begum Gandapur and 9 others 1997 MLD 2945; Muzaffar v. Ali Khan and 3 others 1989 CLC 2342 Shah Behram v. Akbar Khan PLD 1992 Pesh. 18; Umer Hayat v. Azizullah Khan and others PLD 1956 Lah. 297; Obaid-ud-Salam and others v. Faiz Muhammad Khan and others 1987 SCMR 216 and Mst. Mumtaz Begum v. Abdul Wahid 1990 CLC 1305 ref.
(b) Practice and procedure---
---- Where provisions of enactment required some act to be done, it was to be done in the manner as prescribed in the statute and if same was not done . accordingly, consequences would be penal:
Mian Saadullah Jandoli for Petitioner. Zia-ur-Rehman for Respondent.
Date of hearing: 11th Jilue, 1999.
2000 M L D 834
[Peshawar]
Before Mian Muhammad Ajmal and Muhammad Azam Khan JJ
Haji KHAISTA GUL through Special Attorney‑‑‑Petitioner
versus
GOVERNMENT OF N..‑W.F.P. through Secretary, Forest Division, Fisheries and Wildlife Department and 3 others‑‑‑Respondents
Writ Petitions Nos. 1172 of 1995, 232 of 1996, 1745,. 1746 and 1748 of 1997, decided on 30th September, 1999.
Hazara Forest Act, 1936 (VI of 1937)‑‑‑
‑‑‑‑Ss.28 & 29‑‑‑Forest Act (XVI of 1927), S.39‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Enhancing of production duty‑‑Provincial Government enhanced production duty on timber from the rate of Rs.7 c.ft to Rs.14 c. ft. ‑‑‑Petitioners who were, forest lessees and were dealing in timber business assailed such act of the Provincial Government in the Constitutional petition‑‑‑Validity‑‑‑‑Production duty was levied on timber at "Dassu" the entry point of timber in Hazara Division and the same attracted the ingredients of Ss.28 & 29 of Hazara Forest Act, 1936‑‑‑When Hazara Forest Act, 1936 was in field and was in operation, the Provincial Government was within its powers to ask for the payment of production duty in accordance with the requirements of the Province in the public interest/purpose‑‑‑Such tax was recoverable from the consumers and the petitioners could not be termed as aggrieved persons‑‑‑No case of discrimination was made out on the strength, of the record‑‑‑Petitions being without merit were dismissed in circumstances.
Muhammad Zahoorul Haq for Petitioner. Imtiaz Ali, A.A. ‑G. for Respondents.
Date of hearing: 30th September, 1999.
2000 M L D 849
[Peshawar]
Before Jawaid Nawaz Khan Gandapur, J
KHAN MUHAMMAD and 2 others‑‑‑Petitioners
versus
Mst. HASSAN ZADGAI and another‑‑‑Respondents
Criminal Miscellaneous No.226 of 1999, decided on 11th November, 1999, Criminal Procedure Code (V of 1898)‑‑‑‑
‑‑‑‑Ss.100 & 561‑A‑‑‑Quashing of order‑‑‑Daughter of respondent having been kept in illegal confinement by petitioners, respondent who was mother of detenue filed petition before Magistrate for issuance of search warrant under S.100, Cr.P.C. and Magistrate did the needful‑‑‑Magistrate after recording statement of detenue, handed over her to the respondent (mother)‑‑‑Revision filed by petitioners against orders of Magistrate was dismissed by Sessions Court‑‑‑Petitioners had filed petition for quashing of order of Courts below‑‑‑Petitioners had failed to prove that respondent in any way had abused process of any of lower Courts or that interference of High Court with verdict of Courts below would secure ends of justice‑‑‑Petition for quashing of orders of Courts below was dismissed, in circumstances.
Shahzada Ajmal Zeb Khan for Petitioners.
2000 M L D 855
[Peshawar]
Before Jawaid Nawaz Khan Gandapur, J
Mst. REHANA‑‑‑Petitioner
versus
THE STATE‑‑‑‑Respondent
Criminal Miscellaneous No.937 of 1999, decided on 3rd November, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.497‑‑‑Prohibi ion (Enforcement of Hadd) Order (4 of 1979), Art. 3/4‑‑Control of Narcotic Substances Act (XXV of 1997), S.9‑‑‑Bail, grant of‑‑Accused was a lady having a suckling child with her in jail‑‑‑Case of accused would fall under first proviso to S. 497, Cr.P.C. entitling her for grant of bail though she was unable to make out' a case for bail on merits.
Khuda Bux v. The State 1996 MLD 1030; Mst. Zareena Jan v. The State PLD 1991 Pesh. 123; Akhtar Hussain Shah v. The State 1999 PCr.LJ. 225; Qimat Hassan v. The State 1999 PCr.LJ 824; Yousaf Khan and another v. The State and another 1995 PCr.LJ 1200 and Abdul Kadir Shaikh v. The State 1989 SCMR 202 ref.
Saeed Shah Bukhari for Petitioner.
Kh. Azhar Rashid, Asstt. A.‑G. for the State.
Date of hearing: 3rd November, 1999.
2000 M L D 863
[Peshawar]
Before Sardar Muhammad Raza Khan and Talat Qayum Qureshi, JJ
MUHAMMAD AKRAM‑‑‑Petitioner
versus
MIR AFZAL and 4 oihers‑‑‑Respondents
Writ Petition No.228 of 1998, heard on 24th November, 1998.
Criminal Procedure Code (V .of 1898)‑‑‑
‑‑‑‑Ss.195, 200 & 561‑A‑‑‑Penal Code (XLV of 1860), S.193/209/419/420/465/46$/471/474‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Filing of complaint pending civil spit‑‑‑Quashing of proceedings‑‑Constitutional petition‑‑‑Pending suit for damages filed by respondent against petitioner in Civil Court, respondent filed application under S.195, Cr.P.C. for filing complaint against petitioner‑‑‑Court below accepting said application directed initiation of criminal proceedings against petitioner‑‑Validity‑‑‑When real matter in controversy and when principal document disputed between the parties, was sub judice before Trial Court, criminal proceedings could not be initiated‑‑‑Criminal proceedings at such a stage would amount to putting pressure on and exercising coercion against petitioner‑‑‑High Court directed that criminal proceedings be kept pending till final decision of suit for damages filed by respondent and decision of suit for specific performance of contract subsequently filed by the petitioner against respondent.
Alan Khan Jadoon for Petitioner.
Abur Rauf Khan for Respondents.
Date of hearing: 24th November, 1999.
2000 M L D 883
[Peshawar]
Before Sardar Muhammad Raza Khan, J
Syed IBRAHIM SHAH BUKHARI‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Criminal Appeal No. 17 of 1999, decided on 8th November, 1999.
Prevention of Corruption Act (II of 1947)‑‑‑
‑‑‑‑S.5(2)‑‑‑Penal Code (XLV of 1860), S.161‑‑‑Appreciation of evidence‑‑Accused an Associate Professor was appointed as Superintendent in Examination Hall to supervise examination‑‑‑Allegation against accused was that he demanded certain amount as illegal gratification from complainant who was a candidate and was found copying‑‑‑Prosecution case was that accused took out some amount from the pocket of the candidate in examination hall and warned him to pay balance amount on next date‑‑Certain discrepancies were found in the case against accused which could not be reconciled and which had rendered the case against accused highly doubtful‑‑‑Accused, as alleged was not at all in a position to blackmail complainant/candidate and to corner him to pay bribe as answer book which was to be sealed and dispatched to Education Board concerned after closing hours, , could not be kept by accused for three days‑‑‑Possibility of some preconceived plot against accused, thus, could not be ruled out‑‑‑Phenomena of tainted money was also not free from doubt‑‑‑Tainted money was not specifically marked by raiding Magistrate which had rendered the same matter highly doubtful‑Numerous ‑‑other discrepancies were found regarding handing over of tainted money as well as recovery thereof‑‑Transaction of demand and receipt of. money by accused from complainant inside examination hall in presence of hundred of other candidates, did not appeal to reason‑‑‑Case of prosecution being not free from numerous doubts, conviction and sentence passed by Trial Court against accused were set aside and accused was acquitted giving him benefit of doubt.
Q.M. Anwar for Appellant. Assadullah Marwat, A.A.‑G. for the State.
Date of heating: 8th November, 1999.
2000 M L D 888
[Peshawar]
Before Mian Muhammad Ajmal and Jawaid Nawaz Khan Gandapur, JJ
RASHID ---Appellant
versus
STATE---Respondent
Jail Criminal Appeal No.250 of 1994, decided on 18th February, 1998.
Penal Code (XLV of 1860)---
----S.302/148/149---Appreciation of evidence---Nothing was brought on record to suggest that complainant had any enmity/animosity or ill-will towards accused which could prompt him to implicate them, accused/appellants falsely in the case---Accused in their statements recorded under S.342, Cr.P.C., could not rebut allegation of complainant made in his statement on oath---Accused neither had produced evidence in their defence nor had examined themselves on oath as their own witnesses under S.340(2), Cr.P.C.---Confessional statements of accused were correctly recorded---Identification parade was repeatedly held in which accused were duly identified---Question of mistaken identity did not arise---Matter was reported promptly within a short span of time---Trial Court, in circumstances, had rightly convicted and sentenced the accused---Judgment of Trial Court based on proper appreciation of evidence not suffering from misreading or non-reading of evidence could not be interfered with.
Jehanzeb Khan for Appellant.
Kh. Azhar Rashid, Asstt. A.-G. for the State.
Kh. Muhammad Khan for the Complainant.
Date of hearing: 18th February, 1998.
2000 M L D 931
[Peshawar]
Before Mian Muhamamd Ajmal and Muhammad Azam Khan, JJ
FAZAL HAKIM ‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Criminal Appeal No.91 of 1996, decided on 22nd December, 1999.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss.302 & 324‑‑‑Appreciation of evidence‑‑‑Defence version put forward by the accused was neither established on the record, nor he had examined himself on oath as his own witness under S.340(2), Cr.P.C. and the same having lacked material support was liable to be ignored straightaway‑‑‑ Prosecution version was supported by the eye‑witness and the dying declaration of the deceased which had given the complete details of the occurrence and was corroborated by the recoveries from the spot, arrest of the accused soon after the occurrence with the weapon of offence which matched with the crime empty and the medical report‑‑‑Deceased after receiving the injuries, remained alive for two days and his dying declaration had qualified all the tests of being true‑‑‑Nothing was. available on the record to override the prosecution evidence which had proved the charge against the accused‑‑‑Conviction and sentence of accused were upheld in circumstances.
Muhammad Ullah Khan for Appellant.
Tariq Javaid, A.A. ‑G. and Khawaja Muhammad Khan for the State.
Date of hearing: 22nd December, 1999.
2000 M L D 943
[Peshawar]
Before Tariq Parvez, J
MUHAMMAD SAYAR and another---Petitioners
versus
THE STATE---Respondent
Criminal Revision No. 104 of 1999, decided on 4th February, 2000.
(a) Criminal Procedure Code (V of 1898)---
----S.369---Word "judgment" used in S.369, Cr.P.C. signifies the final finding of the Court reached upon after full deliberation on the facts and decision on the point in issue between the parties---Final verdict alone makes the Court delivering judgment as functus officio.
(b) Criminal Procedure Code (V of 1898)--
----Ss.514, 369 & 439---Penal' Code (XLV. of 1860), S.302/324/148/149--- Forfeiture of bail bonds---Proceedings under S.514, Cr.P.C. were started against the petitioners (sureties) by the Sessions Court on 31-8-1999 and the flaw therein, if any, had been rectified by order, dated 24-11-1999 whereby the Court had ordered the forfeiture of the bail bonds and had directed that show-cause notice to the sureties would follow, which was in consonance with the requirement of S.514, Cr.P.C.---No final order regarding forfeiture of the bail bonds having yet been passed, the grievance of the petitioners was not sustainable---Making of corrections in the proceedings before passing the final order in proceedings under 5.514, Cr.P.C. remained within the domain of the Sessions Court as the matter was still pending before it and the aforesaid orders had not culminated into determining the final liability of the petitioners--Proceedings being conducted and carried out against the petitioners, therefore, suffered from no legal flaw.
1999 PCr.LJ 1031 ref.
Muhammad Iqbal Tarangzai for Appellants.
Tarid Javed, Asstt. A.-G. for the State.
Date of hearing: 4th February, 2000.
2000 M L D 961
[Peshawar]
Before Shahzad Akbar Khan, J
GUL SHER---Petitioner
versus
THE STATE and another---Respondents
Criminal Bail Application No.249 of 1999, decided on 20th December, 1999.
(a) Criminal Procedure Code (V of 1898)----
----S.497---Bail---Assessment of the data collected by the prosecution against the accused---Guidelines provided. In the criminal administration of justice while deciding application for grant of bail, it must be kept in mind that .the accused person is begging a relief amidst the circumstances totally engineered and steered by the opposite-party, i.e. the prosecution, as the entire material is gathered against him in an ex parte manner and he is not then riding a chance to rebut the hostile material. Thus, the so collected data be assessed by the Court tentatively in a very guarded manner with a mind to calculate the swings of affirmatives and negatives residing in the material so collected. And if such assessment generates any kind of doubt, its benefit must be given to the accused, as the pre-trial detention is a deprivation of liberty which is suffered by the accused person with zipped lips and on the conclusion of trial if he gets a verdict of innocence, such accused person can never be compensated for deprivation of his liberty, which is a priceless right of a person.
(b) Criminal Procedure Code (V of 1898)---
----S.497---Bail---Statement of an accomplice implicating his co-accused--Worth of such statement discussed with reference to bail matters.
Rule of prudence dictates that an accomplice who accepts the commission of an offence is a person of nature who has no obduracy to resist the evil propensities which reduces him to a level that his lonely statement cannot be considered as a ground for forming a belief that the co-accused who is implicated by him is reasonably connected with the commission of offence. Thus, the case of such accused person would certainly come within the scope of further enquiry which gives entitlement to bail.
PLD 1991 FSC 53.ref.
(c) Criminal Procedure Code (V of 1898)---
----S.497---Penal Code (XLV of 1860), S.302/460/34---Bail---Only material available against the accused was the confessional statement of co-accused in which too no act of firing had been attributed to him and the same could not be taken as a ground to believe that the accused was reasonably connected with the commission of the offence charged with---Case of accused, thus, fell within the scope of further inquiry and he was consequently admitted to bail.
PLD 1991 FSC 53; 1986 SCMR 511 and 1995 SCMR 1350 ref.
Zafar Abbas Zaidi and Syed Abid Hussain Bukhari for Petitioner
Ghulam Hur Khan for the State
Salahuddin Khan Gandapur for the Complainant
Date of hearing: 20th. December, 1999
2000 M L D 1045
[Peshawar]
Before Abdur Rauf Khan Lughmani, J
KHAN ZAMAN‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Criminal Appeal No.31 of 1999, decided on 26th November, 1999.
Prohibition (Enforcement of Hadd) Order (4 of 1979)‑‑‑
‑‑‑‑Art.4‑‑‑Criminal Procedure Code (V of 1898), S.103‑‑‑Appreciation of .evidence‑‑‑Despite the recovery having been effected in a thickly populated area, police party admittedly did not call any shopkeeper or any other private person to witness the same and clearly violated the mandatory provisions of 5.103, Cr.P.C. making the recovery of contraband heroin from the accused illegal which could not be made the basis of conviction‑‑‑Prosecution had also failed to send the sample of the recovered heroin to the Chemical Examiner immediately raid without any loss of time, but did so after seven days of the alleged recovery‑‑‑Accused, in circumstances, was entitled to acquittal not as a matter of grace but as a matter of right and he was acquitted accordingly.
PLD 1997 Lah. 633 and PLD 1997 SC 408 ref.
Allah .Nawaz Khan for Appellant.
S. Saeed Hassan Shah, Asstt. A.‑G. for the State.
Date of hearing: 26th November, 1999.
2000 M L D 1050
[Peshawar]
Before Mian Muhammad Ajmal and Muhammad Azam Khan, JJ
HAIDER ZAMAN---Appellant
versus
THE STATE and another---Respondents
Criminal Appeal No.144 and Murder Reference No.15 of 1998, decided on 2nd November, 1999.
(a) Penal Code (XLV of 1860)---
----S.302---Appreciation f evidence---Statement of the complainant was fully supported in all material particulars by other eye-witness who was related to both the parties and in whose house the occurrence had taken place--Ocular account was corroborated by the recovery of crime empty from, the spot, motive for the offence and the abscondence of accused for more than three years---Single shot having been attributed to a single accused, identification of actual culprit could not be open to any mistake---Conviction of accused was maintained in circumstances.
(b) Penal Code (XLV of 1860)---
----S.302---Sentence---Mitigating circumstance---Parties were closely related to each other---Occurrence had taken place all of a sudden during compromise efforts upon the. direction of the father of accused--Accused had fired a single shot at the deceased which proved fatal--Death sentence of accused was altered to imprisonment for life in circumstances.
1995 SCMR 256 and 1976 SCMR 128 ref.
M. Zahoorul Haq for Appellant.
Musaratullah Khan, Asstt. A.-G for the State Khalid Khan for the Complainant.
Date of hearing: 2nd November, 1999
2000 M L D 1056
[Peshawar]
Before Muhammad Azam Khan, J
RASHID ‑‑‑ Petitioner
versus
THE STATE and another‑‑‑Respondents
Criminal Miscellaneous No. 1411 of 1999, decided on 5th January, 2000.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.489‑B/420‑‑‑Bail, grant of‑‑Counterfeit currency notes were paid to .the complainant by co‑accused who had subsequently sold the buffalo to another person‑‑‑Section 420, P.P.C. was bailable ‑‑‑Section 489‑B, P.P.C. no doubt entailed punishment for more than ten years, but the matter having been reported to the police after a considerable delay, the case of accused was arguable‑‑‑Bail was allow to accused in circumstances.
Riaz Ahmed for Petitioner.
Tariq Javaid, A.A.‑G. for Respondents.
Date of hearing: 5th January, 2000.
2000 M L D 1061
[Peshawar]
Before Sardar Muhammad Raza and Shah Jehan Khan, J
RAZ MUHAMMAD ---Petitioner
versus
THE STATE and another---Respondents
Criminal Miscellaneous No. 1294 of 1999, decided on 23rd December, 1999.
(a) Criminal Procedure Code (V of 1898)---
----S.497(1), third proviso---Penal Code (XLV of 1860), S.302/148/149--Bail on the ground of statutory delay---Record did not show the accused to be a hardened, desperate or dangerous criminal---Delay in conclusion of the trial was not caused by the accused nor by anybody on his behalf---When bail was sought on the ground of statutory delay, the point of time crucial thereto was the conclusion of trial within two years and not its commencement which in such context was totally irrelevant ---Abscondence of accused in certain cases at bail stage might be considered to be a disqualification for bail, but in an application under third proviso to S.497(1), Cr.P.C., it could not be so considered, because the accused had already spent statutory period of two years in jail after his abscondence and arrest---Even otherwise disability of abscondence was not mentioned in third and fourth provisos to S.497(1), Cr.P.C. despite all other disabilities were mentioned therein---Accused was admitted to bail in circumstances.
(b) Criminal Procedure Code (V of 1898)---
----S.497(1), third and fourth provisos---Penal Code (XLV of 1860), S.302/148/149---Bail on statutory ground of delay ---Abscondence of accused ---Effect---Abscondence of accused is irrelevant for the purposes of bail sought under third proviso to S.497(1), Cr.P.C. for the reasons that he had already spent two years' statutory period in jail after the abscondence and arrest without the conclusion of trial and secondly that the disability of abscondence was not mentioned in third and fourth provisos to S.497(1), Cr.P.C. amongst other disabilities mentioned therein by the Legislature.
Muhammad Atlas Khan for Petitioner.
Tariq Javed Khan, Asstt. A.-G. for the State
Date of hearing: 23rd December, 1999.
2000 M L D 1241
[Peshawar]
Before Abdur Rauf Khan Lughmani, J
HAFEEZULLAH KHAN‑‑‑Petitioner
Versus
STATE and others‑‑‑Respondents
Criminal Bail Application No. 128 of 1998, decided on 11th November, 1998.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S: 497‑‑‑Penal Code (XLV of 1860), S.302/324/148/149‑‑‑Bail, grant of‑‑‑Role of raising "Lalkara" had been attributed to accused, the true import of which was to be determined at trial‑‑‑Both parties being closely related to each other, similarity of action and re‑action could be there‑‑‑If one party could resort to violence, other could involve head of opposite group‑‑‑In view of role attributed to accused in background of enmity between parties, accused was granted bail.
Amanat Ali v. The State 1993 SCMR 1993; Muhammad Haroon v. The State 1994 SCMR 2161 and Rafique Khan v. The State 1995 SCMR 343 ref.
Dost Muhammad Khan for Petitioner. S. Saeed Hassan Sherazi, A.A.‑G. for the State. S. Zafar Abbas Zaidi for the Complainant.
Date of hearing: 11th November, 1998.
2000 M L .D 1249
[Peshawar]
Before Shahzad Akbar Khan, J
SHAUKAT KHAN---Applicant
Versus
SAIFULLAH KHAN and others---Respondents
Criminal Bail Application No.92 of 1999, decided on 7th June, 1999.
Criminal Procedure Code (V of.1898)---
----S.497---Penal Code (XLV of 1860), S. 457/380---Bail, g ant of--Occurrence had taken place in dark hours at night and nobody had witnessed the same---Alleged confessional statement of accused on which prosecution had relied, was exculpatory in nature---Complainant in his statement had totally exonerated accused and had declared him innocent---Prima facie, there being only recovery of stolen goods from accused, case against accused would fall under S.411, P.P.C. which carried maximum punishment of three years and did not fall under prohibitory clause of S.497, Cr.P.C.---Case against accused falling within scope of further inquiry, he was entitled to concession of bail which was granted.
Muhammad Tariq v. The State 1998 NLR Shariat Decisions 3 ref.
Dost Muhammad Khan for Applicant.
Malik Hamesh Gul for Respondent No. 1. State Counsel and the Complainant in person
Date of hearing: 7th June, 1999.
2000 M L D 1251
[Peshawar]
Before Abdur Rauf Khan Lughmani and Shahzad Akbar Khan, JJ
SHADI KHAN‑‑‑Petitioner
versus
HAZRAT UMAR and another‑‑‑Respondents
Criminal Miscellaneous Bail Cancellation Petition No. 137 of 1998, decided on 10th June, 1999.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), S. 302/34‑‑‑Bail, cancellation of‑‑‑Accused had been attributed usual customary role of "Lalkara" besides being empty‑handed‑‑‑Prosecution case was not that the accused had misused concession of bail in any manner‑‑‑Background of blood feud enmity existed between parties‑‑‑Consideration for cancellation of bail being somewhat different, Court declined to interfere with liberty of accused. granted to him by Trial Court, with. the observation that expressions/opinions of Trial Court to the effect that nothing was on record that principal accused had acted on direction of accused or that accused was declared innocent, were neither desirable nor permissible at bail stage for either of the parties could entertain certain doubt.
Sultan Shaharyar Khan for Petitioner.
Dost Muhammad Khan for Respondent No. 1.
Asstt.‑A.G. for the State.
Date of hearing: 10th June; 1999.
2000 M L D 1290
[Peshawar]
Before Shahzad Akbar Khan, J
SAMEEULLAH KHAN‑‑‑Appellant
Versus
THE STATE and another‑‑‑Respondents
Criminal Appeal No. 20 of 1999, decided on 1st October, 1999
(a) Penal Code (XLV of 1860)‑‑‑--
‑‑‑‑S. 377‑‑‑Appreciation of evidence‑‑‑Offence having been committed inside the shop of accused, there was no likelihood of being viewed by any outsider‑‑‑Contention of accused that no public eye‑witness of occurrence was available, was repelled because such an immoral offence could not be committed in view of general public, but accused for commission of such offence would choose a place which was secluded and out of view of any outsider‑‑‑Victim, who was a minor child aged 5/6 years came out crying soon after commission of offence and immediately narrated the incident to his father who met him on the road outside their nearby house and father of the victim reported matter to police within twenty minutes of the occurrence‑‑‑Story about the occurrence was not fabricated nor implication of accused in the case was a result of afterthought and case against accused fully attracted the rule of "res gestae"‑‑‑‑Child though could not understand proceedings of commission of offence as he had not developed mental maturity for the purpose but Trial Court had rightly observed that child had recognized and identified the accused who was present in the ‑Court‑‑Accused, therefore, had not been prejudiced on account of non‑examination of the child in circumstances ‑‑‑Factum of penetration having been well established by bleeding annus and positive report of‑ Chemical Examiner, absence of semen on swabs, would, in no way, destroy prosecution case‑‑Accused had failed to prove that he was involved in the case out of malice‑‑Case against accused having fully been proved, he was rightly convicted and sentenced.
(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑-
‑‑‑‑Art. 19‑‑‑Facts forming part of same transaction ‑‑‑Res gestae, rule of‑‑Scope and application of rule of res gestae elaborated.
The res gestae rule is that where a remark is made spontaneously and concurrently. It is defined as a matter incidental to main fact and explanatory of it, including acts and words which are so closely connected therewith as to constitute a part of transaction and without knowledge of which main fact might not be properly understood. They are events themselves speaking through instinctive words and acts of participants, circumstances, facts and declarations which grow out of main fact are contemporaneous with it and serve to illustrate its character. Res gestae includes everything that may be fairly considered as an incident or under consideration. It carries with it inherently a degree of credibility and will be admissible because of its spontaneous nature. "Res gestae" means literally thing or things happened and, therefore, to be admissible as exception to hearsay rule, words spoken, thought expressed and gestures made must all be so closely connected to occurrence or event in both time and substance as to be a part of the happening. It is a spontaneous declaration made by 'a person immediately after an event and before the mind has an opportunity to conjure a false story. It represents an exception to the hearsay rule.
Muhammad Aslam Shah v. The State 1983 P Cr. L J 704 ref.
(c) Res gestae, rule of‑‑‑
‑‑‑‑Concept, meaning and scope.
Muhammad Aslam Shah v. The State 1983 P Cr. L J 704 ref.
Gohar Zaman Khan Kundi for Appellant
Malik Hamesh Gul Khan for the State.
Date of hearing: 1st October, 1999
2000 M L D 1356
[Peshawar]
Before Qazi Muhammad Farooq, C.J. and Tariq Parvez, J
SAID WALL---Petitioner
Versus
Haji NAZIR GUL and another---Respondents
Criminal Miscellaneous No. 135 of 1999 in Criminal Appeal No.4 of 1997, decided on 2nd November, 1999.
Criminal Procedure Code (V of 1898)---
----S.426(1-A)---Penal Code (XLV of 1860), S.302---Suspension of sentence was sought on ground that accused had been sentenced to imprisonment for life, but his appeal had not been decided within a period of two years of his conviction---Accused prima facie was connected with crime for which he was charged and convicted---Delay in disposal of appeal would not create any right to suspensation of sentence---Application for suspension of sentence was dismissed with direction that appeal be fixed for final hearing at the earliest.
Abdur Razzaq and others v. The State 1983 SCMR 234 and Shahbaz v. The State 1992 SCMR 1903 ref.
Astaghfirullah for Appellant.
Imtiaz Ali Khan, Addl. A. G. and Asadullah Khan for Respondents, Date of hearing: 2nd November, 1999.
2000 M L D 1372
[Peshawar]
Before Shahzad Akbar Khan, J
SAEEDA BIBI‑‑‑Petitioner
Versus
CHULAM RASOOL through Legal Heirs‑‑‑Respondent
Criminal Revision No. 97 of 1998, decided on 17th September, 1999.
North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑
‑‑‑S.5‑‑‑Right of pre‑emption, exercise of‑‑‑Right of pre‑emption could be exercised only against property which was sold for consideration.
Abdul Rashid Khan for Petitioner.
Muhammad Iqbal Ghuman for Respondent.
Date of hearing: 17th September, 1999.
2000 M L D 1494
[Peshawar]
Before Nasirul Mulk and Shah Jehan Khan, JJ
GHANI‑UR‑REHMAN through Legal Heir‑‑‑Petitioner
Versus
DISTRICT MAGISTRATE/DEPUTY COMMISSIONER, HANGU and others‑‑‑Respondents
Writ Petition No. 125 of 2000, decided on 25th February, 2000.
West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)‑‑‑
‑‑‑‑S. 3‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑‑Constitutional petition‑‑‑Preventive detention ‑‑‑Petitioner, who was involved in criminal case was allowed bail, but he was not allowed to come out of custody as on the very date of bail granting order, petitioner was served upon detention order in the jail under S.3, West Pakistan Maintenance of Public Order Ordinance, 1960‑‑‑Allegations against petitioner were that he had involved himself in objectionable activities detrimental to peace and tranquillity in the district concerned and that petitioner was planning to provoke/instigate general public for creating disturbance for local administration‑‑‑Previous record of criminal activities of petitioner was also considered for issuing detention order against him‑‑‑Action against petitioner was taken simply on ground that credible information against petitioner was received from different sources, but District Magistrate issuing detention order against petitioner had not brought on record any report of concerned agency to show that petitioner was involved in alleged objectionable activities detrimental for peace and tranquillity in the area‑‑‑District Magistrate, in absence of any supporting document had failed to justify detention order on allegations leveled against the petitioner‑‑‑Past criminal record of petitioner could hardly be made basis for action under West Pakistan Maintenance of Public Order Ordinance, 1960‑‑‑Detention order passed by District Magistrate against petitioner was set aside by High Court declaring same to be illegal and without lawful authority.
Mrs. Arshad Ali Khan v. Government of the Punjab 1994 SCMR 1532; Zakia Begum v. District Magistrate 1999 PCr.LJ 18; Muhammad Ayaz Khan v. District Magistrate 1995 PCr.LJ 587; Ahmad Ali v. State 1995 MLD 1748; Syed Mehr Ali Shah v. District Magistrate 1997 MLD 1612; Muhammad Nasim v. District Magistrate 1997 MLD 1236; Muhammad Yasin v. District Magistrate 1997 MLD 2211; Noor v. District Magistrate 1992 MLD 1446; Muhammad Iqbal v. Deputy' Commissioner/District Magistrate PLD 1992 Pesh. 107; Masal Khan v. District Magistrate PLD 1997 Pesh. 148;Muhammad Ali v. District Magistrate PLD 1996 Lah. 342; Farzana Kamran v. District Magistrate 1992 PCr.L1 2336 and Syeda Shamim Akhtar v. Government of Pakistan 1996 PCr.LJ 326 ref.
Jehanzeb Rahim for Petitioner.
Rashid‑ul‑Haq Qazi, A.A.‑G. for Respondent.
Date of hearing: 25th February, 2000.
2000 M L D 1527
[Peshawar]
Before Mian Shakirullah Jan, J
MUHAMMAD RIAZ‑‑‑‑Petitioner
Versus
ABDUL KHALIQ and another‑‑‑Respondents
Criminal Miscellaneous No.34 of 2000, decided on 15th March, 2000
(a) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑Allegation against accused was that when he came forward to beat or kill wife of complainant, deceased, intervened on which accused caught hold of deceased 'and gave him Chhuri blow as a result of which deceased, who sustained injuries, died on the spot‑‑‑Such fact was supported by statement of person residing nearby and also by circumstantial evidence‑‑‑Bail could only be granted when Court arrived at a conclusion that no reasonable grounds existed for believing that accused was guilty of offence, but there was scope of further .inquiry‑‑‑If it was difficult for the Court to arrive at such a conclusion with regard to absence of reasonable grounds qua guilt of accused he was not entitled to bail.
Muhammad Younas and another v. The State PLD 1991 Pesh. 39; Mst. Barkat Bibi v. Gulzar and another 1979 SCMR 65; Muhammad Rashid v. The State 1979 SCMR 92 and Hakim Ali v. The State 1979 SCMR 114 ref.
(b) Criminal Procedure Code (V of 1898)‑‑
‑‑‑‑‑S.497(5)‑‑‑Bail, cancellation of‑‑‑Bail granted to accused could be cancelled when order granting bail was perverse, fanciful or was not in consonance with law laid down by superior Courts.
Muhammad Ayub Khan Tanoli for Appellant.
Muhammad Akber Khan and Muhammad Ayub Khan, Asstt. A. G. for the State
Date of hearing: 14th March, 2000.
2000 M L D 1544
[Peshawar]
Before Tariq Parvezi and Shehzad Akbar Khan, JJ
ISTIKHAR ALI --- Petitioner
Versus
AURANG ZEB and 3 others---Respondents
Criminal Miscellaneous No.922 of 1998, decided on 27th January, 2000
(a) Criminal Procedure Code (V of 1898)---
---Ss.497(5) & 498---Bail before arrest---Cancellation---Initially, role of ineffective firing had been attributed to all three accused persons, but in latter part of F.I.R. throwing of hand-grenade was attributed to one of the co-accused---Injuries on person of complainant were on such part of his body which could not be held to be self-inflicted---Small ditch caused by explosion of grenade was found and slinters were also recovered from the site---Role of said co-accused was different than the other two accused---Plea of alibi taken by all three accused persons was oral and no definite opinion had been expressed by police as to innocence of accused persons---Inter se relations of parties were strained---Case of co-accused who was alleged for throwing hand-grenade was different from that of other two accused---Trial Court, in circumstances, had rightly exercised discretion in granting bail to remaining two accused but had erred by placing said co-accused at par with other accused in granting bail---Order granting bail before arrest to two accused persons was maintained but order granting bail to the accused who was attributed the act of throwing hand-grenade was , cancelled.
(b) Criminal Procedure Code (V of 1898)---
----Ss. 497(5) & 498---Grant of post-arrest bail and pre-arrest bail--Principles---Principles of grant of post-arrest bail and those applicable for pre-arrest bail, though were different, but once bail was allowed by a Court of competent jurisdiction, same was not to be cancelled in routine, be it a post-arrest bail or bail before arrest---Only significant difference for exercising of powers under Ss.497 & 498, Cr.P.C. was that while seeking pre-arrest bail accused must show not only existence of reasonable grounds to believe that he was not guilty of offence charged with, but in addition must prove ulterior motive on part of complainant for bringing charge---Not possible to adduce evidence in support of ulterior motive of complainant at bail stage but some burden would remain and duty cast on accused to bring on record through documentation some material from prosecution file itself showing ulterior intention and mala fides of complainant.
Amjid Ali and Habib-ul-Haq for Petitioner.
Jehanzeb Rahim and Jamil Qamar for the State.
Date of hearing, 28th April, 2000.
2000 M L D 1549, [Peshawar]
Before Mian Shakirullah Jan and Talat Qayum Qureshi, JJ
TARIQ‑‑‑Appellant
Versus
THE STATE and another‑‑‑Respondents
Criminal Appeal No.56 of 1998 with Murder Reference No.2 of 1999, decided on 28th March, 2000.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Last seen unimpeachable evidence furnished by disinterested witness, could not be discarded especially when said witnesses not proved to be inimical towards accused‑‑‑Accused was seen duly armed with shot gun when he visited the house of deceased and he was also seen armed with said shot gun when he was checked by two Police Officials while they were on "Gasht"‑‑‑Recovery of empty of shot gun with positive report of Arms Expert to have been fired with from said recovered shot gun, had provided a strong piece of circumstantial evidence that it was the accused who was responsible for firing with said shot gun‑‑‑Accused who was in Police Department was found absent from duty, on the dates when the occurrence had taken place‑‑‑Accused belonged to a family where one brother was killed by another and murderer brother later on also met with same fate‑‑‑Motive in the case could not be doubted which could either be strained relations of accused with his wife or his desire to marry her sister who refused him‑‑‑Delay in recording statements of witnesses who were independent and disinterested persons, would n6t discredit their evidence‑‑Evidence brought on record having excluded any reasonable hypothesis of accused's innocence he was found guilty of offence‑‑‑Conviction of accused was upheld, but his death sentence was converted into life imprisonment‑‑‑In view, of mitigating circumstances.
Abdur Rehman v. The State 1998 SCMR 1778; Khurshid v. The State PLD 1996 SC 305; Ansar Ahmed Khan Barki v. The State 1993 SCMR 1660; 1980 SCMR 859 and Muhammad Tahir Khan v. The State 1983 SCMR 1169 ref.
Abdullah Jan Mirza for Appellant.
Qazi Muhammad Ghazanfar for the State.
Masoodur Rehman Tanoli for the Complainant.
Dates of hearing: 4th and 10th November, 1999.
2000 M L D 1574
[Peshawar]
Before Talat Qayum Qureshi, J
KHANWAIZ‑‑‑Petitioner
Versus
THE STATE and another‑‑‑Respondents
Criminal Miscellaneous Application No.62 of 2000, decided on 10th April, 2000.
Criminal Procedure Code (V of 1898)‑‑
‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail, grant of‑‑‑Bail was sought by accused on sole ground of his sickness‑‑‑Trial Court on the plea that accused was of unsound mind had referred accused to Mental Hospital where doctor after examining the accused had reported that he was suffering from Chronic Schzophenia‑‑‑Treatment of accused in jail was not possible as the same required combined use of drug physiotherapy and supported therapy‑ Parents of accused and his near relatives could help accused in their way of dealing to reduce his‑suffering ‑‑‑Accused, in circumstances, was admitted to bail.
Abdul Shakoor Khan for Petitioner.
Haji Sabir Hussain Tanoli for Respondents.
Date of hearing: 10th April, 2000.
2000 M L D 1638
[Peshawar]
Before Sardar Muhammad Raza, C.J, and Mrs. Khalida Rachid, J
Mst. FARHAD‑‑‑Petitioner
Versus
ADDITIONAL DISTRICT JUDGE‑II, MARDAN and 2 others‑‑‑Respondents
Writ Petition No. 1849 of 1997, decided on 29th March, 2000.
Muslim Family Laws Ordinance (VIII of 1961)‑‑‑
‑‑‑‑Ss.9 & 10‑‑‑West Pakistan Family Courts Act (XXXV of 1964), Ss.5, Sched. & 14‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Suit for maintenance and dower‑‑‑Dower and dowery‑‑Distinction‑‑‑Wife in her suit for maintenance and dower had claimed gold ornaments and a house as dower‑‑‑Family Court decreed the suit, but Appellate Court in appeal dismissed the claim of wife‑‑‑Claim of wife qua ornaments and house was specifically mentioned in dower/deed/kabinnama‑‑‑Wife who admittedly had received gold ornaments at the time of marriage had contended that gold ornaments which were given at the time of Nikah were part of dowery but were snatched and kept into possession by the husband‑‑‑Contention was devoid of force because dowery were those articles which were given to wife by parents at the time of "Rukhsati" whereas dower was a right of wife which was. always paid or to be paid in lieu of marriage by husband‑‑‑Dower once paid, liability of same would be satisfied‑‑‑Taking away of dower by husband after marriage could be considered as loan/credit, return of which could only be sought through civil suit‑‑‑Wife was entitled to payment of dower in shape of house which had been given to her in dower by husband as per dower deed.
Safirullah Khan, A.A. G. for Petitioner.
Nemo for Respondent No.3.
Date of hearing: 29th March, 2000
2000 M L D 1643
[Peshawar]
Before Nasirul Mulk and Tariq Parvez. JJ
Haji GHULAM SARWAR and another‑‑‑Petitioners
Versus
Pir AKBAR DIN and 3 others‑‑‑Respondents
Writ Petition No.274 of 1993, decided on 3rd May, 2000.
Frontier Crimes Regulation (III of 1901)-‑‑
‑‑‑‑Ss.8 & 11‑‑‑Supreme Court and High Court (Extension of Jurisdiction to Certain Tribal Areas) Act (XXVII of 1973), Ss.2 & 3‑‑‑Constitution of~ Pakistan (1973), Arts. 199 & 247‑‑‑Constitutional petition‑‑‑Suit for recovery of amount in Court of Assistant Political Agent‑‑‑Maintainability‑‑‑Suit was resisted on ground that Court of Assistant Political Agent had no jurisdiction to decide suit ‑‑‑Defendants were ordered to be arrested by Court of Assistant Political Agent till payment of disputed amount to plaintiff despite no decree was passed in that respect‑‑‑Validity‑‑‑Defendants were not residents of Tribal Area, but were residents of Peshawar‑‑‑Alleged business transaction took place in Peshawar and not in Tribal Area and cheques and documents produced by plaintiff in proof of his claim were issued and executed in Peshawar and not in Tribal Area‑‑‑Mere fact that plaintiff belonged to Tribal Area, Court of Assistant Political Agent, could not assume jurisdiction in the matter‑‑‑Defendants belonged and resided in settled, area and not in Tribal Area and as business transaction, if any, between parties, and issuance of cheques in favour of plaintiffs had all taken place in settled area, jurisdiction over matter would rest with ordinary Courts of settled area and not Political Authorities in the Tribal Area‑‑‑Jurisdiction of High Court could not be ousted within purview of Art.247 (7) of Constitution of Pakistan (1973)‑‑High Court under. Art.199 of the Constitution would have jurisdiction to look into the matter and protect rights of citizens of State as guaranteed under the Constitution ‑‑‑All actions taken, orders passed and proceedings pending before Political Authorities between parties, were declared to be illegal by High Court in exercise of its Constitutional jurisdiction.
PLD 1981 Pesh. 57; PLD 1969 SC 344; Piao Gul v. The State PLD 1960 SC (Pak.) 307; Dasso's case PLD 1958 SC (Pak.) 533; Sar Khan's case PLD 1967 SC 149; Superintendent, Land Customs Torkham (Khyber Agency) v.. Zewar Khan and 2 others PLD 1969 SC 489; Abdur Rehman and others v. The State PLD 1971 Pesh. 61; Malik Noor Badshah v. Deputy Commissioner, Kohat PLD 1980 Pesh. 265; Muhammad Saddiq and others v. Government of Pakistan 1981 SCMR 1022; Nabi Bakhsh and others v. State PLD 1991 Pesh. 10; Haji Saleem Khan and others v. Commissioner, FCR, Kohat 1996 CLC 1702 and Qaum Bangash and others v. Qaum Turi and others 1991 SCMR 2400 ref.
Saeed Baig for Petitioners.
Muhammad Amin Khattak for Respondent No. 1.
Date of hearing: 3rd May, 2000.
2000 M L D 1676
[Peshawar]
Before Sardar Muhammad Raza Khan, C. J. and Shah Jehan, J
Haji MOHIBULLAH and another‑‑‑Petitioners
Versus
SHEIKH‑UL‑ISLAM and 2 others‑‑‑Respondents
Writ Petition No. 1680 with Civil Miscellaneous No.2328 of 1999, decided on 2nd May, 2000.
Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑Ss. 47 & 115‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Execution of decree having attained finality, petitioner filed revision against said decree before High Court and High Court dismissed the same with certain observations‑‑‑Observations of High Court were not a finding but were given to utter detriment of opposite‑party which party was not before the Court‑‑‑Validity‑‑‑Such observations would amount to a substantial change in nature of decree which had already become final and could not be changed in revision petition filed in consequence of execution proceedings‑‑‑Observations being void and without jurisdiction were set aside and Constitutional petition being based on sheer mala fides was dismissed in circumstances.
Qazi Zakiuddin for Petitioners.
Ghulam Jan Niazi for Respondents.
Date of hearing: 2nd May, 2000.
2000 M L D 1726
[Peshawar]
Before Abdur Rauf Khan Lughmani, J
ABDUR RASHID and 12 others‑‑‑Petitioners
Versus
CHIEF SETTLEMENT COMMISSIONER/DEPUTY COMMISSIONER, D.I. KHAN and 5 others‑‑‑Respondents
Writ Petition No.3 of 1992, decided on 26th May, 2000.
Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑
‑‑‑‑Ss.10 & 11‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Past and closed transaction‑‑‑Canceling of land allotted to the petitioner, after twenty years of its allotment‑‑‑Litigation between petitioner and the Authorities went up to the Supreme Court which was finally decided in favour of the petitioner‑‑‑Authorities subsequent to that found the land allotted in favour of the petitioner in excess of his entitlement‑‑‑Excess allotment was cancelled on such ground and the same was allotted in favour of the respondent‑‑‑Validity‑‑‑Where the allotment had attained finality after the verdict of Supreme Court, the same should not be made a subject‑matter of further debate by running from post to pillar in one shape or the other by hook or by crook on flimsy grounds‑‑‑Said land being not available for allotment same could not be allotted to the respondent‑‑‑Allotment of land in favour of the respondent being the result of wrong assumption of powers, same was set aside.
Qazi Muhammad Anwar and Gohar Zaman Kundi for Petitioner.
H. Saeedullah Khan for Respondents Nos. l and 2.
S. Zafar Abbas Zaidi and Dost Muhammad Khan for Respondents Nos.4 to 6.
Date of hearing: 11th December, 1998.
2000 M L D 1737
[Peshawar]
Before Abdur Rauf Khan Lughmani, J
GHULAM FARID‑‑‑Petitioner
Versus
MUHAMMAD ASLAM KHAN and 26 others‑‑‑Respondents
Civil Revision No.37 of 1994, decided on 26th May, 2000.
(a) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S.42‑‑‑Suit for declaration‑‑‑Mortgaged property‑‑‑Wrong entries in Revenue Record‑‑‑Defendants claimed that they had remained as mortgagees for a period of more than sixty years and had matured their title to mortgaged property by way of prescription‑‑‑Time old record‑of‑rights had proved that the land in question stood redeemed long before and the defendant had no legs to stand upon their plea‑‑‑Validity‑‑‑Findings of Trial Court on that score were based on correct appraisal of evidence and the same were upheld‑‑‑Judgments and decrees of both the Courts below were set aside and the suit of the plaintiff was decreed.
(b) Limitation Act (IX of 1908)‑‑
‑‑‑Art.120‑‑‑Suit for correction of entries in Revenue Record‑‑‑Limitation, starting point of‑‑‑Period for such entries under the provision of Art. 120 of Limitation Act, 1908 is six years‑‑‑Limitation runs as soon as the defendant has openly and expressly challenged the plaintiff's title to the property in suit by casting cloud or shadow over it.
(c) Specific Relief Act (I of 1877)‑‑‑‑‑
‑‑‑‑S. 42‑‑‑Suit for declaration‑‑‑Limitation‑‑‑Accrual of fresh cause of action‑‑‑Effect‑‑‑Possibility of fresh cause of action for declaratory relief is recognized‑‑‑Plaintiff seeking a declaration is entitled to sue upon each successive invasion of his right‑‑‑Time runs anew when there is a fresh attack on plaintiff's title or a fresh denial of the right.
S. Zafar Abbas Zaidi for Petitioner.
M. Saadullah Khan Miankhel and Muhammad Iqbal Farooqi for Respondents.
Date of hearing: 6th October, 1998.
2000 M L D 1740
[Peshawar]
Before Talat Qayum Qureshi, J
SHAH HANIF and 20 others‑‑‑Applicants
Versus
Col. YAR MUHAMMAD KHAN and 7 others‑‑‑Respondents
Civil Miscellaneous No. l with No. 3 of 1998, decided on 22nd May, 2000.
(a) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑S.12(2)‑‑‑Decree, setting aside of‑‑‑Framing of issues and holding of inquiry‑‑‑Scope‑‑‑Where in application under S.12(2), C.P.C. no specific allegation was made about fraud and there existed no prima facie case or reasonable grounds for setting aside the decree, insistence upon inquiry would be to insist, to an exercise in futility.
(b) Civil Procedure Code (V of 1908)‑‑
‑‑‑‑S.12(2)‑‑‑Decree, setting, aside of‑‑‑No fraud committed during pendency of lis‑‑‑Fraud was alleged to be played in execution of an agreement which was executed much before institution of the suit‑‑‑Validity‑‑‑Where the agreement was executed before the lis was initiated, the provision of S.12(2), C.P.C. was not attracted‑‑‑Application under S.12(2), C.P.C. did not make out a prima facie case and no reasonable ground existed to set aside the decree in question‑‑‑Application was dismissed in circumstances.
Nathu Khan v. Muhammad Rafique 1987 CLC 1501; Begum Anwari Alain Sheikh v. Messrs Passcom (Pvt.) Ltd. and another 1993 MLD 155; Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296; Mst. Ume Kalsoom v: Zahid Bashir through Legal. Heirs and another 1999 SCMR 1696; Zar Wali v. Muhammad Ilyas PLD 1996 Pesh. 25 and Lal Din and another v. Muhammad Ibrahim PLD 1988 Lah. 398 ref.
Muhammad Hussain Lughmani for Applicants.
Syed Sajjad Hussain Shah for Respondents.
Date of hearing: 5th May, 2000.
2000 M L D 1855
[Peshawar]
Before Mian Shakirullah Jan, J
ABDUL AZIZ and others‑‑‑Petitioners
versus
MUHAMMAD MISKEEN and 8 others‑‑‑Respondents
Civil Revision No. 377 of 1994, decided on 5th May, 2000.
Easements Act (V of 1882)‑‑‑
‑‑‑‑S.13‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Easement of necessity, right of‑‑‑Alternate path available to the petitioners‑‑‑Concurrent findings of facts by both the Courts below‑‑‑Trial Court restrained the petitioners from using the land owned by respondents as a thoroughfare‑‑‑Judgment and decree of the Trial Court was upheld by the Appellate Court ‑‑‑Validity‑‑Where joint properties of the petitioners touched the main road, they themselves could make arrangements of their approach from the main road‑‑‑No flaw in the concurrent findings of both the Courts below had been found to make a case for interference in revisional jurisdiction.
Qazi Muhammad Ishaq v. Abdul Waheed PLD 1975 Pesh. 82; Abdul Ghaffar v. Abdus Sattar and another PLD 1959 Dacca 491; Aghore Bandhu Guha and others v. Mukul Kumar Roy and others PLD 1959 Dacca 891 distinguished.
Abdul Hamid Shah v. Muhammad Yar and 13 others PLD 1991 SC 815 and Abdul Karim v. Ali Zaman and others 1993 MLD 1481 ref.
Tariq Khan Tanoli for Petitioner.
Khalil‑ur‑Rehman for Respondents.
Date of hearing: 5th May, 2000.
2000 M L D 1868
[Peshawar]
Before Abdur Rauf Khan Lughmani; J
Nawabzada NIAMAT KHAN and another‑‑‑Petitioners
versus
QAIZAR KHAN and 42 others‑‑‑Respondents
Civil Revision No.48 of 1994, decided on 3rd April, 2000.
Muhammadan Law‑‑‑
‑‑‑‑Inheritance‑‑‑Release deed in favour of defendant‑‑‑Effect‑‑‑Partition suit was decreed by Trial Court‑‑‑Appellate Court upheld the findings of the Trial Court and appeal was dismissed‑‑‑Validity‑‑‑Release deed relied upon by defendant did not stand in the way of the plaintiff to inherit his legal share in the property left by his predecessor‑in‑interest, as he was undisputedly son of the deceased‑‑‑Both the Courts below had concurrently held the plaintiff entitled to his share in the property‑‑‑Where the defendant failed to point out any illegality, irregularity, misreading of the evidence or non‑reading of material evidence or any jurisdictional error in coming to the concurrent findings of fact, judgments and decrees of both the Courts below did not require any interference by the High Court in revision.
S. Mushtaq Ali Shah for Petitioner No. 1.
Dost Muhammad Khan, Khuda Bakhsh Baloch, S. Allah Nawaz Khan Sadozai, Minhajuddin Alvi and Abdur Rashid Khan for Respondents.
Date of hearing: 3rd April, 2000.
2000 M L D 1879
[Peshawar]
Before Sardar Muhammad Raza, J
ABDUL BARI ‑‑‑Petitioner
versus
DIL AFROZ‑‑‑Respondent
Civil Revision No.2 alongwith Criminal Miscellaneous Applications Nos. 1 and 2 of 2000, decided on 17th April, 2000.
(a) West Pakistan Civil Courts Ordinance (II of 1962)‑‑
‑‑‑‑S.18‑‑‑Civil Procedure (:ode (V , of 1908), S.106‑‑‑Assuming of jurisdiction by Appellate Court against interlocutory order ‑‑‑Scope‑‑Appellate Court under the provision of S.18 of West Pakistan Civil Courts Ordinance, ‑1962 assumes jurisdiction on the basis of valuation fixed in the plaint and not on the basis of a decree granted or refused‑‑‑Forum of appeal against interlocutory orders is the same which has the jurisdiction to entertain the appeals against decrees under the provisions of S.106, C.P.C.
(b) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O. XXXIX, ‑ Rr. 1 & 2‑‑‑West Pakistan Civil Courts Ordinance (II of 1962),. S.18‑‑‑Interim injunction, grant of‑‑‑Wrong forum of appeal‑‑‑Plaint was valued for the purposes of jurisdiction, and court‑fee at Rs.29,22,800‑‑Trial Court refused to grant interim injunction and the order was upheld by Lower Appellate Court‑‑‑Validity‑‑‑Interlocutory order in view of the valuation fixed was required to be challenged before the High Court and not before the Lower Appellate Court‑‑‑Appeal before Lower Appellate Court was filed without jurisdiction and order passed by the Court was without jurisdiction and void ab initio‑‑‑Where no appeal was filed before High Court and limitation period had also elapsed, order of the Trial Court would become final‑‑‑Such order of Trial Court could not be challenged in appeal before High Court.
Mian Fazli Amin for Petitioner.
2000 M L D 1890
[Peshawar].
Before Abdur Rauf Khan Lughmani, J
MUHAMMAD AYYAZ‑‑‑Petitioner
versus
FAIZULLAH KHAN and 21 OTHERS ‑‑‑ Respondents
Civil Revision No. 165 of 1994, decided on 26th May, 2000, (a) Civil Procedure Code (V of 1908)‑‑
‑‑‑‑S.115‑‑‑Revisional jurisdiction, exercise of‑‑‑Scope‑‑‑Concurrent findings of fact‑‑‑High Court is not supposed to interfere with concurrent findings of fact by the Courts below unless the Courts have exercised a jurisdiction not vested in them or have failed to exercise the jurisdiction or that in exercise of its jurisdiction, the Courts have acted illegally, and with material irregularity.
(b) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S.42‑‑‑Suit for declaration‑‑‑Wrong entries in Revenue Record‑‑‑Principle of estoppel ‑‑‑Applicability‑‑‑Plaintiff on the basis of wrong entries in the Revenue Record earlier filed a suit for pre‑emption and thereafter, when such entries were corrected suit for declaration was filed‑‑‑Contention raised by the defendant was that once the suit land was pre‑empted on the basis of tenancy the plaintiff was estopped to raise a contradictory plea of claiming ownership in a declaratory suit‑‑‑Validity‑‑‑Where the plaintiff was recorded as tenant in the cultivation column as a result of wrong entries, pending correction of such entries through a legal process, pre‑empting the suit land could not be said to be hurdle to prevent him from seeking his legal rights‑‑Filing of pre‑emption suit did not amount to an estoppel ‑‑‑No jurisdictional error was committed nor the findings of facts concurrently reached at by the Courts below were found defective as the same were based upon the evidence duly supported by Revenue Record and as such was not a result of either misreading of evidence or non‑reading of material evidence.
Malik Hidayatullah and 2 others v. Murad Ali Khan PLD 1972 SC 79 ref.
S. Zafar Abbas Zaidi for Petitioner.
Dost Muhammad Khan for Respondents.
Date of hearing: 11th January, 1999.
2000 M L D 744
[Punjab Bar Council Tribunal]
Before Mr. Justice Tassaduq Hussain Jilani, Chairman, Mian Muhammad Ameen Kalanauri and Rana Ikram Ullah Khan, Members
Mst. ZOHRA BEGUM---Petitioner
versus
MUHAMMAD NAWAZ SHAD, ADVOCATE, RAWALPINDI ---Respondent
File No139 of 1998, decided on 16th October, 1999.
Legal Practitioners and Bar Councils Act (XXXV of 1973)--
---S 41--Legal Practitioners and Bar Councils Rules, 1976, R. 145--- Misconduct---Counsel and client, relationship of---Copy of mutation was provided to the counsel for filing in the suit filed by the client---Counsel, -'instead of filing the same filed a suit against the client, on the basis of copy of said mutation---Contention by counsel was that copy of mutation was not provided by client and suit filed was pertaining to some other property--Validity---Nothing had been shown by the counsel to indicate that document was relatable to property other than the one which was subject-matter of the suit filed by counsel on behalf of the client and the mutation was with regard to the same property---Such a conduct of counsel did fall within the mischief of S.45 of Legal Practitioners and Bar Councils Act, 1973 read with 8.145 of Legal Practitioners and Bar Councils Rules, 1976---Charge being of serious nature licence of the counsel was suspended for six months in circumstances.
Manzoor Ahmad Rana for Petitioner.
Respondent in person.
Ghulam Haider Alghazali, Addl. A.-G.
Date of hearing: 16th October, 1999.
2000 M L D 68
(Quetta)
Before Iftikhar Muhammad Chaudhary, C. J.
and Raja Muhammad Fayyaz, J
Messrs SADDIQ SONS TIN PLATE LTD. through Attorney‑‑‑Petitioner
versus
GOVERNEMNT OF BALOCHISTAN, LOCAL GOVERNMENT RURAL DEVELOPMENT AND AGRICULTURAL DEPARTMENT through Civil Secretariat, Quetta and another‑‑‑Respondents
Constitutional Petition No.434, 448 and 474 of 1998, decided on 14th June, 1999.
Balochistan Local Government Ordinance (II of 1980)
‑‑‑‑S. 70‑=‑West Pakistan Municipal Committees Octroi Rules, 1964, R. 136‑‑Government of Balochistan Rules of Business, 1976, Rr. 5, 38 & 39‑‑Notification No.50259/97 (BLGB) A.O.‑IV, dated 12‑12‑1998‑‑‑Constitution of Pakistan .(1973), Art. 199‑‑‑Constitutional petition‑‑‑Exemption of octroi and export taxes‑‑‑Withdrawal‑‑‑Power of Chief Minister‑‑‑Notification No.50259/97 (BLGB)A.O.IV, dated 12‑11‑1998 provided exemption from payment of octroi duty and Zila Tax to petitioner for a period of ten years‑‑Despite issuance of said notification Administrator and Octroi Contractor having insisted upon petitioner for making payment of octroi, petitioner filed Constitutional petition seeking directions that respondent be restrained to demand octroi as it had been exempted ‑‑‑Octroi Contractor also filed Constitutional petition against the notification whereby exemption was granted to the petitioner‑‑‑Authorities during pendency of Constitutional petitions, withdrew earlier Notification, dated 12‑11‑1998, as per order of the Provincial Chief Minister‑‑‑Petitioner in his subsequently filed Constitutional petition had challenged order withdrawing the Notification‑‑‑Petitioner contended that Chief Minister was not competent to withdraw said notification issued by concerned department by observing procedure laid down under relevant sections of Balochistan Local Government Ordinance, 1980 and Rules thereunder‑‑Validity‑‑‑Chief Minister under Rr. 38 & 39(5), Government of Balochistan Rules of Business, 1976 having overall charge of affairs of Government was empowered to withdraw at any moment Notification or order even if passed by concerned Department with concurrence of concerned Minister‑‑‑Notification earlier issued by concerned Authority was competently withdrawn by the Chief Minister.
Aftab Ali v, The State and 2 others PLD 1978 Kar. 807; 1979 SCMR 17; Messrs New National Mining Corporation v, Government of Balochistan and 2 others PLD 1977 Quetta 15; Gul Naras Khan v. The Governor, N.‑W.F.P. PLD 1981 Pesh. 87 and Inayataullah and others v. Principal, Balochistan Agricultrual College and others PLD 1991 Quetta 63 ref.
H. Shakil Ahmed for Petitioner (in C.Ps. Nos. 434 and 474 of 1998).
Malik Sikandar Khan, A.‑G. for Respondents (in C.P. No.434 of 1998)
K.N. Kohli for Respondent No.3 (in C.P. No. 434 of 1998).
K.N. Kohli for Petitioner (in C.P. No. 448 of 1998).
Date of hearing: 27th May, 1999.
2000 M L D 87
[Quetta]
Before Aman Ullah Khan Yasinzai, J
Dr. ARBAB ALI AHMAD and another‑‑‑Appellants
versus
SARWAR KHAN and others‑‑‑Respondents
First Appeal from Orders Nos. 103 and 104 of 1998, decided on 26th March, 1999.
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑
‑‑‑‑S. 13‑‑‑Bona fide personal need of landlord‑‑‑Son of landlord passed Matriculation Examination and had no interest to study further and wanted to do business in the premises‑‑‑Son of landlord had taken admission in F.Sc. Premedical‑‑‑Fact that during the pendency of eviction application son of landlord employed himself in gainful occupation, would not negate the assertion of bona fides of landlord to get the premises vacated‑‑‑Question of personal bona . fide use and occupation of son of landlord having been independently proved by landlord if son of landlord, during the pendency of proceedings got admission in college and landlord had also filed eviction application on the ground of default which was dismissed, same would not negate the assertions of bona fides on part of landlord‑‑‑Eviction applications filed by landlord was allowed by the High Court and tenants were directed to vacate the shops in dispute and hand over vacant possession of the same to the landlord within a period of four months in circumstances.
Saeed Ahmad v. Tariq Nazeer Butt and another 1987 SCMR 220 and Messrs F.K. Irani & Co. v. Begum Feroz 1996 SCMR 1178 rel.
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑
‑‑‑‑S. 13‑‑‑Bona fide personal need of landlord‑‑‑Eviction application of two shops at the same time on the ground of personal use‑‑‑Validity‑‑‑Law gives landlord choice that if he states that he needs two shops at the same time his statement has to be given due weight, if same was confidence inspiring.
Dildar Hussain Nayyar v Niaz Muhammad Dar and another 1985 SCMR 1769 rel. , Tariq Mehmood for Appellant. Syed Ayaz Zahoor for Respondents
Date of hearing: 29th March, 1999.
2000 M L D 605
[Quetta]
Before Mir Muhammad Nawaz Marri and Fazal-ur-Rehman, JJ
STATE through Advocate-General, Balochistan---Appellant
versus
ABDUL SATTAR and 2 others---Respondents
Criminal Acquittal Appeal No. 109 of 1999, decided on 11th October, 1999.
(a) Penal Code (XLV of 1860)---
----S.302/34---Criminal Procedure Code (V of 1898), S.417(1)---Appeal against acquittal ---Abscondence---Effect---Trial Court had ignored the unexplained long abscondence of two accused which was a strong circumstance supporting the prosecution case against them ---Abscondence by itself, no doubt, was not sufficient for conviction of accused, .but was a strong piece of corroborative evidence of the other direct and circumstantial evidence in the case---Antecedents of the absconders, their occupational habits and limitations, period of abscondence and specific explanation for the same were all to be considered in juxtaposition with the other evidence on record---No material contradictions had apparently appeared in the evidence of the prosecution witnesses relating to the material part of the prosecution story which had not been properly discussed by the, Trial Court and no convincing reasons had been given to disbelieve the same---Minor contradictions in the evidence which did not relate to the main occurrence were ignorable as only material contradictions were to be considered--- Omission to mention the names of witnesses or accused in the site plan could not take away the probative force of the ocular testimony in the case---Due to wrong approach to the case and misreading of the record by the Trial Court a miscarriage of justice had resulted in the case and it was difficult to decide the fate of the accused on the evidence in the absence of any explanation etc. from the side of two accused who had remained absconders during the trial---Order of acquittal passed by Trial Court was set aside by High Court in circumstances and the case was remanded to the Trial Court to conduct de novo trial from the stage of examination of accused in accordance with law.
1998 SCMR 1814; 1997 SCMR 254; PL15 1951 FC 107; PLD 1969 SC 398; 1980 SCMR 81; 1992 SCMR 96; 1992 SCMR 983; 1992 SCMR 1036; 1994 SCMR 1257; PLD 1964 SC 795-B; PLD 1976 Lah 1403; 1994 PCr.LJ 1069; 1989 PCr.LJ 1453; PLD 1989 SC 440; 1976 PCr.LJ 24; 1968 SCMR 1361; 1978 SC 171; 1974 PCr.LJ Note 105 at p.66 and PLD 1990 SC 1176.
(b) Criminal Procedure Code (V of 1898)---
----S.417---Penal Code (XLV of 1860), S.302/34---Appeal against acquittal---Principles---Finding of acquittal is not sacrosanct if the reasons given are of speculative or artificial nature or the finding is based on no evidence or is the result of misreading or misinterpretation of evidence or the conclusions drawn as to the guilt or innocence of accused are perverse resulting into miscarriage of justice.
(c) Penal Code (XLV of 1860)---
----S.302/34---Appreciation of evidence---Factors adversely reflecting on the creditability of a witness not sufficient to discredit his whole testimony--Principle highlighted.
The maxim "falsus in uno falsus in omnibus" has not been accepted by the Courts in Pakistan as having universal application. If a witness makes any contradiction, improvement, or other factors which may adversely reflect on his credibility would not by itself be sufficient to reject his testimony as a whole. Court can rely upon the portion of his testimony if it is corroborated by other reliable evidence or circumstances. The Court often sifts the grain from the chaff while accepting or rejecting the evidence of a witness. Variations in the statements of prosecution witnesses which do not relate to material part of prosecution story or the salient important feature of the case can be ignored. According to principle laid down by the superior Courts minor contradictions in the evidence of a witness are to be overlooked, only material contradictions are to be considered. Similarly, no benefit can be given to an, accused in case of discrepancies regarding distances and directions by P.Ws. in cross-examinations, Contradictions in statements of witnesses are natural when they are examined after a long period from occurrence.
(d) Penal Code (XLV of 1860)--
----S.302/34---Appreciation of evidence---Site plan---Site plan itself is not a substantive piece of evidence so that it could contradict the ocular evidence in, the case---Site plan is prepared only to explain or to appreciate the evidence on record.
Noor Muhammad Achakzai, Add1.A.-G. for the State.
Ehsanul Haq for Respondents.
Complainant in person.
Date of hearing: 25th August, 1999.
2000 M L D 618
[Quetta]
Before Mir Muhammad Nawaz Marri and Fazal‑ur‑Rehman, JJ
GHOUS BAKHSH alias GHOUSA‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Criminal Appeal No. 211 of 1999, decided on 29th September, 1999.
(a) Control of Narcotic Substances Act (XXV of 1997)‑‑‑
‑‑‑‑S.9(c)‑‑‑Burden of proof‑‑‑Burden of proving its case beyond reasonable doubt rests on the prosecution and its duty does not change or vary even when no defence plea is taken by the accused or the same if taken is not proved or is found to be palpably false‑‑‑Defence plea is always to be considered in juxtaposition with the prosecution case and in the final analysis, if the defence plea is proved or accepted, then the prosecution case stands discredited/shattered‑‑‑If, however, the defence plea is substantiated to the extent of creating doubt in the credibility of the prosecution case, in that case too it would be enough.
1998 PCr.LJ 808 ref.
(b) Control of Narcotic Substances Act (XXV of 1997)‑‑‑
‑‑‑‑S.9(c)‑‑‑Appreciation of evidence‑‑‑Exclusive possession of the accused of the seized narcotics was not established by the prosecution‑‑‑Material contradictions in the statements of prosecution witnesses had also discredited the alleged recovery from the accused‑‑‑Accused was acquitted on benefit doubt in circumstances.
1998 PCr. LJ 808 ref.
Sohail Ahmed Rajput for Appellant Ikhlaq Ahmed Shah for the State.
Date of hearing: 21st September, 1999,
2000 M L D 725
[Quetta]
Before Iftikhar Ahmad Chaudhary, CJ
and Fazal‑ur‑Rehman, J
MAQSOOD AHMED ‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Criminal Appeal No. 165 of 1999, decided on 29th September, 1999.
Control of Narcotic Substances Act (XXV of 1997)‑‑‑‑
‑‑‑‑S.9(c)‑‑‑Appreciation of evidence‑‑‑Prosecution witnesses had supported the prosecution version whose evidence did not suffer from any material infirmity‑‑‑Recovery of narcotics during the search of the house was not denied by the accused, but his plea of having no concern with the same was not worthy of reliance for which he had failed to furnish any reasonable explanation‑‑‑Record did not reveal any mala fides of the police officials for having maliciously deposed against the accused and they could not be believed to have planted narcotics on the accused from their own source or to have substituted him for the real culprit ‑Conviction of accused was upheld in circumstances‑‑‑Quantity of recovered narcotics, however, having exceeded 10 Kgs., sentence awarded to accused by Trial Court was not in accordance with law‑‑‑State having not filed any appeal for enhancement of
sentence, Appellate Court was not vested with the suo motu authority or jurisdiction for enhancing the same in the appeal filed by the accused‑‑Appeal was dismissed accordingly.
1987 SCMR 17; PLD 1984 SC 278; 1986 SCMR 11; PLD 1987 FSC 22; PLD 1990 SC 1186; PLD 1990 SC 1176 and PLD 1996 Quetta 37 ref.
Inayatullah Kasi for Appellant.
Miss Iram for the State.
Date of hearing: 15th September, 1999.
2000 M L D 740
[Quetta].
Before Mir Muhammad Nawaz Marri and Fazal‑ur‑Rehman, JJ
ALI DOST‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Criminal Appeal No. 129 of 1999, decided on 15th November, 1999.
(a) West Pakistan Arms Ordinance (XX of 1965)‑‑‑
‑‑‑‑S.13‑E‑‑‑Appreciation of evidence‑‑‑Delay in lodging F.I.R. which had fully been explained was not fatal to prosecution case‑‑‑Accused had sustained injury at the spot and one Kalashnikov and three magazines containing eighty cartridges were recovered from personal possession of accused‑‑‑Such recovery of arms and ammunition effected from personal possession of accused had brought case against him within S.13‑E of West Pakistan Arms Ordinance, 1965‑‑‑Prosecution witnesses, though belonged to Police Department and scouts, but having no ill‑will against accused would be competent witnesses and their evidence could not be discarded‑‑‑Such witnesses had supported prosecution case and nothing was on record to show that they were deposing against accused maliciously or out of animus was not believable that officials of agencies would plant arms and ammunition on accused from their own source‑‑‑Prosecution having established its case against accused he was rightly convicted and sentenced.
(b) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑Ss.59 & 103‑‑Search and arrest of accused by private person‑‑Mandatory requirements as to search and recovery would not apply to personal search of accused and same could not invalidate the search‑‑Provisions of S.103, Cr.P.C. were relatable to place and not to the person‑‑Even a private person could arrest any person who committed a non‑bailable and cognizable offence as per provisions contained under S.59, Cr.P.C.
PLD 1996 SC 67 ref.
Amanullah Kanrani for Appellant. Noor Muhammad Achakzai, Addl. A.‑G. for the State.
Date of hearing: 18th October, 1999.
2000 M L D 1415
[Quetta]
Before Fazal‑ur‑Rehman, J
DEWAN CHAND and others‑‑‑Petitioners
Versus
BALOCHISTAN LOCAL COUNCIL ELECTION AUTHORITY‑‑‑Respondent
Civil Petition No.514 of 1999, decided on 20th July, 1999.
Baluchistan Local Government (Election) Rules, 1983‑‑‑
‑‑‑‑R. 14(1)(3)‑‑‑Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2‑‑‑Election of local council for seats of Special Interest‑Group ‑‑‑Interim stay restraining respondents from holding election of Chairman of Local Council‑‑‑Validity and entitlement to‑‑‑Notification whereby respondents were declared as successful candidates, had been sought to be suspended by petitioners by way of stay order‑‑‑Respondents who were declared returned/successful candidates by impugned notification, had taken oath and their success and taking of oath were not challenged by the said petitioners who had participated in election, but remained unsuccessful‑‑‑Authorities prima facie had not violated any law or procedure or acted illegally in exercise of jurisdiction as to warrant issuance of temporary injunction and restrain respondents from holding election of Chairman‑‑‑Courts in exercise of their inherent power seldom interfere with carrying out of functions and public duties of Public Authorities‑‑‑No ground for grant of stay was made out and stay order in circumstances of case, was likely to create complication and balance of convenience lay in not issuing stay order‑‑‑Stay application was dismissed, in circumstances.
1994 SCMR 1299; PLD 1993 Quetta 24; PLD 1998 Kar. 11; PLD 1972 SC 279 and PLD 1966 (W.P.) Lah. 335 ref.
Amanullah Kanrani for Petitioners.
A.G. for Respondent.
Date of hearing: 19th July, 1999.
2000 M L D 1504
[Quetta]
Before Raja Fayyaz Ahmed and Fazal-ur-Rehman, JJ
GHULAM FAROOQ alias GHULAM QASIM---Appellant
Versus
THE STATE---Respondent
Criminal Jail Appeal No. 138 and Criminal Appeal No. 251 of 1999, decided on 15th March, 2000.
(a) Criminal Procedure Code (V of 1898)---
----Ss. 234 & 239---Joint trial---Provisions of Ss.234 & 239, Cr.P.C. were merely permissive and not mandatory---Prosecution was to try, accused, on different offences in one trial provided by Ss.234 & 239, Cr.P.C. but in case prosecution decided to split charges and try accused separately on those charges, accused could not insist on joinder of charges.
(b) Criminal Procedure Code (V of 1898)---
----Ss. 234, 235 & 239---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Joint trial---Recoveries of Charas and opium had been effected from the personal possession of individual accused---Neither prosecution had applied S.34, P.P.C. nor charge had been framed nor any evidence had come on record which could indicate that both accused had shared common intention nor there was any connection between acts and transactions of the two accused nor any evidence had come on record regarding joint possession nor a question regarding joint possession of narcotics or common intention had been put to accused, while examining them under S.342, Cr.P.C.---Both accused having been convicted under S.9(c) of Control of Narcotic Substances Act, 1997 it could not, in circumstances, be said that offences were so connected as to form one and same transaction or had been committed in course of the same transaction--Different kinds of narcotics were stated to have been recovered from accused individually which could not suggest joint possession and common intention---Said offences had to be tried separately and their joint trial was irregular---Conviction and sentence were set aside and case was remanded for retrial.
PLD 1965 (W.P.) Pesh. 65 ref.
Muhammad Aslam Chishti for Appellant (in Criminal Jail Appeal No. 138 of 1999).
Tariq Mehmood for the State (in Criminal Jail Appeal No. 138 of 1999)
Muhammad Aslam Chishti for Appellant (in Criminal Appeal No. 251 of 1999).
Tariq Mehmood for the State (in Criminal Appeal No. 251 of 1999)
Date of hearing: 2nd March, 2000
2000 M L D 1508
[Quetta]
Before Javed Iqbal, C.J. and Aman Ullah Khan Yasinzai, J
GOVERNMENT OF BALOCHISTAN through Advocate-General, Balochistan --- Appellant
Versus
MUHAMMAD MURAD ABRO---Respondent
Criminal Acquittal Application No.49 of 1999, decided on 27th April, 2000.
Criminal Procedure Code (V of 1898)---
----S. 540---Recalling of witness for re-examination---Court under S. 540, Cr.P.C. had been empowered to recall and re-examine any person already examined---Very object of S.540, Cr.P.C. was to enable Court to get at the truth which was primary duty imposed upon it---If some fact or grounds were brought to the notice of the Court which would on re-consideration, lead to discovery of truth, then Court should not knock out application for recalling witness on mere technicalities.
Gul Muhammad v. Allah Ditta PLD 1960 (W.P.) Lah. 443; West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi 1973 SCMR 555 and Muhammad Azam v. Muhammad Iqbal and others PLD 19&3 SC 95 ref.
Ashraf Khan Tanoli, Asstt. A.-G. and Ghulam Mustafa Mengal, Asstt. A-G. for Appellant.
S.A.M. Qadri for the Complainant.
Raja M. Afsar for Respondent.
Dates of hearing: 29th February and 1st March, 2000.
2000 M L D 1522
[Quetta]
Before Aman Ullah Khan Yasinzai and Fazal‑ur‑Rehman, JJ
ZAHID HUSSAIN ‑‑‑Appellant
Versus
THE STATE‑‑‑Respondent
Special Criminal Appeal No.6 of 1999, decided on 15th March, 2000
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 409‑‑‑Prevention of Corruption Act (II of 1947), S.5 (2)‑‑Appreciation of evidence‑‑‑ Allegation against accused was that he being incharge of wheat procurement centre had criminally misappropriated wheat bags by resorting to illegal means and had committed offence punishable under S.409 and under S.5(2) of Prevention of Corruption Act, 1947‑‑‑No letter regarding appointment of accused as incharge of centre had been validly brought on record by the prosecution‑‑‑Evidence available on record was not sufficient to lead to a conclusion that accused had committed offence alleged against him‑‑‑Where charge against accused was one of criminal breach of trust, prosecution must prove not only entrustments of or domain over property, but also that accused had either dishonestly misappropriated, converted, used or disposed of that property himself or that he wilfully suffered some other person to do so‑‑‑Prosecution must affirmatively prove said ingredients of offence‑‑‑Prosecution having not been able to establish its case against accused, same was doubtful in nature and prosecution evidence could not be relied upon for conviction of accused‑‑‑Benefit of doubt was extended to accused and conviction and sentence awarded to him by Trial Court were set aside and accused was acquitted of the charge against him
Shakir Hussain v. The State PLD 1956 SC 417; PLD 1962 SC 489 and 1981 SCMR 573 ref.
Ali Ahmed Kurd for Appellant.
Noor Muhammad Achakzai, Add1.A.‑G. for the State.
Date of hearing: 24th February, 2000.
2000 M L D 1919
[Quetta]
Before Aman Ullah Khan Yasinzai, J
HABIBULLAH‑‑‑Plaintiff/Petitioner
versus
ASSISTANT COMMISSIONER, ZIARAT and 8 others‑‑‑Defendants/Respondents
Civil Revision No.39 of 1998, decided on 17th September, 1999.
Civil Procedure Code (V of 1908)‑‑‑‑
‑‑‑‑O.VI, R.17 & S.115‑‑‑Pleadings, amendment of‑‑‑Amendment of pleadings was sought at the stage of revision before High Court‑‑‑Scope‑Dispute between the parties was regarding excavation of well ‑‑‑Plaintiff according to the agreement was restrained to excavate the disputed well whereas the defendants did not comply with the conditions of the agreement‑‑‑Suit was dismissed by the Trial Court so was the appeal ‑‑‑Lower Appellate Court while deciding the appeal observed that in presence of the agreement relief claimed by the plaintiff could not be granted ‑‑‑Plaintiff alongwith the revision petition filed application seeking amendment of the plaint‑‑‑Validity‑‑‑Object of O. VI, R.17, C.P.C. was that the Court might, at any stage of the proceedings allow either party to amend his pleadings as might be just and proper‑‑‑Such amendment could be made as might be necessary for the purpose of determining the actual questions in controversy between the parties‑‑‑Plaintiff through his evidence brought on record had established that the agreement had become unenforceable and invalid against the plaintiff as the same had not been implemented in letter and spirit by the other parties‑‑‑Amendment sought would not alter the nature of suit and the cause of action would not be changed, as the same would resolve the entire dispute between the parties, saving them from multiplicity of proceedings‑‑‑High Court, keeping in view the observation of the Lower Appellate Court allowed the amendment and the judgments and decrees of both the Courts below were set aside and case was remanded to the Trial Court.
Mir Mazar v. Azeem PLD 1993 SC 332 ref.
Basharatullah for Petitioner.
Respondents Nos. l and 2 (not present).
Naeem Akhtar for Respondents Nos.3 to 9.
Date of hearing: 3rd September, 1999.
2000 M L D 2007
[Quetta]
Before Aman Ullah Khan Yasinzai, J
ABDUL AZIZULLAH and others‑‑‑Appellants
versus
ANJUMAN ASNA ASHRIA AND HELIYAN-E‑NAH DAGH (REGD.) and others‑‑‑Respondents
First Appeal from Orders Nos. 15 to 25 of 2000 and 132 of 1999, decided on 7th July, 2000.
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑
‑‑‑‑S. 13‑‑‑Societies Registration Act (XXI of 1860), S.6‑‑‑Ejectment proceedings‑‑‑Maintainability‑‑‑Premises was under the control of a registered society‑‑‑No resolution was passed by the society authorizing the President of the Society to file the eviction application‑‑‑Contention by the tenants was that the ejectment application was not filed by competent person‑‑‑Validity‑‑‑Where the society was a registered body and filing of the ejectment application, and authority letter for filing the proceedings had not been challenged, application would be considered as filed by the person duly authorized by the society ‑‑‑Ejectment application was maintainable in circumstances.
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑
‑‑‑‑S. 13‑‑‑Civil Procedure Code (V of 1908), Preamble ‑‑‑Ejectment proceedings‑‑‑Provisions of C.P.C.‑‑‑Applicability‑‑‑Though the provisions of C.P.C. are not applicable strictly but the principles are very much applicable to proceedings under West Pakistan Urban Rent Restriction Ordinance, 1959.
(c) Pleadings‑
‑‑‑‑ Purpose of‑‑‑Purpose of pleadings is to let the opposite‑party know, what it has to meet‑‑‑Plaintiff on the basis of facts averred in the plaint has to establish the cause of action, or the defendant has to prove his defence‑‑Pleadings are neither the evidence nor deemed to be evidence, but facts alleged in the pleadings have to be proved by producing evidence‑‑Where a party omits to mention material facts in the plaint constituting cause of action, such party is not permitted to lead evidence regarding such facts unless amendment is allowed‑‑‑Party is neither allowed to lead evidence which is at variance with the pleadings, nor can be permitted to depart from the pleadings and prove a case not set up in the plaint‑‑‑Judgment cannot be based upon the pleas not raised in the pleadings nor can be based upon pleas raised but not proved.
Atlantic Steamer's Supply Company v. m.v. Titisee and others PLD 1993 SC 88 ref.
(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑‑
‑‑‑‑S. 13‑‑‑Civil Procedure Code (V of 1908), O.VI, R.7 ‑‑‑ Ejectment proceedings‑‑‑Principle of pleadings as stated in O.VI, R.7, C.P.C.‑‑Applicability‑‑‑Case set up in pleadings‑‑‑Onus to prove‑‑‑Landlord producing evidence contrary to the ground mentioned in his ejectment application‑‑‑Reasons for eviction was requirement of the tenement for personal need but evidence was led about requirement of the tenement for demolition and reconstruction‑‑‑Rent Controller allowed the application and directed the tenants to vacate the premises‑‑‑Validity‑‑‑Principle of pleadings as stated in O.VI, R.7, C.P.C. were applicable to the proceedings, though the same were quasi judicial in nature‑‑‑Tenant could only be evicted from tenement under the provisions of ‑S.13 of West Pakistan Urban Rent Restriction Ordinance, 1959, and any ground agitated beyond such provisions could not be considered‑‑‑Onus was always upon the landlord to prove that the tenant was liable to be evicted on the grounds as enumerated in the plaint within the scope of the provisions of S.13 of West Pakistan Urban Rent Restriction Ordinance, 1959‑‑‑Initial burden was always on the landlord to prove that the tenement was required by him for a particular purpose as set up in the plaint‑‑‑Where landlord had filed eviction application solely on the ground of personal requirement, he could not be permitted to prove/lead evidence, that he required the premises for demolishing and reconstruction‑‑‑Such departure of landlord would change the cause of action and the same would amount to proving a case not set up in the pleadings and such chance would militate against the bona fides of landlord‑‑‑Landlord by setting up a new plea in the application had failed to prove his personal bona fide requirement‑‑‑Rent Controller had misread the evidence produced by the landlord and erred in holding that the tenement was required for demolishing‑‑‑Judgment and decree of the Rent Controller was set aside in circumstances.
(e) Civil Procedure Code (V of 1908)‑‑‑‑
‑‑‑‑O. VI, R.7‑‑‑Pleadings‑‑‑Establishing a case other than one set up in the pleadings‑‑‑Effect‑‑‑Party could never be allowed to prove a case different than the one pleaded by him in his plaint as the same would prejudice the opposite side as the opponent was not required to produce evidence to rebut the plea not contained in the pleadings.
Aslam Chishti for Appellants (in F.A.O. Nos. 16 to 25 of 2000).
Tahir Hussain for Appellant (in F.A.0. No. 15 of 2000).
Altaf Hussain for Appellants (in F.A.O. No. 132 of 1999)
Mumtaz Hussain Baqri for Respondents (in all Appeals).
Dates of hearing: 13th and 21st June, 2000.
2000 M L D 2015
[Quetta]
Before Javed lqbal C.J. and Aman Ullah Khan Yasinzai, J
MUNAWAR KASHAN and another‑‑‑Petitioners
versus
GOVERNMENT OF BALOCHISTAN through Secretary, Revenue, Balochisten Civil Secretariat, Quetta and 2 others‑-‑Respondents
Civil Petition No. 155 of 1998, decided on 21st April, 2000.
(a) West Pakistan Board of Revenue Act (XI of 1957)‑‑‑
‑‑‑‑S.8‑‑‑Notification No, 180‑14/93/Rev., dated 6‑12‑1995‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Review of order passed by Board of Revenue‑‑‑Title of Morrosi Bazgar‑‑‑Disputed mutation was assailed by the Provincial Government on the ground that the mutation was attested in violation of the provisions of Notification No. 180‑14/93/Rev., dated 6‑12‑1995‑‑‑Member, Board of Revenue accepted the title of the petitioners in a revisional jurisdiction and they were declared as occupancy tenants‑‑‑Review application was filed by the Provincial Government against that order of the Member and the same was accepted by the Board of Revenue ‑‑‑Validity‑‑‑Transaction/titles made/confirmed prior to 28‑10‑1986 were not questioned and their validity was accepted vide Notification No.180‑14/93/Rev., dated 6‑12‑1995‑‑‑Disputed title having been passed after the date mentioned in the notification, the same was rightly cancelled by the Board of Revenue‑‑‑Where the predecessor of the petitioners did not have a better title, the mutation entry in favour of the petitioners was illegal as the initial transaction was not lawful‑‑‑High Court while taking serious notice of the grabbing of huge parcel of lands worth billions of rupees on the basis of hyper-technical suppositions and twisting the law held that illegal and unlawful title could not be converted into a lawful title while exercising Constitutional jurisdiction under Art. 199 of the Constitution.
(b) West Pakistan Board of Revenue Act (XI of 1957)‑‑‑
‑‑‑‑S.8‑‑‑Expression "for any other sufficient reason" in S. 8, West Pakistan Board of Revenue Act, 1957‑‑‑Connotation‑‑‑Review of order passed by Board of Revenue‑‑‑Scope‑‑‑Every cause would not allow to press the review provisions in service but where sufficient reasons were available such review could be made‑‑‑Expression "for any other sufficient reason" appearing in S.8, West Pakistan Board of Revenue Act, 1957, was capable enough to' empower Board of Revenue to rectify the error committed in a revision order.
1992 CLC 593; PLD 1979 Note 82 at p. 57 and 1989 MLD 2876 ref.
(c) Limitation‑‑‑
‑‑‑‑ Where the order of the authority was illegal and void, the question of limitation would not arise.
Tariq Mehmood for Appellant.
Asharaf Khan Tanoli, A.G. and Ayaz Zahoor for Respondents.
Date of hearing: 28th March, 2000.
2000 M L D 1150
[Supreme Court (A J & K)]
Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ
ABDUL SHAKOOR‑‑‑Appellant
versus
CHAIRMAN, MIRPUR DEVELOPMENT AUTHORITY, MIRPUR and 9 others‑‑‑Respondents
Civil Appeal No.78 of 1999, decided on 26th February, 2000.
(On appeal from the judgment of the High Court dated 20‑4‑1999 in Writ Petition No. 73 of 1997).
(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑
‑‑‑‑S.44‑‑‑Specific Relief Act (I of 1877), S.54‑‑‑Writ petition‑‑Competency‑‑‑Rejection of plaint in an earlier suit‑‑‑Effect‑‑‑Writ petition was dismissed by High Court holding that petitioner having already availed remedy by filing a civil suit, was debarred from filing writ petition‑‑Petitioner much earlier than allotment of plot in dispute in favour of respondents, had filed a suit for perpetual injunction in Civil Court on ground that he, being allottee in possession of said plot, should not be dispossessed from the same‑‑‑Plaint in the suit was rejected for nondisclosure of cause of action‑‑‑Plot in dispute was unauthorisedly allotted to respondents after about three years of rejection of the plaint when petitioner filed writ petition against the allotment‑‑‑Allotment of plot in favour of respondents raised a fresh cause of action for petitioner to file writ, petition‑‑Rejection of plaint under O.VII, R.11, C.P.C. would not debar afresh suit or filing of writ petition as controversy in issue was not finally adjudicated upon or resolved on merits‑‑‑Petitioner, in circumstances, was not precluded from filing writ petition, after rejection of plaint in earlier suit.
(b) Mirpur Development Authority Ordinance, 1974‑‑‑
‑‑‑‑Ss. 27 & 48‑‑‑Allotment of plot‑‑‑Plot in question which stood allotted to appellant, was allotted to respondents without affording appellant opportunity of being heard‑‑‑Allotment in favour of respondents was made by Chairman, Mirpur Development Authority, who alone had no jurisdictional competence to allot the same‑‑‑Appellant being an aggrieved person was entitled to be heard before making allotment of plot in favour of respondents‑ ‑‑Supreme Court set aside order of allotment passed in favour of respondents with direction to Mirpur Development Authority Allotment Committee, to hear appellant as well as respondents and decide question of allotment of plot in dispute afresh in accordance with law on the basis of entitlement.
Mst. Walayat Begum v. Revising Authority, M.D.A. and 3 others 1999 MLD 1549 ref.
M.Riaz Inqalabi, Advocate for Appellant.
Raja Imdad Ali Khan, Advocate for Respondents Nos.4 to 10.
Date of hearing: 20th January, 2000.
2000 M L D 1165
[Supreme Court (A J & K)]
Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J
BAQAT: KHAN and 50 others‑‑‑Appellants
versus
Mst. DIL JAN and 21 others‑‑‑Respondents
Civil Appeal No.90 of 1999, decided on 13th February, 2000.
(On appeal from the judgment and decree of the High Court dated 12‑5‑1999 in Civil Ai)peal No. 49 of 1995).
Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S. 8‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.135‑‑‑Suit for possession‑‑‑Private partition of land‑‑‑Title of co‑sharer‑‑‑Private partition of land would not invest a co‑sharer with the possession with exclusive title of land until and unless a regular partition took place between co‑owners through Revenue Authorities‑‑‑Interest of other co‑sharer, who was not in possession of a particular survey number, would not extinguish and he would remain a co‑sharer until a co‑sharer in exclusive possession of a specific part of joint land proved his adverse possession over the same.
Ch. Muhammad Ibrahim Zia, Advocate for Appellants.
Syed Nazir Hussain Shah Kazmi, Advocate for Respondents.
Date of hearing: 9th March, 2000.
2000 M L D 1305
[Supreme Court (A J & K)]
Present: Basharat Ahmad Shaikh
and Muhammad Yunus Surakhvi, JJ
RESIDENTS OF HAMIDPUR COLONY CHAKSWARI
through Legal Heirs‑‑‑Appellant
Versus
Mst. FAZEELAT BEGUM through Attorney
and 5 others‑‑‑Respondents
Civil Appeal No. 116 of 1999, decided on 31st March, 2000.
(On appeal from the judgment of the High Court dated 18‑5‑1999 in Writ Petition No. 72 of 1997).
(a) Azad Jammu and Kashmir Mirpur Development Authority Ordinance, 1974‑‑‑--
‑‑‑‑S. 11‑‑‑Establishment of Office of Mohtasib (Ombudsman) in Azad Jammu and Kashmir Act, 1993‑‑‑Azad Jammu and Kashmir Interim Constitution. Act (VIII of 1974), Ss. 42 & 44‑‑‑Allotment of land‑‑Cancellation‑‑‑Allotment of land in dispute made by Chairman, Mirpur Development Authority subsequently was cancelled by same Authority finding same to be illegal and without jurisdiction‑‑‑Residents of locality had proved that land allotted to ‑respondents according to master plan had been reserved for school and children park which could not legally be allotted to any person‑‑‑Price of disputed land had already been paid by residents of locality‑‑‑Land being not available for allotment was illegally allotted earlier by the Authority which act of Authority amounted to "maladministration"‑‑Allotment, was, thus, rightly ,cancelled by Competent Authority and High Court was not justified to vacate order of cancellation of allotment in circumstances.
Ajaib Hussain v. Muhammad Fazil 1980 CLC 198; Mst. Walayat Begum v. Revising Authority MDA and 3 others 1999 MLD 1549; Mansab Ali v. Amir and 3 others PLD 1971 SC 124 and. Syed Iftikhar Hussain v. Azad Government and others Civil Petition No. 81 of 1995 ref.
(b) Administration of justice‑‑‑--
‑‑‑‑ When basic order was illegal, structure based on said illegal order would also fall to ground.
Mian Muhammad Saeed, Advocate for Appellant.
Muhammad Yunus Arvi, Advocate for Respondents
Date of hearing: 22nd February, 2000
2000 M L D 1329
[Supreme Court (A J & K)]
Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ
FATEH DIN‑‑‑Appellant
Versus
MUHAMMAD BOOTA and 11 others‑‑‑Respondents
Civil Appeal No. 117 of 1999, decided on 31st March, 2000.
(On appeal from the judgment of the High Court dated 20‑5‑1999 in Civil Appeal No. 84 of 1998).
Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑
‑‑‑‑S. 42‑‑‑Appeal to Supreme Court ‑‑‑Limitation‑‑‑Delay‑‑‑Condonation of‑‑‑Appeal was belated by seven days‑‑‑Appellant had contended that he could not file appeal within time because he suddenly fell ill, and doctor had advised hilt "bed rest" for fifteen days‑‑‑Affidavit and medical certificate filed by appellant alongwith application for condonation of delay were silent on the point as to when appellant fell ill‑‑‑Medical Certificate did not even carry any date on which same was signed‑‑‑Medical Certificate as well‑ as affidavit filed by appellant lacking factors for implicit reliance, application for condonation of delay in filing appeal was rejected and appeal which was barred by time warms dismissed.
Qurban Ali and another v. The State PLD 1984 SC (AJ&K) 104 ref.
Muhammad Ayub Sabir, Advocate for Appellant.
Ch. Muhammad Bashir, Advocate for Respondents.
Date of hearing: 28th March, 2000.
2000 M L D 1419
[Supreme Court (A J & K)]
Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ
MUHAMMAD NIAZ KHAN‑‑‑Appellant
Versus
THE STATE‑‑‑Respondent
Criminal Appeal No. 1 of 1999, decided on 20th May, 1999.
(On appeal from the judgment of the Shariat Court dated 15‑12‑1998 in Criminal Appeal No. 1 of 1998).
(a) Azad Jammu and Kashmir Offences Against Property (Enforcement of Hudood) Act, 1985‑‑‑
‑‑‑‑S. 14‑‑‑Appreciation of evidence‑‑‑Daylight occurrence‑‑‑Complainant alongwith his bag containing his salary was traveling with the accused in the same vehicle‑‑‑Accused asked the driver to stop vehicle and when vehicle stopped he snatched bag of complainant and ran away, on hue and cry of complainant, a passerby caught hold of accused and bag was recovered from him‑‑‑Accused had pleaded that he had taken away bag of complainant through inadvertence or by a bona fide mistake as he was also holding his own bag in same vehicle‑‑‑Plea of accused was not plausible because if he had taken away currency bag of complainant through inadvertence or oversight, there seemed to be no point that soon after taking currency bag, he would run away from scene of occurrence and complainant and other people would chase him‑‑‑When accused was caught hold of by a person alongwith bag, on hue and cry of complainant, accused at that time did not explain to people that he had taken bag of complainant through inadvertence and that he had not stolen the same‑‑‑Conduct of accused had shown his guilty mind‑‑Prosecution on basis of evidence of eye‑witnesses who were passengers of the same vehicle had proved case against accused beyond any reasonable doubt‑‑‑Witnesses were natural and independent witnesses, having no animus or grudge against accused so as to implicate him in a fake case ‑‑‑Eyewitnesses were subjected to a lengthy cross‑examination, but nothing positive was achieved out of their evidence which could give any benefit to accused‑‑‑Accused, in circumstances, was rightly convicted and sentenced.
(b) Criminal trial‑‑‑
‑‑‑‑Witness‑‑‑Evidence of hostile witness‑‑‑Value‑‑‑Evidence of a hostile witness in criminal trial was to be discarded as a whole merely because that witness had turned hostile‑‑‑Portions of evidence of a hostile witness which rang true, could be used in support of prosecution case‑‑‑Real test was as to whether in some portions of evidence of hostile witness he spoke truth with regard to some events or not and if hostile witness highlighted some features of occurrence which rang true, those could be easily relied upon in support of the story of prosecution.
Muhammad Sadiq v. Muhammad Sarwar and 2 others 1979 SCMR 214; Muhammad Shafique v. The State PLD 1977 SC (AJ&K) 1 and State v. Muhammad Aziz Khan 1983 PCr.LJ 29 ref.
(c) Criminal trial---
---Duty was cast upon Court of law to ascertain truth and to dig out irregularities and unnecessary padding up of cases by prosecution.
Raja Muhammad Hanif Khan, Advocate for Appellant.
Raja Sheraz Kayani, A.G. for the State.
Date of hearing; 10th May, 1999.
2000 M L D 1600
[Supreme Court (A J & K)]
Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J
MUHAMMAD KABIR KHAN and 4 others‑‑‑Appellants
Versus
NASEER AHMAD KHAN and 3 others‑‑‑Respondents
Civil Appeal No. 195 of 1998, decided on 6th May, 1999.
(On appeal from the order of the High Court, dated 5‑11‑1998 in Writ Petition No.61 of 1993).
Azad Jammu and Kashmir Grant of Khalsa Land (Ground Rent and Lease) Rules, 1985‑
‑‑‑‑‑Rr.2(c) & 8‑‑‑Azad Jammu and Kashmir Regularization of Nautors and Grant of Khalsa Land Ordinance, 1974, S.2(v)‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44‑‑‑Writ‑‑‑Lease of "Charand Ghair Mumkin" for residential purposes‑‑‑Land in dispute which in Revenue Record was recorded as "Charand Ghair Mumkin" and did not fall within definition of "Khalsa Land" as defined in R.2(c) of Azad Jammu and Kashmir Grant of Khalsa Land (Ground Rent and Lease) Rules, 1985 was leased out for residential purposes under the said Rules‑‑‑Order of lease passed by Collector was set aside by Additional Commissioner (Revenue), being violative of relevant rules, but High Court set aside order of Additional Commissioner holding that land in dispute was not required for common purpose of village such as for grazing or other easement rights‑‑Revenue Record clearly showed that land in dispute was reserved or demarcated for grazing purposes of village community, but High Court while setting aside judgment of Additional Commissioner which was based on Revenue Record and report of Assistant Commissioner, had not taken into consideration said aspects‑‑‑For annulling a judgment or order of a Special Tribunal in exercise of writ jurisdiction there must exist sufficient grounds for coming to conclusion that view taken by Special Tribunal was patently against relevant law‑‑‑Judgment of High Court annulling the judgment of Additional Commissioner, was set aside by Supreme Court in appeal.
Raja Muhammad Ashraf Khan Kayani v. Azad Government 1998 PLC (C. S.) 110 ref.
Sardar Rafique Mahmood Khan, Advocate for Appellants.
Raja Muhammad Hanif Khan, Advocate for Respondent No. 1.
Date of hearing: 4th May, 1999.
2000 M L D 1606
[Supreme Court (A J & K)]
Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ
GHULAM ALI ASGHAR SHAH‑‑‑Appellant
Versus
AYUB SHAH and 9 others‑‑‑Respondents
Civil Appeal No. 188 of 1998, decided on 5th November, 1999.
(On appeal from the judgment of the High Court, dated 17‑8‑1999 in Civil Appeal No.50 of 1992).
Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S.42‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44‑‑‑Suit for declaration‑‑‑Inheritance of property‑‑‑Appellate Court below and High Court had concurrently found that father of appellants having died during lifetime of their grandfather, their deceased father did not inherit any share from the estate left by his father who was grandfather of the appellants‑‑‑Appellants had failed to prove that their grandfather had partitioned his land in his lifetime and that share in dispute fell to the lot of their deceased father‑‑‑Concurrent findings of fact based on fact and law of inheritance, could not be interfered with in appeal before Supreme Court.
Appellant in person.
Ashfaque Hussain Kiani Advocate for Respondents.
Date of hearing: 1st November, 1999.
2000 M L D 1611
[Supreme Court (A J & K)]
Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ
MUHAMMAD AFZAL KHAN‑‑‑Appellant
Versus
MUHAMMAD HAYAT KHAN and another‑‑‑Respondents.
Civil Appeal No. 182 of 1998, decided on 6th July, 1999.
(On appeal. from the judgment of the High Court, dated 1‑6‑1998 in Civil Revision No.46 of 1395).
(a) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.VII, Rr.1 & 11(b)(c)‑‑‑Plaint‑‑‑Court‑fee payable on plaint‑‑Determination of‑‑‑In order to determine proper court fee payable on plaint in a particular suit. correct principle was that plaint as a whole should be looked at and it was substance of plaint and not its ostensible form which really mattered for determination of court‑fee.
(b) Civil Procedure Code (V of 1908)‑‑‑‑
‑‑‑‑O.VII, Rr.l & 11(b)(c)‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Court Fees Act (VII of 1870), S.7(iv)(c) & Sched. II, Art. 17(iii)‑‑‑Suit for declaration‑‑‑Court‑fee payable‑‑‑Determination of‑‑‑Plaintiff in his suit had sought a declaration to the effect that he was owner in possession of suit land and also that gift deed and the sale‑deed in favour of respondents were illegal, ineffective and inoperative against his rights‑‑‑Said relief flew from declaration itself‑‑‑Suit filed by plaintiff fell under S.7(iv)(c) of Court Fees Act, 1870 read with Sched. II, Art. 17(iii) of said Act.
Muhammad Suleman and another v. Javed Iqbal and others PLD 1985 SC (AJ&K) 1; Mst. Nasim. Akhtar v. Muhammad Sabeel and another PLD 1991 Azad J&K 66 and Ghulam Hussain Shah v. Hidayat Ullah Khan PLD 1981 SC' (AJ&K) 55 ref.
(c) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S.42‑‑‑Court Fees Act (VII of 1870), S.7(iv)(c) & Sched. II, Art. 17(iii)‑‑ Suit for declaration‑‑‑Court‑fee payable‑‑‑Declaration sought for under S.42 of Specific Relief Act, 1877, must relate to title or to any legal character or to any right as to any property‑‑‑Said suit would fall under S.7(iv)(c) of Court Fees Act, 1870, read with Sched. II, Art.17(IIl) of said Act‑‑‑Where specific relief claimed in a declaratory suit was either surplusage or consequential relief same would flow from original relief of declaration claimed in plaint and suit would thus fall under Sched. II, Art.17(iii) of Court Fees Act, 1870, but if consequential relief was not outcome of original declaratory relief then suit would fall out of ambit of abovesaid provisions of law‑‑‑Plaintiff in his suit had asked for a declaration to the effect that he was owner in possession of suit land and had prayed for a further relief that gift deed and sale‑deed were illegal and ineffective on his right, said further relief would flow from declaration‑‑‑Said suit would fall under S.7(iv)(c) of Court Fees Act, 1870 read with Sched. II, Art. 17(111) of the said Act.
Miss Nasim Akhtar v. Muhammad Sabeel and another PLD 1991 Azad J & K 66 ref.
Ch. Muhammad Ibrahim Zia, Advocate for Appellant.
Syed Mushtaq Hussain. Gillani, Advocate for Respondents.
Date of hearing: 13th May, 1999.
2000 M L D 1618
[Supreme Court (A J & K)]
Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ
TANVEER HUSSAIN SHAH‑‑‑Appellant
Versus
MAQBOOL BEGUM and 23 others‑‑‑‑Respondents
Civil Appeal No.28 of 1999, decided on 22nd November, 1999.
(On appeal from the judgment of the High Court, dated 27‑11‑1998 in Civil Appeal No. 14 of 1994).
(a) Civil Procedure Code (V of 1908)‑‑‑‑
‑‑‑‑O.XLI, R.22 & S.100‑‑.‑Appeal before High Court‑‑‑Filing of crossobjections‑‑‑Limitation‑‑‑Respondents could file cross‑objections within one month from the date of appearance in the Court‑‑‑Cross‑objection filed after more than twenty days from prescribed period of one month were rightly not taken into consideration by Court being time‑barred.
(b) Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (B.K.)‑‑‑
‑‑‑‑S.6‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑‑Exercise of right of prior purchase‑‑‑Exemption‑‑‑‑Appellate jurisdiction of Supreme Court, exercise of‑‑‑Both Courts below and High Court had concurrently concluded that hind in dispute which fell within limits of Municipal Committee was exempted from exercise of right of prior purchase‑‑‑Said concurrent finding based on record, could not be interfered with by Supreme Court in appellate jurisdiction, especially when notification whereby said land was exempted from pre‑emption was not earlier challenged by the appellant.
Raja Muhammad Saddique Khan, Advocate for Appellant.
Respondents proceeded: Ex parte.
Date of hearing: 27th October, 1999.
2000 M L D 1633
[Supreme Court (A J & K)]
Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J
MUHAMMAD SHARIF ‑‑‑ Appellant
Versus
MUHAMMAD ILYAS and 23 others‑‑‑Respondents
Civil Appeal No. 121 of 1998, decided on 24th June, 1999.
(On appeal from the; judgment and decree of the High Court, dated 17‑6‑1998 in Civil Appeal No.85 of 1995).
Transfer of Property Act (IV of 1882)‑‑‑‑‑
‑‑‑‑S.52‑‑‑Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (B. K.), S.6‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 42 & 44‑‑‑Transfer of land (luring pendency of suit for preemption‑‑‑Right of transferee to be impleaded as necessary party in suit for appeal‑‑‑Appeal before Supreme Court‑‑‑Appellant/transferee got sale‑deed in respect of suit land from pre‑emptor during pendency of suit for preemption on basis of pre‑emption decree passed in favour of pre‑emptor which decree subsequently was cancelled by Appellate Court‑‑‑When appellant/transferee had purchased land during pendency of suits, he was not a necessary party in suits or appeals‑‑‑Such a transferee in view of S.52 of Transfer of Property Act, 1882, could not be regarded as a necessary party and decree passed against transferor/respondent could be executed without impleading transferee as a party to proceedings‑‑‑Whether appellant/transferee was a necessary party or not, was to be seen in the light of relief sought against him ‑‑‑Appellant/transferee having purchased land during pendency of suit, being not a necessary party in suits or appeals, no relief was sought against him ‑‑‑Appellant, in circumstances, had no right to challenge decree passed in favour of respondents on basis of right of adverse possession, especially when appellant himself had no locus standi‑ to file appeal.
Muhammad Yousaf v. Shaukat Ali Civil Appeal No.45 of 1995; Muhammad Sadiq v. Muhammad Afsar Civil Appeal No.76 of 1996; Chief Administrator, Auqaf v. Syed Khalil Hussain Shah Civil Appeal No.89 of 1996; Bhadu Ram v. Mohan Singh AIR 19,15 Lah. 200; Mt. Sant Kaur v. Teja Singh AIR 1946 Lah. 142 and Parmeshari Din v. Ram Charan AIR
Ch. Riaz Alam, Advocate for Appellant.
Raja Muhammad Siddique Khan, Advocate for Respondents
Date of hearing: 21st June, 1998.
2000 M L D 1640
[Supreme Court (A J & K)]
Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J
IFTIKHAR AHMAD KHILJI ‑‑‑ Appellant
Versus
AZAD GOVERNMENT and 7 others‑‑‑Respondents
Civil Appeal No.39 of 1999, decided on 30th June, 1999.
(On appeal from the judgment of the High Court, dated 12‑12‑1999 in Writ Petition No.76 of 1997).
(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑
‑‑‑‑‑Ss.42 & 44‑‑‑Writ petition and appeal before Supreme Court‑‑ Allegation that point argued in High Court was not resolved by Court‑‑ Proof‑‑‑Appellant had alleged that point argued before High Court, was not resolved by Court and that Court had made a mechanical approach to the case‑‑‑ Appellant was represented by counsel in High Court who argued case, no affidavit was filed on behalf of said counsel in High Court that points argued by him were not resolved by High Court‑‑‑In case a point which was argued at the time of argument in the High Court or for that matter in any Court, but same was not resolved, then concerned counsel had to give affidavit that point was argued by him but same was not resolved by Court‑‑Even otherwise High Court was not bound to decide points raised in writ petition if same were not pressed at the time of arguments‑‑‑Contention of appellant that all points raised in writ petition were not decided by High Court could not be permitted to be raised before Supreme Court without Affidavit by counsel for the appellant.
(b) Azad Jammu and Kashmir Public Service Commission Procedure Rules, 1994‑‑‑‑
‑‑‑‑‑Rr.10(1) & 11(1)‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44‑‑‑Meeting of Public Service Commission not presided over by its Chairman‑‑‑Effect‑‑‑Appeal before Supreme Court‑‑Respondents having been appointed on respective posts on recommendation of Public Service Commission, appellant iii his writ petition had alleged that said appointments were incompetent as on relevant date Chairman of Public Service Commission who was not present at time of interview had not presided over meeting of Public Service Commission‑‑‑Rules 10(1) & 11(1) of Azad Jammu and Kashmir Public Service Commission Procedure Rules, 1994 dealing with quorum and constitution of committee of members of Commission for performing functions of said Commission, had nowhere provided that presence or presiding over meeting by Chairman was necessary, but instead it had provided that functions of Commission could be performed even by a Committee constituted by Chairman‑‑‑Appellant who appeared for interview should have raised objection at time of interview that as Chairman was not present, he was not going to give any interview before members because they were not legally competent to get his interview, but appellant had not done so‑‑‑High Court in circumstances had rightly held that it was not necessary that Chairman should be present and should preside over meeting at time of interview‑ ‑‑Writ petition otherwise being time‑barred, was rightly dismissed by High Court.
Appellant in person.
Ch. Muhammad Mushtaq, Additional Advocate‑General for Respondents.
Date of hearing: 30th June; 1999.
2000 M L D 1668
[Supreme Court (A J & K)]
Present: Sardar Said Muhammad Khan, C.J and Basharat Ahmad Shaikh, J
MUHAMAMD YOUNAS and 7 others---Appellants
Versus
AUQAF DEPARTMENT and others---Respondents
Civil Appeals Nos. 132 and 133 of 1998, decided on 11th January, 1999.
(On appeal from the order of the High Court, dated 12-6-1998 in Civil Miscellaneous Nos.89 and 102 of 1997).
(a) Civil Procedure Code (V of 1908)----
----O.XLI, Rr.18 & 19---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44---Dismissal of appeal for non-deposit of process fee---Restoration---One of the respondents had died during pendency of appeals before High Court---Application for bringing his legal representatives was accepted by High Court with a direction to deposit process fee within specified period---Appellants having failed to comply with said order appeals were dismissed under O.XLI, R.18, C.P.C.---High Court, on filing applications for re-admission of appeals, despite holding that appellants had failed to show sufficient cause for non-compliance orders of Court with regard to deposit of process fee, re-admitted appeals observing that policy of law was that suits and appeals should be decided on merits rather than on technical grounds---Validity---Appeals could be re-admitted under O.XLI, R.19, C.P.C. for regular hearing only if sufficient cause had been shown for failure to comply with orders ,of Court---If a procedure was governed by statutory provision : or rules, an order could not be passed under inherent powers of Court disregarding the procedure laid down by law--High Court was not competent to resort to its inherent powers by observing that policy of law was to decide matter on merits rather than on technical grounds---Contention that appeals could not be dismissed for failure to deposit costs because date on which orders of dismissal of appeals were passed was not a date of hearing, was repelled because provisions of O.XLI, R.18, C.P.C. had provided that dismissal on a date which was not fixed for hearing, was permissible under law.
Chairman, AJK Council v. Abdul Latif 1997 MLD 2926; U Aung Gyi v. Government of Burma AIR 1940 Rang. 162; Abdul Haad v. Custodian of Evacuee Property Civil Appeal No.75 of 1995; Chand v. Abdul Ghaffar PLD 1965 Lah. 596; Hedayatullah v. Ghulam Sarwar 1993 CLC 1524; WAPDA v. Abaidur Rehman 1983 CLC 1066; Shahab Din v. Ahmed Yar 1986 CLC 2112; Nawab Bibi v. Mst. Mehraj Begum PLD 1975 Lah. 1167 and Sardar Nazir Ahmad Khan v. Muhammad Shaukat Khan Civil Appeal No.99 of 1998 ref.
(b) Civil Procedure Code (V of 1908)---
----O.XLI, Rr.18 & 19---Azad Jammu and Kashmir Waqf Properties Act, 1960, S.7---Dismissal of appeal for non-deposit of process fee ---Readmission---Share of one of the respondents, who died during pendency of appeal, being ascertainable, dismissal of appeal under O.XLI, R.18, C.P.C. as a whole was not legally justified if appeal remained properly constituted without presence of a party or for that matter share of said party was ascertainable---Share of deceased being 1/3rd under Muslim Law, it could not be said that as a result of non-impleading off his legal heirs due to failure to deposit process fee, appeals before High Court would be incompetent as a whole---Shares of Muslim heirs being specified under Muslim Law, appeals would not be rendered incompetent only because one of the co-sharers or his heirs could not be impleaded---Dismissal of appeals by High Court in toto was not legally justified.
Nawab Bibi v. Mst. Mehraj Begum PLD 1975 Lah. 1167; Sardar Nazir Ahmad Khan v. Muhammad Shaukat Khan Civil Appeal No.99 of 1998; Wali v. Manak Ali PLD 1965 SC 651; Fazal Dad v. Nek Alam PLD 1957 Lah. 430 and Allah Rakha v. Nawab PLD 1967 Lah. 613 ref.
Ch. Muhammad Ibrahim Zia and Farooq Hussain Kashmiri, Advocates for Appellants.
Ghulam Mustafa Mughal and Ch. Abdul Aziz, Advocates for Respondents.
Date of hearing: 21st December, 1998.
2000 M L D 1677
[Supreme Court (A J & K)]
Present: Sardar Said Muhammad Khan, CJ. and Muhammad Yunus Surakhvi, J
ALLAH DITTA and 5 others‑‑‑Appellants
Versus
MEHBOOB ALAM and 5 others‑‑‑Respondents
Civil Appeal NO. I l of 1998, decided on 25th June, 1998.
(On appeal from the order of the High Court, dated 18‑11‑1997 in Writ Petition No. 112 of 1995).
Transfer of Property Act (IV of 1882)‑‑‑
‑‑‑‑Ss.122 & 123‑‑‑Contract Act (IX of 1872), S.201‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44‑‑‑Allotment of land‑‑‑Cancellation of allotment‑‑‑Termination of agency after death of principal‑‑‑Gift made by attorney of allottee after death of allottee‑‑‑Validity‑‑Allotment of land in dispute earlier made in favour of allottee thereof was finally cancelled‑‑‑Attorney of deceased allottee, after about ten years from the death of allottee his principal transferred land in dispute by way of gift and transferee of land later on sold the land to another person‑‑‑After death of allottee of land : n dispute power of attorney executed by allottee in favour of attorney, having come to end, attorney had no locus standi to gift away the land on basis of power of attorney especially when allotment of land in favour of deceased allottee had been cancelled‑‑‑Transfer of land by way of gift being of no legal consequence, all subsequent transfers would not vest any legal title in transferees‑‑‑Writ was rightly issued by High Court in favour of respondent and against ,transferee in circumstances.
Liaquat Ali Khan, Advocate for Appellants.
Ch. Muhammad Riaz Alam, Advocate for Respondent No. 1.
Date of hearing: 24th June, 1998.
2000 M L D 1683
[Supreme Court (A J & K)]
Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J
MANZOOR HUSSAIN and 3 others‑‑‑‑Appellants
Versus
MUHAMAMD AKRAM and 15 others‑‑‑Respondents
Civil Appeal No.95 of 1998. decided on 25th June, 1999.
(On appeal from the judgment of the High Court dated 15‑6‑1998 in Writ Petition No. 138 of 1994).
Azad Jammu and Kashmir Rehabilitation Act, 1974‑‑‑
‑‑‑‑S.11‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44‑‑‑Allotment of land‑‑‑Power of review by Custodian‑‑Appellants, who could avail remedy of review before Custodian against order of transfer of proprietary rights in respect of land in dispute, without availing said remedy, filed writ petition before High Court‑‑‑Writ petition filed directly and without availing adequate remedy of review, was rightly dismissed by High Court being not maintainable.
Faqir Muhammad and others v. Custodian, Evacuee Property and others 1996 S C R 349 ref.
Ch. Muhammad Riaz Alam, Advocate for Appellant.
Abdul Majid Mallick, Advocate for Respondents.
Ch. Shah Wali, Advocate for the Custodian.
Date of hearing: 25th June, 1999.
2000 M L D 1693
[Supreme Court (A J & K)]
Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J
AKMIDC‑‑‑Appellant
Versus
AKBER ALI MALIK ‑‑‑Respondent
Civil Appeal No.32 of 1999, decided on 17th June, 1999.
(On appeal from the judgment of the High Court, dated 15‑12‑1998 in Civil Appeal No.32 of 1999).
Civil Procedure Code (V of 1908)‑‑‑‑
‑‑‑‑Ss.l9, 20 & 24‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44‑‑‑Suit for damages‑‑‑Transfer of suit‑‑‑Suit filed in Court of District Judge, MD was transferred to District Judge, MR on ground that cause of action arose at MR and that defendant was also residing within territorial jurisdiction of District MR‑‑‑Validity‑‑‑Provisions of S.19, C.P.C. had provided that in suit for compensation if wrong done to plaintiff or to his movable property, within jurisdiction of one Court and defendant resided or carried on business or personally worked for gain within local limits of jurisdiction of another Court, suit could be instituted at the option of plaintiff in either of said Courts‑‑‑Said option of plaintiff would not arise in the case if cause of action arose to plaintiff wholly or in part at MR and defendant was also residing at MR‑‑By transferring case from Court at MD to Court at MR, High Court had committed no illegality‑‑‑Appeal against order of High Court transferring suit, was dismissed in circumstances.
Muhammad Rafique Dar v. Ideal Insurance Co. PLD 1973 Azad J&K 21 and Waqar Ahmad Malik v. The Commandant Armed Forces Institute of Pathology, Rawalpindi Cantt and others PLD 1991 Pesh. 130 ref.
Ghulam Mustafa Mughal, Advocate for Appellant.
Ch. Muhammad Sharif Tariq, Advocate for Respondent. .
Date of hearing: 15th June, 1999. .
2000 M L D 1718
[Supreme Court (A J & K)]
Sardar Said Muhammad Khan, CJ
ALAM ZAIB‑‑‑Appellant
Versus
Haji MUHAMMAD RAMZAN and another‑‑‑Respondents
Criminal Appeal No. 28 of 1999, decided on 29th May, 2000.
(On appeal from the judgment of the Shariat Court, dated 29‑11‑1999 in Criminal Revision Petition No.37 of 1999).
(a) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail before arrest in a heinous crime, grant of‑‑‑Bail before arrest in a heinous crime like murder was an exception and same was to be allowed only if it was established to the satisfaction of the Court that implication of the accused person in case was motivated by ulterior motives to injure his reputation or deprive him of his liberty‑‑‑Where bail was sought after arrest, same was refused by Courts on sole ground of abscondence of accused on the ground that accused, had lost his right of bail to which he would have been otherwise entitled keeping in view allegations made against him and material in support of the allegations‑‑‑When bail before arrest was sought in case If a murder after abscondence of accused, that was not to be dealt with as if it was a case of abscondence wherein, accused was seeking bail after his arrest‑‑‑Absconder seeking pre‑arrest bail would lose right of bail.
(b) Criminal Procedure Code (V of 1898)‑‑‑‑
‑‑‑‑‑Ss. 498, 497 (5), 87 & 88‑‑‑Penal Code (XLV of 1860), Ss.302/324, 337‑F, 427/452/109/147/148/149‑‑‑Absconder‑‑‑Pre‑arrest bail, grant of‑‑Accused who remained at large for three months and eighteen days from registration of case against him, had only surrendered himself to Court three days prior to presentation of challan‑‑‑Such conduct of accused prima facie, had shown that he absconded to avoid his arrest‑‑‑Accused could not be presumed to be ignorant of registration of case against him during such long period‑‑‑Accused could not be considered to be ignorant of the case against him, even if it was assumed that he was busy with his business affairs especially when he was declared an absconder after taking appropriate proceedings under S.87, Cr.P.C.‑‑‑Absence of accused which proved to be deliberate one, would fall within ambit of "abcondence" which would disentitle him to seek pre‑arrest bail‑‑‑Pre‑arrest bail could not be granted to an absconder, irrespective of merits of case against him‑‑‑Bail granted to accused who had absconded was cancelled, in circumstances.
Khushi Muhammad v. Muhammad "Hanif 1980 SCMR 616; Khurshid Ahmad v. Muhammad Ilyas 1994 SCR 136; Murad Khan v. Fazal‑e‑Subhan PLD .1983 SC 82; Muhammad Sadiq v. Sadiq PLD 1985 SC 182; Arif Majeed v. State 1986 PCr.L12983; The State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322; Muhammad Yunus v. Malik Muhammad Nawaz 1997 SCR 125; Mir Murtaza Bhutto v. The State 1995 PCr.L1 1416; Meeran Bux v. The State PLD 1989 SC 347 and Basharat Khan v. Sher Muhammad Khan Criminal Appeal No.7 of 1992 ref.
Ch. Muhammad Azam Khan, Advocate for Appellant.
Ch. Muhammad Sharif Tariq, Advocate for Respondent No. 1.
Ch. Muhammad Mushtaq, Additional Advocate‑General for the State, Date of hearing: 25th May, 2000.
2000 M L D 1813
[Supreme Court (A J & K)]
Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ
Haji MUHAMMAD IDREES‑‑‑Appellant
versus
Ch. MEHMOOD AHMED and another‑‑‑Respondents
Civil Appeal No.58 of 1999, decided on 30th March, 2000.
(On appeal from the judgment of the High Court dated 3‑3‑1999 in Civil Appeal No. 29 of 1998).
(a) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑S. 9‑‑‑Spec‑ific Relief Act (I of 1877), S. 10‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 118‑‑‑Suit for recovery of amount‑‑‑Burden of proof‑‑‑Plaintiff by producing oral as well as documentary evidence on record ‑had proved that he advanced the suit amount to defendant through Bank draft for extension of his business‑‑‑Plaintiff having successfully discharged burden of proof it shifted upon defendant to rebut same‑‑‑Defendant had failed to produce any evidence, rather he did not appear in Court for rebuttal of plaintiff's evidence‑‑‑Initial burden of proof, no doubt, would always be on plaintiff, but if plaintiff discharged that onus and made out a case which entitled him to relief, onus would shift on defendant to prove circumstances, which could disentitle plaintiff to that relief‑‑‑Not always easy to determine as to what particular point would shift from plaintiff to defendant as evidence gradually continued to be adduced but at the conclusion of trial when issues would come to be judged, it had to be seen whether initial onus which Art. 118 of Qanun‑e‑Shahadat, 1984 cast upon plaintiff had been discharged or not.
(b) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S. 9‑‑‑Specific Relief Act (I of 1877), S. 10‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 42 & 44‑‑‑Suit for recovery of amount‑‑‑Suit was concurrently dismissed by Courts below and High Court on ground that partnership deed on basis of which suit amount was advanced by plaintiff to defendant, was not registered one‑‑Agreement/partnership deed entered into between the parties, in fact was not a partnership deed, but it, was an agreement wherein certain conditions were settled between the parties in pursuance of which plaintiff had advanced suit amount to defendant‑‑‑Not necessary to get said document registered as no immovable property of value of more than one hundred rupees was transferred by plaintiff in favour of defendant through the document‑‑‑Even if it had been essential to get the document registered, same would be admissible for collateral purpose of advancing money by plaintiff to defendant‑‑‑Such aspect of case having not been taken into consideration either by Courts below or High Court, concurrent judgment of Courts below and High Court was set aside and plaintiff having proved his case by producing unrebutted evidence, the suit was decreed by Supreme Court in appeal.
Bajranglal Maniran Singhvi Agarwal v. Anandilal Ramchandra Potadar and another AIR 1944 Nag. 124 ref.
Abdul Majid Mallick, Advocate, for Appellant Ch. Muhammad Siddique, Advocate for Respondent No.2.
Date of hearing: 22nd March, 2000.
2000 M L D 1911
[Azad J & K]
Before Chaudhary Muhammad Taj, J
MUHAMMAD RAUF‑‑‑Petitioner
versus
THE STATE‑‑‑Non‑Petitioner
Criminal Revision No. (Nil) of 2000, decided on 10th June, 2000.
(a) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.419/420/467/468/471‑‑‑Bail‑‑Accused had started proceedings for an amount of Rs.4,50,000 in the name of nine persons from the Zakat Fund with the forged sanction of the Prime Minister for issuance of cheques with a fabricated letter of an Army Officer‑‑‑Accused was specifically nominated in the F.I.R. registered on a written complaint of the Chief Administrator, Zakat and Ushr with the Inspector‑General of Police‑‑‑Prosecution had collected the incriminating material against the accused including the original applications with forged signature of the Prime Ministers' and bogus sanctions and recoveries effected at the instance of accused from have residential house‑‑‑Statements of prosecution witnesses under S.161, Cr.P.C. have also been recorded by the police‑‑‑Accused, thus, was prima facie connected with the commission of the offence‑‑‑Bail in non‑bailable offence not falling within the prohibitory clause of S.497(1), Cr.P.C. was not a universal rule and bail in such matters was to be granted or refused on their own facts and circumstances‑‑Investigation in the case was in progress and the challan was yet to be presented in the Court‑‑‑Accused was refused bail in circumstances.
Muhammad Aslam's case PLD 1967 SC 539; Khalid Saigol v. The State PLD 1962 SC 495; Ch. Abdul Malik's case PLD 1968 SC 349; Manzoor's case PLD 1972 SC 81; Khalid Javed Gilani's case PLD 1978 SC 256; Manzoor and 4 others v. The State PLD 1972 SC 81 and PLD 1978 SC (AJ&K) 83 ref.
(b) Criminal Procedure Code (V of 1898)‑‑‑‑
‑‑‑‑S.497‑‑‑Bail‑‑‑Factors to be considered for deciding bail matters were nature of accusation; prosecution evidence in its support, severity of punishment and its character and the defence plea if any.
Muhammad Yunus Arvi for Petitioner.
Ch. Muhammad Mushtaq, Addl. A.‑G. for the State.
2000 M L D 2047
[Supreme Court (A J & K)]
Before Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J
Kh. GHULAM QADIR and another‑‑‑Appellants
versus
MUHAMMAD SHARIF and 11 others‑‑‑Respondents
Civil Appeal No. 163 of 1999, decided on 8th May, 2000
(On appeal from the order of the High Court, dated 9‑10‑1999 in Civil Revisions Nos.23 and 59 of 1999).
(a) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.IX, Rr. 8 & 9‑‑‑Dismissal of suit for non‑appearance of plaintiff‑‑Restoration of‑‑‑Suit filed by plaintiff was dismissed in default and in application for‑ restoration of the suit, no cause whatsoever, muchless a sufficient cause, was mentioned by plaintiff as it was simply stated that counsel for plaintiff and his junior could not appear on relevant date‑‑Necessary for plaintiff to satisfy Court about sufficiency of cause for his absence on relevant date‑‑‑Provisions of O.IX, R.9, C.P.C. could not be dispensed with merely on ground that it was desirable that suit should be decided on merits or that it was in interest of justice to restore suit‑‑Question of sufficient cause was a question of fact which was to be decided taking into consideration circumstances and nature of case which prevented a party or his counsel from appearing in Court.
Muhammad Hashim Khan v. Major Fazal Ellahi Khan PLD 1959 Quetta 1; Muhammad Moslemul Haque v. Commissioner of Income‑tax, East Pakistan PLD 1963 Dacca 175; Messrs Gammon‑Layton, Karachi v.' Secretary of State for the United States of America PLD 1965 Kar, 425; Mahrof Hussain Khan v. Mst. Zahida Parveen PLD 1981 SC (AJ&K) 123; North‑West Frontier Province Government, Peshawar v. Abdul Ghafoor Khan PLD 1993 SC 418; Mst. Sughran Bibi v. Taja 1988 SCMR 1645; Zulfiqar Ali v. Lal Din 1974 SCMR 162 and Haji Muhammad Sharif v. Settlement and Rehabilitation Commissioner 1975 SCMR 86 ref.
(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑
‑‑‑‑S.42‑‑‑Appeal to Supreme Court ‑‑‑Non‑impleading of necessary party‑‑Competency of appeal‑‑‑If a necessary party was not impleaded in appeal, same was incompetent and would entail dismissal on that sole ground.
Mst. Maqbool Begum v. Ghullan PLD 1982 SC 46 ref.
(c) Civil Procedure Code (V of 1908)‑‑‑‑
‑‑‑‑O. IX, R.8 & O.X, R.1‑‑‑"Date of hearing" ‑‑‑Date fixed for recording statements of parties would be deemed to be a "date of hearing" ‑‑‑Date on which allegation made in pleadings were to be ascertained within meaning of O.X, R.1, C.P.C. would be a date of hearing.
Kh. Muhammad Akbar Butt v. Azad Jammu and Kashmir Government PLD 1966 Azad J&K 10 ref.
M. Tabassum Aftab Alvi, Advocate for Appellants.
Muhammad Ishaq, Attorney for Respondents, Nos. to 5 and 7 to 11.
Date of hearing: 4th May, 2000.