MLD 2001 Judgments - Pakistan Legal Archive

Courts in this Volume

Federal Shariat Court
Karachi High Court Sindh
Lahore High Court Lahore
Peshawar High Court
Shariat Court Azad Kashmir

Waseem Jadoon for the State.

Date of hearing: 14th March, 2001.

MLD 2001 FEDERAL SHARIAT COURT 1831 #

2001 M L D 1831

[Federal Shariat Court]

Before Sardar Muhammad Dogar, J

MUHAMMAD YOUSAF‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 228‑L of 2000, decided on 31st January, 2001.

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑S.10 (2) (3)‑‑‑Appreciation of evidence‑‑‑Doctor who medically examined the prosecutrix had stated that symptom had shown that the prosecutrix was a habitual case‑ ‑‑Statement made by Inspector (Range Crime) that he had recommended that victim girl should also be challaned with the accused, lent reasonable support to the argument advanced for the accused that the case against the accused was not a case of Zina‑bil‑Jabr but was a case of Zinabil‑Raza‑‑‑Statement made by Inspector (Range Crime) stood fully corroborated from the admission made by the victim girl herself during cross‑examination that once during investigation she had also been arrested as an accused and was lodged in jail‑‑‑Prosecution had failed to prove commission of offence against the accused under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, but commission of offence under S.10(2) of the Ordinance had taken place‑‑‑Conviction of the accused alongwith the sentence awarded to him under S.10(3) of the Ordinance were set aside and instead he was convicted and sentenced under S.10(2) of the Ordinance.

Safdar Hussain Tarar for Appellant.

Marina Parveen for the State.

Date of hearing: 31st January, 2001.

MLD 2001 FEDERAL SHARIAT COURT 1939 #

2001 M L D 1939

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan and Ch. Ejaz Yousaf, JJ

Mst. SHAZIA ASLAM and another‑‑‑Appellants

Versus

THE STATE ‑‑‑ Respondent

Criminal Appeal No. 160‑I of 1999, decided on 29th January, 200 .

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1.979)---

‑‑‑‑S. 8(a)‑‑‑Criminal Procedure Code (V of 1898), S.164‑‑‑"Court of competent jurisdiction" referred to in S.8(a) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, means the Trial Court constituted under the said Ordinance and not any other Court and though a confession made before the Trial Court would be .a sufficient proof of Zina or Zina‑bil‑Jabr liable to "Hadd" within the purview of S.8(a) of the Ordinance, yet it would not mean that any confessional statement recorded by a Magistrate under the provisions of Criminal Procedure Code was irrelevant for the purpose of "Ta'zir".

(b) Offence of Zina (Enforcement of Hudood) Ordinance‑ (VII of 1979)---

‑‑‑‑Ss. 8 & 10‑‑‑Proof of Zina or Zina‑bil‑Jabr liable to Hadd or Ta'zir‑‑Confession‑‑‑Although the confessions recorded by the Magistrate under 5.164, Cr.P.C. alone may note sufficient to establish the charge under S.8(a) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, yet such confessions can be taken into consideration in the cases covered by S. 10 of the said Ordinance.

The State v. Gulab Hussain alias Ghulam Hussain and. 3 others PLD 1994 FSC 17 ref.

‑‑‑‑S. 164‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts.37, 38, 39 & 41‑‑Confession‑‑‑Admissibility and relevancy of a confession‑‑‑Admissibility or relevancy of a confession, though basically a question of law, depends upon the facts of, each case‑‑‑Confession would be inadmissible if its making appears to the Court to have been caused by any inducement, threat or promise, or is made before the police officer, or at the time when the accused was in the custody of the Police Officer as provided by Arts.37, 38 & 39 of the Qanun‑e‑Shahadat, 1984, and evidently it cannot be irrelevant because the word "confession" itself denotes that it is the voluntary statement made by the person charged with the commission of the crime, it is, however, a different matter as to what is the evidentiary or intrinsic value of the confession.

(d) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 164‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.41‑‑‑Confession‑‑Evidentiary value‑‑‑Confession alone cannot form the basis of a conviction unless it finds strong corroboration from independent and reliable evidence in material particulars.

State v. Munir alias Gul Hassan PLD 1964 SC 813; Nadir Hussain v. The Crown 1969 SCMR 442; Habib Ullah v. The State 1971 SCMR 341; The State v. Waqar Ahmad 1992 SCMR 950; Abdul Latif v. The State PLJ 1999 SC 264 and 1999 SCJ 413 ref.

(e) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑S. 10(2)‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts.43, 2 & 3‑‑‑Appreciation o~ evidence‑‑‑Allegation of Zina‑‑‑Medical evidence relating to male accused was of no use because it simply indicated that he was capable of performing sexual intercourse and he being a married man himself had also not denied his potency‑‑‑Similarly opinion of the Lady Doctor concerning lady accused that she was used to sexual intercourse was of no help as she being a married woman lived with her deceased husband prior to the occurrence‑‑‑Deposition of a prosecution witness that he‑ had only seen both the accused going together in a car also did not advance the prosecution case‑‑‑Involvement of accused in the commission of Zina could not be conclusively inferred from any piece of evidence available on record‑‑‑Admission of lady accused in her confessional statement to have enjoyed illicit relations with her co‑accused could not corroborate the confessional statement of the male accused, because as per Art. 43 of the Qanun‑e‑Shahadat, 1984, though a confession made by one accused can be taken into consideration against another, yet it being not a substantive piece of evidence within the purview of ‑Arts.2 & 3 of the Qanun‑e‑Shahadat, 1984, could not take the place of or be substituted for evidence‑‑‑Even otherwise, confession of both the accused being inconsistent and discrepant were of no use for the purpose of corroboration‑‑‑Prosecution had failed to produce confirmatory evidence‑‑‑Accused were acquitted in circumstances.

The State v. Gulab Hussain alias Ghulam Hussain and 3 others PLD 1994 FSC 17; Criminal Appeal No. 48 of 1999; State v. Munir alias Gul Hassan PLD 1964 SC 813; Nadir Hussain v. The Crown 1969 SCMR 442; Habib Ullah v. The State 1971 SCMR 341; The State v. Waqar Ahmad 1992 SCMR 950; Abdul Latif v. The State PL1 1999 SC 264; 1999 SCJ 413; Maqbool Hussain v. The State PLD 1960 SC 382; Joygun Bibi v. The State PLD 1960 SC 313; Kashmira Singh v. The State of Madhya Pradesh AIR 1952 SC 159; Periyaswami Moopan and another v. Emperor AIR 1931 Mad. 177; Ram Parkash v. The State of Punjab AIR 1959 SC 1; Haricharan Kurmi and Jogia Hajam v. State of Bihar AIR 1964‑ SC 1184;' Asfandyar Wali v. The State PLD 1978 Pesh. 38, Ibrahim v. The State PLD 1963 Kar 739; Allah Bakhsh and another v. The State PLD 1982 FSC 101; Mst. Ghulam Safia v. The State PLD 1996 FSC 169 and Muhammad Ameen v. The State PLD 1990 SC 484 ref.

(f) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 164‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.41‑‑‑Confession‑‑Concession of co‑accused, utility of‑‑‑Confessional statement of co‑accused, retracted or otherwise, at the most may be used in support of other evidence and proper course, therefore, is to first carefully examine the entire evidence by excluding the confession and if on judicious and analytical examination of evidence the Court is of the opinion that conviction can be recorded on the basis of such evidence alone, then the confession may not be ‑considered, otherwise it may be called in aid to strengthen the belief that the accused was guilty of the offence.

Kashmira Singh v. The State of Madhya Pradesh AIR 1952 SC 159; Periyaswami Moopan and another v. Emperor AIR 1931 Mad. 177; Ram Parkash v. The State of Punjab AIR 1959 SC 1 and Haricharan Kurmi and another v. State of Bihar AIR 1964 SC 1184 ref.

(g) Criminal trial‑‑‑

‑‑‑‑Evidence‑‑‑Witness‑‑‑Corroboration must be by an independent witness and not by the testimony of an accomplice or confession of another coaccused.

State v. Munir alias Gul Hassan PLD 1964 SC 813; Asfandyar Wali v. State PLD 1978 Pesh. 38 and Ibrahim v. State PLD 1963 Kar. 739 ref.

(h) Criminal trial‑‑‑

‑‑--Evidence‑‑‑Witness‑‑‑Corroboration‑‑‑Where there are two sets of evidence each requiring corroboration, one cannot be used to corroborate the other.

(i) Criminal trial‑‑‑

‑‑‑‑Evidence, appreciation of‑‑‑Benefit of doubt‑‑‑Nobody is to be punished unless proved guilty on the basis of reliable, independent and true evidence and the benefit of reasonable doubt when occurring must go to the accused.

Sardar M. Ishaque Khan and Ghulam Mujtaba Jadoon for Appellants.

Fazal Haq Abbasr for the Complainant.

Qari Abdul Rashid for the State.

Date of hearing: 29th January, 2001.

Karachi High Court Sindh

MLD 2001 KARACHI HIGH COURT SINDH 1 #

2001 M L D 1

[Karachi]

Before Saiyed Saeed Ashhad, CJ

Messrs PAKISTAN INTERNATIONAL AIRLINES CORPORATION---Appellant

versus

Mst. ALIA, SIDDIQA and 3 others---Respondents

Civil Appeal No.83 of 1997 and Civil Miscellaneous Applications Nos. 1395 and 1528 of 1999, decided on 30th May, 2000.

(a) Muslim Law---.

----Inheritance---"Tarka (estate) of deceased ---Definition---Tarka (estate) of deceased consists of immovable or movable properties, money and all other articles which the deceased owned and over which he had 'complete control and dominion so as to enter into the transaction of sale, exchange, transfer, gift in respect of such immovable and movable properties, moneys and other goods/articles---Amount of group insurance could not form estate or Tarka of the deceased.

Mirza Muhammad Amin and others v. Government of Pakistan PLD 1982 FSC 143 and Federal Government of Pakistan v. People-at-Large PLD 1991 SC 731 ref.

(h) Insurance---

----Death claim insurance, payment to nominee---Non-payment of such claim to widow and children of deceased---Payment of such claim was- made by the employer to the nominee of the deceased who was mother of the deceased--Widow and the children of the deceased filed suit against the employer challenging release of such money to the mother without the consent of the widow---Trial Court decreed the suit in favour of the widow---Contention by the employer was that the payment was made in accordance with the Service Rules applicable to deceased employee and employer had committed no illegality---Validity---Employer had not acted negligently or imprudently and had made the payment in accordance with the Service Rules/Regulations as the deceased had nominated his mother to receive the amount---Trial Court had wrongly found the employer to be jointly and severally liable for payment of the shares to the widow and children of the deceased--Responsibility of such payment was solely on the mother of the deceased provided that the entire amount or some of the amount formed the estate/Tarka of the deceased---Judgment and decree of the Trial Court was set aside in circumstances--[Rukia and another v. Ghulam Shah and another PLD 1994 Pesh. 1 dissented from].

Rukia and another v. Ghulam Shah and another PLD 1994 Pesh. 1 dissented from.

Federal Government of Pakistan v. People-at-Large PLD 1991 SC 731 and Mirza Muhammad Amin and others v. Government of Pakistan PLD 1982 FSC 143 ref.

Amir Malik for Appellant.

Muhammad Amin Memon for Respondents Nos. l to 3.

S.M. Saeed for Respondent No.4.

Dates of hearing: 25th November, 1999 and 15th May, 2000.

MLD 2001 KARACHI HIGH COURT SINDH 12 #

2001MLD12

[Karachi]

Before Saiyed Saeed Ashhad, C. J. and Sarmad Jalal Osmani, J

WAZIR ALI,--Petitioner

versus

RENT CONTROLLER NO. VIII (EAST), CITY COURTS, KARACHI and 3 others---Respondents

First Rent Appeal No. 869; Constitutional Petition No.D-440 and Miscellaneous Application No. 1653 of 2000, decided on 10th May, 2000.

Sindh Rented Premises Ordinance (XVH of 1979)---

----Ss. 15 & 21---Constitution of Pakistan (1973), Art. 199---Constitutional petition ---Maintainability ---Ejectment proceedings- ---Converting Constitutional petition into appeal under S.21 of Sindh Rented Premises Ordinance, 1979---Relationship of landlord and tenant, denied---Tentative rent order was passed by the Rent Controller without making inquiry into such relationship between the parties---Validity---Where the Rent Controller neither considered the grounds and objections raised by the tenant nor satisfied himself about the existence of the relationship; the observations made by the Rent Controller were baseless and the tentative rent order was unlawful---Such order of the Rent Controller could be assailed in appeal under S. 21 of West Pakistan Rented Premises Ordinance, 1979----Constitutional petition was converted into appeal accordingly.

Pakistan Burma Shell v. Nasreen Irshad 1989 SCMR 1892 and Muhammad Yusuf and another v. Muhammad Sarfraz Cheema and others PLD 1987 SC 120 ref.

Muhammad Ayub and others v. Dr. Obaidullah and others 1999 SCMR 394 fol.

Kazi Wali Muhammad for Petitioner.

MLD 2001 KARACHI HIGH COURT SINDH 17 #

2001 M L D 17

[Karachi]

Before Anwar Zaheer Jamali, J

Capt. MUHAMMAD ANWAR KHAN---Appellant

versus

FEDERATION OF PAKISTAN, CIVIL AVIATION AUTHORITY---Respondent

Execution Application No. 114 of 1999 in Suit No.428 of 1995, decided on 28th August, 2000.

Civil Procedure Code (V of 1908)---

----S. 82 & O.XXI, R.11---Execution of decree---Providing three months' time to judgment-debtor---Time granted to judgment-debtor for satisfaction of the decree had expired and neither any efforts had been made towards satisfaction of decree, nor there was any offer from judgment-debtor justifying extension---Effect---Provisions of S.82, C.P.C. were not attracted to judgment-debtor which was a separate Corporate Authority---Where neither objection had been filed nor extension in time was sought to settle the matter,-execution application was granted.

Samiuddin Sami for Appellant.

Mustafa Lakhani for Respondent.

MLD 2001 KARACHI HIGH COURT SINDH 21 #

2001 M L D 21

[Karachi]

Before Muhammad Ashraf Leghari, J

TARIQ HUSSAIN HASHMI and others---Appellants

versus

Master ALI AMMAR and others---Respondents

First Rent Appeal No.522 of 1998, heard on 25th September, 2000.

(a) Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 15(2)---Ejectment application by co-owner ---Competency---Any co-owner of the property could file ejectment application against the tenant.

(b) Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 15 (2)(vii)---Bona fide personal need of landlord---Payment of Pagri-- Burden of proof ---Ejectment application filed by landlord was resisted by tenant contending that he had acquired the shop on payment of heavy amount of "Pagri" allegedly paid by him to the previous tenant and also to previous landlord of the premises for change of tenancy---Receipt of Pagri amount though was produced by tenant, but said receipt did not contain any amount of Pagri as it only indicated that specified amount was paid by tenant to previous tenant being price of articles lying in the shop---Tenant had not produced any other document in proof of payment of alleged Pagri amount-- Contention of tenant with regard to payment of Pagri amount could not be sustained as same was only intervening and mutual arrangement between parties which in no way would come in the way of landlord for instituting ejectment proceedings for his/her personal bona fide need in good faith.

Taj Muhammad v. Muhammad Naeem Khan and 2 others PLD 1983 Pesh. 118; Shaikh Muhammad Yousaf v. District Judge, Rawalpindi and 2 others 1987 SCMR 307 and M.K. Muhammad v. Muhammad Abu Bakar 1993 SCMR 200 ref.

----S. 15(2)(vii)---Personal bona fide need of landlord---Landlord had sought ejectment of tenant on ground that he wanted to expand his business and that portion in possession of landlord was insufficient for running his business and that he wanted to expand his business in adjoining premises---Expansion of business was right of landlord and was a valid ground for seeking ejectment which could not be denied if it was made in good faith and for bona fide need---Landlords having made out case of personal bona fide need of premises in dispute for expansion of their business, Rent Controller had rightly ordered ejectment of tenant.

(d) Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 15(2) (iii)(a)---Subletting of premises---Proof---Mere handing over possession of premises by a tenant to some other person without consent of landlord, was sufficient to hold that tenant had violated terms and conditions of tenancy agreement rendering himself liable for ejectment.

Muhammad Zaki Ahmed for Appellant No. 1.

Muhammad Saleem Mangrio for Appellants Nos.2 and 3.

S. Hamid Hussain for Respondents.

Date of hearing: 4th September, 2000.

MLD 2001 KARACHI HIGH COURT SINDH 27 #

2001 M L D 27

[Karachi]

Before Sabihuddin Ahmed, J

GUL MUHAMMAD through Legal Heirs---Appellant

versus

KAZIM IMAM JAN through Attorney and another---Respondents

First Rent Appeal No. 143 of 1998, decided on 3rd May, 2000.

(a) Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 15---Ejectment proceedings---Title of property---Allegation of fraud and forgery---Determination of---Competency of Rent Controller ---Scope--Rent Controller is not required to go into allegations of fraud and forgery pertaining to execution of documents establishing person's title to property--Such title can only be settled by Civil Court.

(b) Sindh Rented Premises Ordinance (XVII of 1979)...

----S. 19(2)---Ex parte order---Bar on rescinding of order passed by Rent Controller---Applicability---Where the respondent to the proceedings before Rent Controller despite having been duly served, failed to file his reply without reasonable excuse, bar on rescinding an order passed by Rent Controller was applicable.

----S.15---Review jurisdiction has not been conferred upon the Rent Controller.

(d) Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 21---Appeal against interim order---Maintainability---Right of appeal is provided under the provisions of Sindh Rented Premises Ordinance, 1979, against any order of Rent Controller which is not an interim order.

(e) Sindh Rented Premises Ordinance (XVIII of 1979)---

----S. 15---Civil Procedure Code (V of 1908), S.12(2) --- Ejectment proceedings---Commission of fraud during the proceedings---Possession, restoration of---Rent Controller could invoke the provision of S.12(2), C.P.C. in the interest of justice---Two proceedings were initiated qua the same premises, in one proceedings the appellant was shown as the tenant whereas in the other proceedings some other person was shown as tenant--Effect---Where there was fraud in the proceedings' and the appellant was ejected from the premises, order of the Rent Controller was set aside and the possession was restored.

Rehmatullah v. Ali Muhammad 1983 SCMR 1063; Ismail v. Sobedar Gul Inayat Shah PLD 1991 SC 997; Ahmedullah Haq v. Dr. Abdul Qadoos Khan PLD 1960 Dacca 452; Ahmed and another v. Additional District Judge PLD 1990 Lah. 425 and Laldin v. Muhammad Ibrahim 1993

Fazal Hussain v. Muhammad Hussain 1993 CLC 1076 and Muhammad Kashif Kamal Siddiqui v. Mirza Farooque Baig 1990 MLD 1009

Sajjad Ali Shah for Appellants.

Muhammad Sharif and G.M. Saleem for Respondents.

Dates of hearing: 13th May, 1999; 19th and 26th April, 2000.

MLD 2001 KARACHI HIGH COURT SINDH 39 #

2001 M L D 39

[Karachi]

Before Zahid Kurban Alavi, J

MARS INCORPORATED---Plaintiff

versus

PAKISTAN MINERAL WATER BOTTLING

PLANT (PVT.) LTD. through Chief, Executive/ Director/Secretary---Defendant

Suit No.37 and Civil Miscellaneous Application No. 114 of 2000, decided on 26th June, 2000.

(a) Trade mark----

---- Adoption of foreign trade mark---Dishonest adoption of foreign trade marks by Pakistani companies or traders deprecated.

(b) Trade mark---

---- Creation of confusion and deception---Adoptation of same trade mark phonetically is bound to create likelihood of confusion and deception to the consumers of goods.

Beecham Group v. Ahmed Ismail PLD 1987 Kar. 356 rel.

-------- Passing off'---Connotation---Scope---"Passing off' was an actionable wrong for a trader so to conduct his business as to lead to the belief that his goods or business were the goods or business of another---Such wrong was known as "passing off" --Immaterial whether the false representation as to the goods or business involved in passing off was made expressly by words or impliedly by use or imitation of a mark, trade name or get up, with which the goods of another were associated in the minds of public---In passing off action there was no requirement that the defendant should be carrying on business which competes with that of the plaintiff or which would compete with any natural extension of the plaintiff's business.

Tektronix Incorporated v. M. Abdul Mannan PLD 1973 Kar. 14 and Torts by Lindswell, 11th Edn., p. 17 ref.

(d) Trade Marks Act (V of 1940)----

---Preamble---"Passing off'---Essential characteristics enumerated:

The essential characteristics which must be present in order to create a valid cause of action for passing off are; misrepresentation made by a person in the Course of Trade to prospective customers of his or ultimate consumers of goods or services supplied by. him, which is calculated to injure the business or goodwill of another trade (in the sense that this is a reasonably seeable consequence) and which causes actual damage to a business -or goodwill of the trader-by whom the action is brought or a will probably do so.

Seven-up Company v. Kohinoor Thread Ball Factory PLD 1990 SC 313 ref.

(e) Trade Marks Act (V of 1940)---

----Ss. 8, 10 & 73---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Interim injunction, grant of---Passing off---Dishonest adoption of foreign trade mark---Disputed trade mark "Mars" was owned by the plaintiff which was an international company and the same was known all over the world--Defendant adopted the same trade mark for his products in the similar category and got the same registered in Pakistan---Validity---Plaintiff's trade mark enjoyed international reputation and if the injunction was not granted the same would encourage all other types of organizations to take advantage of the popularity of such internationally known marks---When a prima facie case was made out of convenience or inconvenience receded into background---Prima facie case in favour of the plaintiff existed---Interim injunction was granted.

Tabaq Restaurant's case 1987 SCMR 1090; Mian Taj Din and another v. Tahir Shabbir 1988 MLD 460; Vicks Chemical Co. v. 'Hopes Cosmetics and Chemical Works PLD 1957 Lah. 761; Kabushiki Kaisha Toshiba v. Ch. Muhammad Altaf PLD 1991 SC 27; Cooper's Incorporated v. Pakistan General Stores 1981 SCMR 1039; Alpha Sewing Machine Co. v. Registrar of Trade Marks PLD 1990 SC 1074; Montgomery Flour Mills' case PLD 1973 Kar.567; Seven-up Company v. Kohinoor Thread Ball Factory PLD 1990 SC 313; Beecham Group v. Ahmed Ismail PLD 1987 Kar. 356; PLD 1986 Jour. 353; Unilever Ltd v. Sultan Soap PLD 1991 SC 939; National Detergents, Ltd. v. Nirma Chemicals Works 1992 MLD 2357; A & F Pears Ltd. v. Ghulam Haider PLD 1959 (W. P.) Kar.154; Muhammad Ismail v. M/s. Soofi Soap Factory PLJ 1973 Lah. 208; Eiora Ind v. Banaras Days AIR 1980 Dehli 254; PLD 1968 Kar. 369; 1986 CLC 1636; PLD 1990 SC 313; PLD 1990 SC 1074; 1990 ALD 378; 1992 MLD 2307; AIR 1969 Born. 24; AIR 1986 Delhi 329; AIR 1994 Delhi 239; AIR 1985 All. 242; AIR 1944 Lah. 386; AIR 1983 Punj. 418; 1992 MLD 2307; 1973 RPC 560; 1983 FSR 155; 1992 RPC 529; 1997 RPC 155 and 15 RPC 105 ref.

Hassan Irfan alongwith Moen Qamar and Abdul Hameed Iqbal for Plaintiffs.

Khalil Kazilbash for Defendant.

MLD 2001 KARACHI HIGH COURT SINDH 59 #

2001MLD59

[Karachi]

Before Ghulam Nabi Soomro and S.A. Rabbani, JJ

Messrs HINA HOUSING PROJECT (P) LTD. ‑‑‑Petitioner

versus

GOVERNMENT OF SINDH through Secretary, Department

of Local Bodies, Housing and Town Planning, Sindh Secretariat, Karachi and 2 others‑‑‑Respondents

Constitutional Petition No. D‑3083 of 1993 and Miscellaneous Application No. 5713 of 1999, decided on 29th September, 2000.

(a) Practice and procedure‑‑‑

‑‑‑‑ Applicability of a law‑‑‑Following a pattern of procedure for convenience in conduct of proceeding is different from applicability of a legal provision, because in latter case (applicability of a legal provision) parties have to accept adverse consequences as a legal binding‑‑‑Applicability of law practically means its binding effect.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitution of Pakistan (1962), Art.98‑‑-Distinctive features of the respective Articles of the two Constitutions relating to writ Jurisdiction.

Article 98 of the Constitution of 1962 and Article 199 of the Constitution of 1973 are similar provisions on the same subject, but with two material significant distinctive features. First distinction is that the clause that "a High Court shall have such jurisdiction as is conferred on it by this Constitution or by law", forming part of Article 98 of the Constitution of 1962, has been omitted from Article 199 of the Constitution of 1973. The second change is replacement of remedy relating to terms and conditions of service by a remedy relating to Fundamental Rights in Article. 199 of Constitution of 1973. Omission of the provisions from Article 199 of the Constitution, 1973, that a High Court shall have such jurisdiction as is conferred on it by this Constitution or by Law' is material. This existed in Article 98 of the Constitution of 1962 and, therefore, the Civil Procedure Code, which is undisputedly a law, was applicable to the proceedings under that Article, as expressly provided.

Inclusion or exclusion of words or provisions in, or from, a piece of legislation or enactment is never inconsequential. The logical consequence of the omission of the provision, for applicability of law, from Article 199 of the Constitution of 1973, is that jurisdiction conferred by a law shall not be applicable to the proceedings under this Article, and such proceedings are to be dealt with under the jurisdiction given by the said Article itself.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner and another PLD 1966 SC 276; Ahmed Khan v.. The Chief Justice and Judges of the High Court, West Pakistan and others PLD 1968 SC 171; Sardar Noor Hussain‑v. Chief Settlement Commissioner and others PLD 1983 SC 62 and Messrs Dawood Yamaha Limited v. Government of Baluchistan and others PLD 1986 Quetta 148 ref.

‑‑‑‑ Scheme of legislation‑‑‑Only those clauses are placed in. one section or Article which have nexus with each other‑‑‑Provisions independent of each other are placed in different sections or Articles.

(d) Interpretation of statutes‑‑‑

‑‑‑‑ Inclusion or exclusion of words or provisions in, or from a piece of Legislation or enactment was never inconsequential.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Civil Procedure Code (V of 1908), Preamble‑‑‑Constitutional petition‑‑‑Applicability of Civil Procedure Code, 1908‑‑Constitution‑makers had no intention to provide for comprehensive procedure and remedy parallel to civil suit in Art.199 of the Constitution but through ,concept of applicability of Civil Procedure Code, Constitutional petitions under said Article, have practically been made civil suits‑‑‑Extent of applicability of Civil Procedure Code to Constitutional petition having not been defined precisely, everything that could be done with civil suits, is being done with Constitutional petitions‑‑‑Declaration about rights and entitlement are being sought, permanent injunctions are prayed for; petitions are amended like pleadings in suits; legal heirs are joined, in a petition filed by a person; co-petitioners are joined and even proceedings in said petitions are sometime compromised and disposed of like a compromise decree‑‑‑If all said provisions of Civil Procedure Code meant for civil suit, have an applicability to Constitutional petitions there can be no reason as to why provisions of Civil Procedure Code relating 'to framing of issues and recording of evidence should not be applicable to the petition.

(f) Constitution of Pakistan (1973)‑‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Dismissal of a Constitutional petition for non‑prosecution‑‑‑Nature and procedure‑‑‑Suits, appeals and trials being comprehensive proceedings, there was a concept of interlocutory application in all such proceedings‑‑‑Interlocutory application could be filed in a suit, it, could be filed in an appeal or trial, but filing application in an application was a queer concept‑‑‑Constitutional petition under Art. 199 of Constitution of Pakistan (1973) being an application as said Article had itself put it, it was to be proceeded with and decided as an application‑‑‑Article 199 of Constitution of Pakistan (1973), having not provided for applicability of law as was done in Art. 98 of Constitution of Pakistan (1.962), no bar of limitation existed and till an illegal order or action continued, a petition could be filed or repeated in case of dismissal of earlier, one for non-prosecution‑‑‑Dismissal of a Constitutional petition for non‑prosecution was a refusal to exercise that jurisdiction.

Abrar Hassan for Petitioner.

Suleman Habibullah, Addl. A.‑G., Sindh.

Muhammad Iqbal Kazi and Abdul Qadir Siddiqi: Amicus curiae.

MLD 2001 KARACHI HIGH COURT SINDH 69 #

2001 M L D 69

[Karachi]

Before Nazim Hussain Siddiqui, C.J and Ghulam Rabbani, J

ABDUL KARIM ‑‑‑Petitioner

versus

PROVINCE OF SINDH through Secretary, Communication

and Works and 3 others‑‑‑Respondents

Constitutional Petitions Nos.D‑1823 and 1824 of 1999, decided on 24th January, 2000.

(a) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑‑

‑‑‑‑Ss.80 & 81‑‑‑Government dues‑‑‑Recovery as arrears of land, revenue‑‑Scope‑‑-Amount due can only be recovered after its determination and ascertainment‑‑‑Disputed claim cannot be recovered as arrears of land revenue unless determined and established.

Messrs Pakistan Pipe and Construction Company Limited v. City Mukhtiarkar, Karachi East and others PLD 1984 Kar. 28; Muhammad Akbar Cheema v. Province of West Pakistan and another 1984 SCMR 1047; Agricultural Development Bank of Pakistan v. Sanaullah Khan and others PLD 1988 SC 67; Mumtaz ' Ahmed Silk Mills . Limited v. District Sindh Employees' Social Security Institution and another 1987 CLC 2531; Province of Punjab v. Muhammad Azam, 1989 SCMR 1419 and Messrs Health Construction Company (Pvt.) Ltd. v, Faisalabad Development Authority, Faisalabad 1995 CLC 1877 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Dispute qua contractual obligation‑‑‑Notice for recovery of Government dues was issued by the Authorities for non‑fulfilment of the contract awarded to the petitioner‑‑‑Petitioner assailed the notice on the ground that in fact it was the Government ‑ which had to pay the balance amount .to the petitioner‑‑Petitioner was blacklisted and did not approach the Court with clean hands ‑‑Validity‑‑‑Where material and substantial facts were in dispute, such fact would not be investigated in exercise of Constitutional jurisdiction under Art.199 of the Constitution‑‑‑Petition was dismissed in limine.

M.M. Aqil Awan for Petitioner.

Munir‑ur‑Rehman, A.A.‑G. for Respondents.

Date of hearing: 20th January, 2000.

MLD 2001 KARACHI HIGH COURT SINDH 78 #

2001 M. L D 78

[Karachi]

Before Mushtaq Ahmed Memon, J

UNITED BANK LIMITED---Petitioner

versus

Messrs CENTRAL COTTON MILLS LTD.. and 5 others---Respondents

Suit No.353, Civil Miscellaneous Applications Nos. 3300 and 3306 of 1994, decided on 17th November, 1997.

(a) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)---

----Ss.6&7'---Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997) Ss. 7 & 10---Banking Companies Ordinance (LVII of 1962), S.25---BCD Circulars Nos. 7 dated 28th March, 1984, 13 dated 20th June, 1984 and 32 dated 26th November, 1984---Suit for recovery of loans---Charging of interest ---Defendant/borrower had contended that transaction in question was based on "mark-up" and that plaintiff/Bank had erroneously charged interest on facility extended to defendants/borrowers which was illegal, arbitrary and unreasonable---Defendants had also claimed that State Bank of Pakistan, through its circulars, had eliminated 'Ribs' from Banking System whereby all Banking Companies including the plaintiff-Bank had been forbidden from extending finance, based on interest with effect from 1-1-1985---Validity---Proceedings against defendants/borrowers had been filed in respect of fixed loan which was secured by equitable mortgage of factory of the defendants---Terms for grant of-loan were duly mentioned in "sanction advice" containing specific reference to interest payable on fixed loan amount---Defendants had executed a demand promissory note, letter for credit of fixed loan amount in their accounts and authority to cancel facility at any time---Amount of fixed loan was actually disbursed and credited into account of defendants---Defendants having themselves relied on documents containing reference to interest, they could not avoid reading documents in entirety so -as to avoid approbate and reprobate with same time which was impermissible in law---Document produced on record, contained reference rather admission, about chargeability of interest on fixed loan amount and re-payment schedules submitted by defendants themselves contained entries showing computation of interest at prescribed rate---Grant of loan through sanction advice upon acceptance thereof, had become a valid and enforceable contract giving rise to certain rights in favour of both parties and said rights could not be taken away or' abridged through subsequent legislation muchless by a notification/circular---Contention that interest based facility could not be continued or renewed after issuance of circulars by State Bank, was repelled, in circumstances.

Messrs Hashwani Hotels Limited v. Federation of Pakistan PLD 1997 SC 315; Fine Textile Mills Ltd. v. Haji Umar PLD 1963 SC 163; Messrs Mechalec Engineers and Manufacturers v., Messrs Basic Equipment Corporation AIR 1977 SC 577; Habib Bank Ltd. v. Messrs Farooq Compost Fertilizer Corporation Ltd. and 4 others 1993- MLD 1571; Allied Bank of Pakistan v. Masood Ahmed Khan 1994 MLD 155'); Habib Bank Limited v. Mussarat Ali Khan PLD 1987 Kar. 86; Muhammad Yaqoob and others v. Naseer Hussain and others PLD 1995 Lah. 395; United Bank Limited v. Messrs Sartaj Industries PLD 1990 Lah.99; Habib Bank Limited v. Cargo Despatch Co. Limited and 4 others 1987 CLC 1002; Haji Shaikh Muhammad Hussain and others y. Citibank 1985 CLC 2467; Bank of Bahawalpur Limited v. Syed Muhammad Shies PLD 1967 Kar.433; Messrs Army Welfare Sugar Mills Ltd- v. Federation of Pakistan 1992 SCMR 1656. and Trinity Private School v. Mumtaz H. Hidayatullah 1997 SCMR 494 ref.

(b) Banking Companies (Recovery-of Loans) Ordinance (XIX of 1979)---

----Ss.6 & 7---Banking Companies Ordinance (LVII of £62), S. 25--Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997), S.10---Suit for recovery of loan---Leave to appear and defend suit---After promulgation of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 all proceedings filed under Banking Companies (Recovery of Loans) Ordinance, 1979 and other laws specified in S.7(6) of the said Act, were to proceed forth as matter instituted under the Act of 1997---General principles for grant of leave to defend suit would remain applicable to application for grant of leave to defend suit under the Act of 1997---Application for grant of leave to defend suit had to be considered liberally---In absence of any serious or bona fide dispute in the matter entitling defendants to grant leave to defend suit; application filed by defendant in that respect was dismissed.

Fine Textile Mills Ltd. Karachi v. Haji Umer PLD 1963 SC 163; Messrs Mechalec Engineers and Manufacturers v. Messrs Basic Equipment Corporation AIR 1977 SC 577: Behra Food Grain Corporation v. Muslim Commercial Bank 1987 CLC 1843; Habib Bank Limited v. Cargo Despatch Companty Limited 1987 CLC 1002 and Bank of Bahawalpur Limited v. Syed Muhammad Shies PLD 1967 Kar. 433 ref.

Mansoorul Arfeen for Plaintiff.

Muhammad Ali Sayeed alongwith Muhammad Saleem Thepdawala for Defendants Nos. 1 and 2.

Maqbool Baqar for Defendants Nos. 3 and 5.

MLD 2001 KARACHI HIGH COURT SINDH 92 #

2001 M L D 92

[Karachi]

Before Rana Bhagwan Das, J

SHAKIR ALI‑‑‑Plaintiff

versus

SHAHNAZ and 3 others‑‑‑Respondents

Suit No.474 and Civil Miscellaneous Applications Nos. 3601 of 1995 and 1341 of 1997 decided on 26th March, 1998.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXXIX, Rr. 1 & 2‑‑‑Constitution of Pakistan (1973), Art.23‑‑‑Interim injunction, grant of‑‑‑Restraining from raising construction‑‑‑Grievance of the plaintiff was that the defendant was raising construction against the approved plan and the same was infringing easement rights of the plaintiff‑‑Disputed construction had been completed before filing of the suit and even fees for regularization were deposited with the Authorities prior to filing of the suit‑‑‑Effect‑‑‑No useful purpose would be served in restraining the defendant from raising any further construction at the site as the same was not in progress‑‑‑Plaintiff had no prima facie case for the exercise of equitable and discretionary jurisdiction‑‑‑Interim injunction was declined in circumstances.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXXIX, Rr. 1 & 2‑‑‑Constitution of Pakistan (1973), Art. 23‑‑‑Interim injunction, grant of‑‑‑Restraining defendant from disposing of property‑‑Validity‑‑‑Plaintiff had no right and interest in the property owned, possessed and occupied by the defendant‑‑‑Every person was entitled to hold possess and acquire property in his own rights‑‑‑Where the plaintiff prima facie had no right and interest in the property of defendant, interim injunction was declined.

Ms. Navin S. Merchant for Plaintiff.

Ms. Kausar Amin for Defendant No. 1.

Mansoor Ahmed Khan for Defendant No.2.

Ikram Siddiqui for Defendant No. 3.

MLD 2001 KARACHI HIGH COURT SINDH 99 #

2001 M L D 99

[Karachi]

Before Rana Bhagwan Das and Shabbir Ahmed, JJ

THE FEDERATION OF PAKISTAN, CHAMBERS OF

COMMERCE AND INDUSTRY, KARACHI‑‑‑Appellant

versus

Messrs AL‑FAROOQ BUILDERS‑‑‑Respondent

High Court Appeal No.52 of 1991, decided on 26th May, 1999.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 30 & 39‑‑‑Award, setting aside of‑‑‑Scope‑‑‑Where there was no error of law or fact apparent on the face of award committed by arbitrator, High Court refused to interfere in such findings of the arbitrator.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 15‑‑‑Award‑‑‑Validity‑‑‑Duty of Court‑‑‑Mere absence of objection per se does not absolve the Court to its primary responsibility of deciding whether the award is valid on the face of it.

‑-‑‑Ss. 15 & 23‑‑‑Award making rule of Court‑‑‑Reference of dispute to arbitrator of the choice of the parties‑‑‑Effect‑‑‑Duty of the Court in such cases was to give every reasonable intendment in favour of the award and lean towards upholding the same rather than vitiating it.

Heihley, Maxsted & Co. and Durant & Co. (1893) 1 QB 405 and 'Abdul Rauf v. Muhammad Saeed Akhtar PLD 1958 (W.P.) Kar.145 ref.

(d) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S.13‑‑‑Arbitrator‑‑‑Arbitrator is a Judge of all matters arising out of a dispute whether of fact or of law and the Court is not to act as a Court of appeal sitting in judgment over the award‑‑‑Court has not to scrutinize the award with a view only to discover an error for the purpose of setting it aside.

(e) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Preamble & S. 30‑‑‑Qbject of Arbitration Act, 1940‑‑‑Setting aside of award‑‑‑Conditions‑‑‑Sole purpose of Arbitration Act, 1940, is to curtail litigation in Courts and promote settlement of disputes amicably through persons in whom both the parties repose their confidence‑‑‑Court has to endeavour to sustain the award rather than to destroy the same unless it can be shown by sufficient arid reliable material on record that the arbitrator is guilty of misconduct or that the award is beyond the scope of reference or that the same is violative of statute or in contradiction to the well‑settled norms and principles of law.

(f) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S.29‑‑‑Civil Procedure Code (V of 1908), S.34‑‑‑Arbitration‑‑‑Interest, awarding of‑‑‑Award of interest for the period prior to the suit‑‑‑Power of the Court under the provision of S.29 of Arbitration Act, 1940, or S.34, C.P.C. to award interest is a statutory power within the domain of procedural law‑‑‑Interest for the period prior to the suit could be granted in case of (i) agreement, express or implied between the parties; (ii) mercantile usage and (iii) under statutory provisions‑‑‑Interest could also be allowed on equitable grounds in proper cases.

Ghulam Abbas v. Trustees of the Port of Karachi PLD 1987 SC 393 ref.

(g) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 29‑‑‑Interest, awarding of‑‑‑Absence of any agreement between the parties as .to grant of interest on the amount due‑‑‑Arbitrator included in award interest at the rate of 6% per annum from the date of legal notice served by the plaintiff on the defendant‑‑‑Validity‑‑‑Arbitrator was in fact and law justified in equity in awarding interest on the amount due and outstanding against the defendant at the rate of 6 % per annum only from the date of award and not from the date of legal notice‑‑‑Arbitrator did not enjoy the powers of a Court, his authority could be operative only from the date of award till payment whereas the period subsequent to the passing of decree would be governed by S.29 of Arbitration Act, 1940, under which the Court was empowered to grant interest from the date of decree till payment‑‑Judgment and decree was modified and the interest was amended from the date‑of award till the date of decree.

Plaintiffs v. Sole Arbitrator etc. NLR 1992 CLJ 321; Dr. Mahmoodur Rehman v. Secretary, Ministry of Law, Justice and Parliamentary Affairs PLD 1992 FSC 153; Ghulam Abbas v. Trustees of the Port of Karachi PLD 1987 SC 393; Bengal Nagpur Railways Co. v. Ruttanji Ramji and others AIR 1938 PC 67; Messrs A.Z. Company v. Maula Bukhsh Muhammad Bashir PLD 1965 SC 505; Russell on Arbitration, 19th Edn., p.440; Hassan Brothers & Company v. Maqbool Cotton, Ginning and Pressing Factory PLD 1986 Kar. 21; Mehboob Alam v. Mumtaz Ahmed PLD 1960 (W.P.) Lah. 601; Pash Behari v. Anand Sarup Bhargawa AIR 1962 Punj. 51; Muhammad Saleem Butt v. Trading Corporation of Pakistan 1986 CLC 254; F.J. Rambarts (Pakistan) Limited v. Pakistan Steel Mills Corporation 1987 CLC 2198; A.Z. & Company v. S. Moula Bux Bashir Ahmed PLD 1965 SC 505; Secretary, Irrigation Department, Government of Orissa v. G.C. Roy AIR 1992 SC 732 and State of Orissa v. B.N. Agrawalla AIR 1997 SC 925 ref.

B.M. Bangish for Appellant.

Samiuddin Sarni for Respondent.

Date of hearing: 19th May, 1999.

MLD 2001 KARACHI HIGH COURT SINDH 115 #

2001 M L D 115

[Karachi]

Before Zahid Kurban Alavi, J

A. QUTABUDDIN KHAN‑‑‑Plaintiff

versus

CHEC MILLWALA DREDGING CO. (PVT.) LTD. KARACHI‑‑‑Defendant

Suit No. 1461 of 1998, decided on 5th September, 2000.

Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 14(2) & 17‑‑‑Limitation Act (X of 1908), Art.152‑‑‑Award‑‑‑Filing objections to award‑‑‑Limitation‑‑‑Defendants filed their objections against the award beyond the prescribed period of 30 days‑‑‑Validity‑‑‑Objections filed to the award were time‑barred‑‑‑Award was made rule of the Court in circumstances.

Superintending Engineer, Communication and Works Highway Circle, Kohat v. Mian Faiz Muhammad & Co. Akora Khattak PLD 1996 SC 797 fol.

Samiuddin Sami for Plaintiff.

Muhammad Masood Khan for Defendant.

MLD 2001 KARACHI HIGH COURT SINDH 120 #

2001 M L D 120

[Karachi]

Before Muhammad Ashraf Leghari, J

ABDUL SAMI SOOMRO‑‑‑‑Petitioner

versus

ANWAR KAMAL PATNAWALA and others‑‑‑‑Respondents

First Rent Appeal No.348 and Civil Miscellaneous Applications Nos. 554 and 555 of 2000, decided on 25th September, 2000.

(a) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S.15(2)‑‑‑Ejectment application filed by co‑owners‑‑‑Competency‑‑‑Co-owners were competent to file application for ejectment of tenant.

Rajab Ali v. Daius B. Kundawala and another PLD 1984 Kar. 14 ref.

(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑Ss.16(1)(2) & 18‑‑‑Striking off defence of tenant‑‑‑Original owner sold property in question and vendee served notice of 'change of ownership of property upon tenant under S.18 of Sindh Rented Premises Ordinance, 1979‑‑‑Tenant despite receipt of said notice, continued depositing rent in the Court‑‑‑On filing ejectment application against tenant on ground of personal bona fide need of landlord, Rent Controller passed tentative rent order directing tenant to deposit arrears of rent and future monthly rent to landlord, but tenant despite knowing change of ownership of premises deliberately did not comply with tentative rent order and violated said order of Rent Controller‑‑‑Rent Controller, in circumstances, was justified in striking off defence of tenant for wilful and deliberate default in payment of rent to lawful owners of property in question‑‑‑Order passed by Rent Controller could not be interfered with.

Habib Bank Limited v. Noor. Ahmed 1990 CLC 1170; Ismail v. Mst. .Sara Bai and others 1987 CLC 1393; Nasir Kamal Pasha v. Muhammad Ismail Khan PLD 1983 Kar. 192,; Ali Muhammad v. Khalil Ahmed Allahwala and 2 others 1985 CLC 1297; Anwar Ahmed v. Muhammad Sharif 1991 MLD 701; Hussain Trading Company, Karachi v. Messrs Jalal Brothers (Private) Limited, Karachi 1994 SCMR. 159; Messrs Paramount Linen through Partner v. Mst. Shagufta Muzaffar 1997 CLC 221; Muhammad Gulzar v. Jamia Masjid Al‑Rehmania Trust 2000 MLD 133; Ghulam Hussain v. Mst. Roshan Bibi 1986 SCMR 1714; Mst. Zulekha Bai v. Muhammad Yaqoob 1989 CLC 479 and Mahmood Bashir v. Mst. Mubina Begum 1988 SCMR 427 ref.

Mirza Saeed Baig for Appellant.

Arshad Mubeen Ahmed for Respondent.

MLD 2001 KARACHI HIGH COURT SINDH 153 #

2001 M L D 153

[Karachi]

Before S.A. Sarwana, J

ABDUL HAMEED‑‑‑Decree‑Holder

versus

Messrs PANHWAR CONSTRUCTION CO. and others‑‑‑Judgment‑Debtors

Execution Application No.56 of 1999, decided on 15th September, 2000.

(a) Pakistan Legal Practitioners and Bar Councils Rules, 1976‑‑‑

‑‑‑‑Rr. 159 & 161‑‑‑Canons of professional conduct and etiquette of Advocates‑‑‑Duty of counsel‑‑‑Counsel is concerned in the proper administration of justice and owes an overriding duty to the Court, to the standards of his profession, and to the public to ensure that same is achieved‑‑‑Counsel must not mislead the Court.

Halsbury's Laws of England, 4th Edn., Vol. 3 (1), para. 415 ref.

(b) Pakistan Legal Practitioners and Bar Councils Rules, 1976‑‑‑

‑‑‑‑Rr. 159 & 161‑‑‑Canons of professional conduct and etiquette of Advocates‑‑‑ Conduct of counsel‑‑‑Duty towards Court and client ‑‑‑Scope‑‑Raising of point of law already rejected by Supreme Court‑‑‑Whether violative of professional ethics and propriety‑‑‑Where, the counsel attempted to argue a point which had already been rejected by the Supreme Court the same amounted to concealment of fact and law‑‑‑By such conduct duty of the counsel to the Court was subordinated to his duty to his client which, as an Advocate and an officer of the Court, the counsel should have abstained from doing‑‑‑Such conduct of counsel was not approved by the High Court.

Holy Qur'an: Surah Al‑Nisa IV, Ayat 105 ref.

‑‑‑‑O.XVII, R. 1 & O.XXI, Rr.34 & 35‑‑‑Adjournment‑‑‑Preparation of counsel on a legal point‑‑‑Such legal point already rejected by Supreme Court‑‑‑Propriety‑‑‑Execution application was prii4mg when the counsel of the judgment‑debtor sought adjournment for the reason that he wanted to argue the legal point already rejected by Supreme Court‑‑‑Validity‑‑‑After the judgment of Supreme Court attempt to argue such point was a mala fide act and the same was rejected‑‑‑Adjournment was not allowed and execution application was allowed in circumstances.

Holy Qur'an: Surah Hud, Ayat 85 and Tafseer of Holy Qur'an by Moulana Shabbir Ahmed Usmani ref.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 35‑A‑‑‑Compensatory costs‑‑‑Vexatious defence, raising of‑‑‑Causing of unnecessary delay‑‑‑Where judgment‑debtor raised vexatious defence and caused unnecessary delay to the execution of decree finally adjudged and confirmed by Supreme Court, compensatory costs were imposed on the judgment‑debtor.

Moin Azhar Siddiqui for the Decree‑holder.

Shahid Qadeer for Usman Ghani Rashid for the Judgment‑Debtor No.5.

Date of hearing: 15th September, 2000.

MLD 2001 KARACHI HIGH COURT SINDH 215 #

2001MLD215

[Karachi]

Before Muhammad Ashraf Leghari, J

SHAFQATULLAH KAZI‑‑‑Applicant

versus

KARIM BUX and others‑‑‑Respondents

Miscellaneous Application No.183 of 1999, decided on 18th September, 2000.

Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss. 324/336‑‑‑Bail cancellation of‑‑‑Accused had been named in the F.1 R. with a specific role of having caused a hatchet blow with its sharp side on the vital part of the body of the complainant whereby his left ear was chopped‑‑‑Case against accused fell within the prohibitory clause of S. 497(x.), Cr.P.C.‑‑‑Accused was not entitled to bait merely because police had placed him in column No.2 of the challan‑‑‑Ample evidence was available on record to prima facie believe the accused being guilty of the offence charged with‑‑‑Bail allowed to accused was cancelled in circumstances.

Haji Inayatul Haq v. Saeed Muhammad Khan and another 1988 SCMR 1743; Muhammad Jameel v Shafqat Bari and 4 others 1996 SCMR 1562; Mazhar Mehmood v. Basit and another 1997 SCMR 915; Abdul Sattar and another v. The State 1987 SCMR 1424 and Mst. Resham Jan v. Abdur Rehman 1991 SCMR 1849 ref.

Habibullah Shaikh for Applicant.

Saifuddin Shah for the Accused.

Sher Muhammad Shar, A.A.‑G., for the State.

MLD 2001 KARACHI HIGH COURT SINDH 229 #

2001 M L D 244

[Karachi]

Before Muhammad Roshan Essani, J

ALI HYDER and 2 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 518 of 2000, decided on 29th September 2000.

Coal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss.307/324/34‑‑‑Pre‑arrest bail‑‑Inordinate delay in lodging the F.I.R. had no plausible explanation‑‑Accused had allegedly fired direct on the complainant but neither the complainant nor the witnesses had received any injury‑‑‑Crime empties were not found on the place of occurrence and even no footprints were noticed there‑‑‑Eye‑witnesses mentioned in the F.I.R. had not implicated the accused either in their statements recorded by the Investigating Officer under S. 161, Cr.P.C. or subsequently recorded by the Magistrate under S. 164, Cr.P.C.‑‑One eye‑witness in his second statement recorded under S. 164, Cr.P.C. had backed out from his previous statements and implicated the accused in the case‑‑‑Case against the accused, thus, appeared to have been launched mala fide and dishonestly‑‑‑Pre‑arrest bail was granted to accused accordingly.

Nasir Javed v. Kazim Ali and others 1999 PCr.LJ 2000 and. Muhammad Sajjad v. The State 1999 PCr.LJ 872 ref.

Ahmeduddin Shar for Applicant.

Zawar Hussain Jafferi, Addl. A.‑G. for the State.

Ghulam Shabir Shar for the Complainant.

MLD 2001 KARACHI HIGH COURT SINDH 244 #

2001 M L D 244

[Karachi]

Before Muhammad Roshan Essani, J

ALI HYDER and 2 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 518 of 2000, decided on 29th September 2000.

Coal Procedure Code (V of 1898)‑‑‑‑

Nasir Javed v. Kazim Ali and others 1999 PCr.LJ 2000 and. Muhammad Sajjad v. The State 1999 PCr.LJ 872 ref.

Ahmeduddin Shar for Applicant.

Zawar Hussain Jafferi, Addl. A.‑G. for the State.

Ghulam Shabir Shar for the Complainant.

MLD 2001 KARACHI HIGH COURT SINDH 255 #

2001 M L D 255

[Karachi]

Before Muhammad Roshan Essani, J

THE STATE through Additional A.‑G.‑‑‑Petitioner

versus

RIAZ AHMED and 3 others‑‑‑Respondents

Criminal Miscellaneous Application No.293 of 1998, decided on 6th October, 2000.

(a) Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss. 364/34‑‑‑Cancellation of bail‑‑‑Delay in lodging the F.I.R. had been properly explained‑‑‑Parties were previously known to each other and the names of the accused with the motive for commission of the offence had been mentioned in the F.I.R.‑‑‑Abductee had not been recovered so far and Sessions Court while granting pre‑arrest bail to accused had not given proper attention to this aspect of the case‑‑Sessions Court had deeply evaluated the evidence which was not warranted by law at bail stage‑‑‑Accused by taking undue advantage of pre‑arrest bail had not joined police investigation, rather were creating hurdles in the same‑‑‑Threats of dire consequences were also being issued to the complainant party by the accused and they had not even challenged the averments made in the bail application against them by way of any counter‑affidavit‑‑‑Impugned order was not only hasty but was quite unreasonable and unjustified‑‑‑Pre‑arrest bail granted to accused was cancelled in circumstances.

Maqbool Ahmed v. Muhammad Akram and another 1985 SCMR 1528 ref.

(b) Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S. 156‑‑‑Fresh investigation‑‑‑Investigation in cognizable offence never stops even after a submission of the 'report under S. 173, Cr.P.C. before the Court and fresh investigation in the case is not barred‑‑‑Second report never changes the position even if the Court has already taken the cognizance of the offence and started recording evidence‑‑‑Permission of the Court in such context is not necessary.

‑‑‑‑S. 498‑‑‑Pre‑arrest bail‑‑‑Requisites‑‑‑Conditions precedent for grant of pre‑arrest bail are; the presence of ulterior motive particularly on the part of the police to cause unjustified harassment and arrest of accused tainted with mala fides for the purpose of humiliation and malicious prosecution.

Zawar Hussain Jafferi, Addl. A.‑G. for the State.

Maqbool Ahmed Awan for the Complainant.

Saifuddin Shah for Respondents.

MLD 2001 KARACHI HIGH COURT SINDH 262 #

2001 M L D 262

[Karachi]

Before Muhammad Roshan Essani, J

MIRO alias MIR MUHAMMAD ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.231 of 2000, decided on 6th October, 2000.

(a) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/449/34‑‑‑Bail‑‑‑Delay in lodging the F.I.R. had been properly explained‑‑‑Accused had been named in the F.I.R. with a specific role of having caused fire‑arm injuries to the deceased who had received seven fire‑arm injuries on his person which fact was borne out from the post‑mortem report‑‑‑Source of light and the motive for the occurrence had been disclosed in the F.I.R.‑‑‑Eye‑witnesses had implicated the accused in their statements‑‑‑Accused no doubt was suffering from pulmonary tuberculosis, but according to the report of Chest Specialist he was being treated for the same and need not to be kept even isolated and his continuous detention in jail could not further aggravate his ailment‑‑Deeper appreciation of evidence was not permissible at bail stage and only tentative assessment of the same was warranted by‑law‑‑‑Bail was declined to accused in circumstances.

Malik Muhammad Yousafullah Khan v. The State and another PLD 1995 SC 58; Sultan Ahmad and others v. The State 1981 SCMR 771 and Ghulam Muhammad v. The State PLJ 1983 SC 334 ref.

(b) Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 302/449/34‑‑‑Bail‑‑‑Evaluation of evidence by Court‑‑‑Deeper appreciation of evidence was not permissible at bail stage and only tentative assessment of the same was warranted by law.

Habibullah Shaikh for Applicant.

Sher Muhammad Shar, Asstt. A.‑G. for the State.

Mian Abdul Salam Arain for the Complainant.

MLD 2001 KARACHI HIGH COURT SINDH 273 #

2001 M L D 273

[Karachi]

Before Muhammad Roshan Essani, J

MUHAMMAD PUNHAL‑‑‑Appellant

versus

SHAH NAWAZ and 5 others‑‑‑Respondents

Criminal Acquittal Appeal No.23 of 2000, decided on 28th September, 2000.

(a) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 417 (2‑A)‑‑‑Appeal against acquittal‑‑‑Trial Court after evaluating the evidence in consonance with the principles laid down by the Supreme Court and taking into consideration every aspect of the case had acquitted the accused‑‑‑No illegality was pointed out in the impugned judgment‑‑Strong presumption of innocence had arisen ~ in favour of accused after their acquittal by Trial Court which could not be rebutted‑‑‑Appeal against acquittal of accused was dismissed in limine in circumstances.

(b) Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S. 417‑‑‑Appeal against acquittal‑‑‑Principles‑‑‑Considerations in appeal against acquittal are quite different from those in appeal against conviction‑‑Strong preemption of innocence of accused arises after his acquittal by Trial Court.

Shamsuddin Kobhar for Appellant.

MLD 2001 KARACHI HIGH COURT SINDH 326 #

2001 M L D 326

[Karachi]

Before Sabihuddin Ahmed and Abdul Ghani Shaikh, JJ

UNITED BANK LIMITED‑‑‑Appellant

versus

Messrs KHURSHID TWISTING and others‑‑‑Respondents

Appeal No. 15 of 1998, decided on 20th January, 2000.

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 21‑‑‑Appeal‑‑‑Suppression of facts‑‑‑Effect‑‑‑Central Excise Duty, payment of‑‑‑Liability of borrower‑‑‑Interest pendente lite, grant of‑‑‑Suit was decreed by Banking Court in favour of the Bank‑‑‑Bank failed to disclose repayment of certain amount either during the proceedings before the Banking Court or in memorandum of appeal‑‑‑Banking Court while awarding decree, excluded the amount of Central Excise Duty ‑‑‑Validity‑‑Factum of repayment of the amount prior to filing of the suit was suppressed by the Bank and the fact was first time acknowledged in the affidavit filed by the Bank in rejoinder during proceedings of the appeal‑‑‑Suppression of facts did not speak much of the credibility of public sector banking institutions entrusted with the funds of depositors and required to maintain proper accounts‑‑‑Amount of Central Excise Duty was not payable by the borrower and such claim was rightly rejected by the Banking Court‑‑‑Mark‑up‑based agreement could not be equated with, interest pendante lite and even otherwise the same could be granted in the discretion of the Court‑‑‑Where the claim of the Bank was found to be exaggerated, the discretion was not perversely exercised by the Banking Court‑‑‑Appeal was dismissed in circumstances.

Habib Bank Limited v. Farooque Compost Fertilizer Corporation Limited and others 1993 MLD 1571; National Bank Limited v. Muhammad Tahir Paracha 1998 CLC 1436 and I.C.P. and others v. Chiniot Textile Mills PLD 1998 Kar. 316 ref.

(b) Islamic Jurisprudence‑‑‑

‑‑‑‑ Banking‑‑‑Islamic banking system‑‑‑Mark‑up, concept of‑‑‑Scope‑‑Concept of mark‑up is founded upon agreement between the parties and the same cannot be equated with interest pendente lite.

Masood Shehreyar for Appellants.

M. Saleem Thapewala for Respondent.

Date of hearing: 6th December, 1999.

MLD 2001 KARACHI HIGH COURT SINDH 334 #

2001 M L D 334

[Karachi]

Before Abdul Ghani Shaikh, J

KHALIL AHMED ‑‑‑Petitioner

versus

MUHAMMAD SAEED and another‑‑‑Respondents

Criminal Acquittal Appeal No.89 of 1999, decided on 26th September, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.249‑A & 417‑‑‑Penal Code (XL of 1860), Ss.448 & 506‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14‑‑Appeal against acquittal‑‑‑Accused who remained absconded was acquitted by Judicial Magistrate on his application under S.249‑A Cr.P.C. on the ground that challan had been submitted after delay of more than seventeen days of the registration of F.I.R.‑‑‑Accused was acquitted without framing charges‑‑‑Validity‑‑‑Application by accused under S.249‑A, Cr.P.C. prior to framing charges was not maintainable‑‑‑Acquittal order passed by Judicial Magistrate on premature application of accused, was set aside by High Court accepting appeal against acquittal.

Shahadat Awan for Appellant.

Panhwar for Respondents.

Habibur Rasheed for the State.

MLD 2001 KARACHI HIGH COURT SINDH 358 #

2001MLD358

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Laghari, JJ

QAMBAR ALI and another‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No‑188 of 2000, decided on 11th October, 2000.

Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑‑S.516‑A‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 74‑‑‑Superdari of Tractor‑‑‑" Charas" weighing 700 grams had been recovered from the tractor belonging to the applicants‑‑‑Section 74 of the Control of Narcotic Substances Act, 1997 having barred the release of any ,vehicle used for the purpose of transportation of narcotics, custody of the said tractor, could not be given to the applicants pending trial of the case‑‑‑Trial Court had not decided the case so far‑‑‑Application for custody of the tractor was misconceived and was dismissed accordingly.

Sajjad Hussain Kolachi for Applicants.

Faizullah Korai, Special Public Prosecutor for Narcotics.

Sher Muhammad Shar, A.A.G..

MLD 2001 KARACHI HIGH COURT SINDH 373 #

2001 M L D 373

[Karachi]

Before Muhammad Ashraf Laghari, J

AIJAZ ALI ‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.443 of 2000, decided on 22nd September, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.396 & 302‑‑‑Bail‑‑‑Accused had allegedly committed highway robbery on gun point and the pistol as well as robbed property had been recovered from his possession‑‑‑Complainant and other prosecution witnesses had rightly picked up the accused in the identification test held on the next day of his arrest‑‑‑Prosecution witnesses including the complainant had no animosity against the accused for his false implication in the case‑‑‑Technicalities were not to be looked into at such stage, nor the deeper evaluation of evidence was permissible under the law at bail stage‑‑‑Case against accused was covered by the prohibition contained in S.497(1), C.P.C.‑‑‑Police had examined certain witnesses in defence of accused who were not mentioned in the F.I.R. and had been unnecessarily examined at investigation stage‑‑‑Bail was refused to accused in circumstances.

Muhammad Yaqoob and another v. The State 1989 PCr.LJ 2227; Muhammad Rafique v. The State 1991 PCr.LJ 857; Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 125 and Ghulam Rasool v. The State 1988 SCMR 557 ref.

Nuruddin Sarki for Applicant.

Sher Muhammad Shar, A.A. ‑G. for the State.

Abdul Fattah Malik for the Complainant.

MLD 2001 KARACHI HIGH COURT SINDH 389 #

2001 M L D 389

[Karachi]

Before Muhammad Roshan Essani, J

NASEER AHMED and 2 others‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Ball Application No.517 of 2000, decided on 5th October, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)‑‑‑Penal Code (XLV of 1860), Ss.324/395/353/365/ 457/458/148/ 149‑‑‑Bail, grant of‑‑‑Delay of six days in lodging the F.I.R. was not plausibly explained by the prosecution‑‑Complainant as well as the alleged abductee had filed affidavits before High Court exonerating the accused from the culpability of the charge‑‑‑Accused had been found innocent in police investigation‑‑‑Case against accused, in circumstances, needed further inquiry as contemplated by S.497(2), Cr.P.C.‑‑‑Accused were enlarged on bail accordingly.

Ali Nawaz Dahraj for Applicants.

Zawar Hussain Jafferi, Addl. A.‑G. for the State.

MLD 2001 KARACHI HIGH COURT SINDH 582 #

2001 M L D 582

[Karachi] `

Before Muhammad Mujeebullah Siddiqui, J

JALAL alias MUHAMMAD NAWAZ and another‑‑‑Applicants

versus

THE STATE-‑‑Respondent

Criminal Bail Application No.638 and Miscellaneous Application No. 1781 of 2000, decided on 23rd November, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 497, 154 & 161‑‑‑Penal Code (XLV of 1860), S.337‑A(i)/337‑F(i) & (iii)‑‑‑Bail, grant of‑‑‑Victim and the complainant had not implicated the accused for the offence of sodomy‑‑‑Mere opinion of the Medical Officer that the act of sodomy had been committed on the victim was not sufficient to implicate the accused in the commission of the said, offence‑‑‑Accused were admitted to bail in circumstances.

Khadim Hussain Solangi for Applicants.

Muhammad Azeem Panwhar, A.‑A.G. for the State.

MLD 2001 KARACHI HIGH COURT SINDH 603 #

2001 M L D 603

[Karachi]

Before Muhammad Roshan Essani, J

MUHAMMAD NAWAZ and another---Applicants

versus

THE STATE---Respondent

Criminal Revision Application No. 9-D of 2000, heard on 28th April, 2000.

Control of Narcotic Substances Act (XXV of 1997)----

----S. 9(b)---Criminal Procedure Code (V of 1898), Ss.439 & 561-A--Revision petition against acquittal of accused and for quashing of F.I.R. registered against the applicants---No appeal having been filed against the acquittal of accused as contemplated under S. 417, Cr.P.C., revision petition was not maintainable---Applicants being not the Public prosecutors, were not even competent to file the appeal against acquittal---Acquitted accused had not been impleaddd as respondent in the revision petition---Contention for quashing of F.I.R. registered against the applicants was misconceived---Case was under investigation and not pending before any Court---High Court, therefore, neither in its revisional jurisdiction nor in its inherent jurisdiction was competent to quash the F.I.R.---Revision petition was dismissed in circumstances.

Ahmed Sae ed v. The State and another 1996 SCMR 186 ref.

Abdul Rasool Abbasi for Applicants. Ali Azhar Tunio, Asstt. A.-G. for the State.

Date of hearing: 28th April, 2000:

MLD 2001 KARACHI HIGH COURT SINDH 630 #

2001 M L D 630

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

PEERAL alias PEER BUX and others‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Applications Nos.D‑347 and 349 of 2000, decided on 13th November, 2000.

Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss. 302/324/337‑A(i)/337‑F(1)/ 147/148/ 149/504‑‑‑Accused had not caused any injury to the deceased and the question of their vicarious liability could not be decided at such stage‑‑Accused and the complainant party were inter‑related and it was also yet to be determined as to which party had acted in aggression‑‑‑Injuries attributed to accused were simple in nature‑‑‑Reasonable grounds existed to believe the accused not guilty of an offence punishable with death, imprisonment for life or imprisonment for ten years‑‑‑Case against accused needed further probe as contemplated under S. 497(2), Cr.P.C.‑‑‑Bail was allowed to accused in circumstances.

Mehmood Akhtar v. Haji Nazar 1995 SCMR 310; Mumtaz Hussain and 5 others' case 1996 SCMR 1125; Attaullah and 3 others v. The State and another 1999 SCMR 1320 and Shoaib Mehmood Butt v. Iftikhar‑ul‑Haq and 3 others 1996 SCMR 1654 rel.

Muhammad Hashim Chandio for Applicants (in Cr. A. No. 347 of 2000).

Azizullah M. Buriro for Applicant (in Criminal Bail Application No.349 of 2000).

Altaf Hussain Surahio for the State:

Ali Nawaz Ghanghro for the Complainant.

MLD 2001 KARACHI HIGH COURT SINDH 648 #

2001 M L D 648

[Karachi]

Before Dr. Ghous Muhammad, J

Messrs ALI BROTHERS and others‑‑‑Appellants

versus

Mrs. NAU$HABA JABEEN and others‑‑‑Respondents

First Rent Appeals Nos.588, 590, 591, 592, 594, 595, 610, 622, 623, 624, 625, 626, 627, and 628 of 1991, decided on 18th November, 1999.

(a) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑‑

‑‑‑‑S.18‑‑‑Notice for change of ownership‑‑‑Provisions of S.18, Sindh Rented Premises Ordinance, 1979 did not require and the landlord was not duty bound to mention the rate of rent as well as arrears of rent in the notice‑‑‑Landlord should only intimate to the tenant regarding change of ownership in writing by registered post and the tenant was under obligation to pay rent due to the landlord within thirty days of receipt of such intimation.

Muhammad Younus v. Dr: S. Muzammil Ali 1981 CLC 327; Fankson & Co. v. Muhammad Hussain PLD 1973 Note 141 at p.213; Boman Abadan Irani v. Jehangiri J. Mobil PLD 1967 Kar. 449; Mst. Nafisa v. Northen Traders 1984 CLC 2711; Syed Azher Imam Rizvi v. Salma Khatoon 1984 MLD 46; Ghulam Samdan v. Abdul Hameed 1992 SCMR 1170 and Habib Bux v. Mst. Bilquis Begum 1995 SCMR 448 ref

(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑‑

‑‑‑‑Ss.8 & 15(2)(ii)‑‑‑Fixation of fair rent‑‑‑Landlord was not required to get the fair rent fixed prior to the institution of the ejectment proceedings‑‑Contention that without getting fair rent fixed under S.8 of Sindh Rented Premises Ordinance, 1979 the landlord could not claim rent at the rate as claimed in ejectment application, was repelled.

‑‑‑‑S. 18‑‑‑Change of ownership of premises‑‑‑Premises in question was resumed by Abandoned Properties Organization but it was finally restored to the landlord by Supreme Court‑‑‑When action of the Organization resuming premises was declared null and void by the Supreme Court and premises was restored to the landlord, there was change/transfer of ownership at least for the purpose of payment of rent by the tenants, though such transfer was not by way of sale, gift and inheritance‑‑‑Provisions of S.18 of Sindh Rented Premises Ordinance, 1979, would attract in the case‑‑‑Contention that S.18 was not applicable was repelled.

Muhammad Aslam Zia and others v. Yousuf Ali PLD 1958 SC 104; Government of Sindh and others v. Khaleel Ahmed and others 1994 SCMR 782 and Akbar Hussain v. Muhammad Tayyab PLD 1995 Kar. 452 ref. '

(d) Administration of justice‑‑‑

‑‑‑‑Technicalities not to defeat the ends of justice.

(e) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑‑

‑‑‑‑Ss.15(2)(ii) ,& 18‑‑‑Default in payment of rent‑‑‑Technical default‑‑Notice of change of ownership‑‑‑Tenants despite receipt of two notices for change of ownership of premises in question did not tender/pay rent at the rate at which they had lastly paid without any protest‑‑‑Tenants who were liable to pay/tender rent having failed to pay rent were rightly held defaulter, as such default could not be termed as a "technical default."

Muhammad Saleem Qureshi v. M. Mohsin Butt 1996 CLC 381; Pakistan Food Manufacturing v. Sadiq Ishaque 1992 CLC 482; Munawar Hasan v. Badiul Hasan 1992 CLC 2495; Abdul Malik v. Mrs. Qaisar Jehan 1995 SCMR 204; Habib Bukhsh v. Mst. Bilqis Begum 1995 SCMR 448 and Mehboob Jewellers and others v Nur Ahmed 1989 SCMR 1327 ref.

(f) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑‑

‑‑‑‑S.2(f)‑‑‑"Landlord" would include an owner of the property.

(g) Sindh Rented Premises Ordinance (XVII1 of 1979)‑‑‑‑

‑‑‑‑S.15(2)(ii)‑‑‑Wilful default in payment of rent ‑‑‑Condonation‑‑Jurisdiction of Rent Controller‑‑‑Once the tenant was found to have paid the rent lesser than the amount due and payable by him, it would amount to a "wilful and deliberate default" in terms of S.15(2)(ii) of Sindh Rented Premises Ordinance, 1979‑‑‑Rent Controller was not empowered to condone such default committed by the tenants, but was duty bound to pass order of ejectment of the tenant on that ground.

H.A. Rehmani for Appellants (in F.R.As., Nos.588, 590, 591,.592, 594, 595 and 610 of 1991).

Zia Qureshi for Respondents (in F.R.As., Nos. 622 to 628 of

S.M. Akhtar and Arshad Mobin Ahmed for Appellants (in F.R.As., Nos. 622 to 628 of 1991).

Date of hearing: 11th February, 1999.

MLD 2001 KARACHI HIGH COURT SINDH 651 #

2001 M L D 951

[Karachi]

Before Ali Muhammad Baloch, J

STATE BANK OF PAKISTAN through Building Officer, Banking Control

Department, Karachi‑‑‑‑Petitioner

versus

Syed NASEFM MURTAZA JAFRI and 4 others‑‑‑‑Respondents

Criminal Original Miscellaneous Applications Nos.20 and 21 of 1992, decided on 22nd September, 1997.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 265‑K‑‑‑Banking Companies Ordinance (LVII of 1962), Ss.43‑D, 43‑E & 83(1‑C)‑‑‑Application for acquittal of accused without proceedings‑‑‑Firm "Reliant Enterprises" was dissolved and after its dissolution a company under the name of "Reliant Enterprises (Pvt.) Ltd." had come into being‑‑Accused at the time of issuance of notice to them were neither members of dissolved firm nor after its dissolution had joined as Directors of the newly formed company‑‑‑Accused, in circumstances, could not be convicted as a result of directive/notice issued by the complainant viz. State Bank of Pakistan as the notice was not issued to proper persons‑‑‑Application filed by accused under S.265‑K, Cr.P.C. for their acquittal, was accepted is circumstances.

Ainuddin for the Complainant.

A.M. Naqvi for Respondents.

Date of hearing: 22nd September, 1997.

MLD 2001 KARACHI HIGH COURT SINDH 696 #

2001 M L D 696

[Karachi]

Before Ghulam Rabbani, J

SHOUKAT ALI ‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.223 of 1998, decided on 29th October, 1998.

Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss.302/305/344/201/452/392/147/148/149/109/ 420‑‑‑Pre‑arrest bail‑‑‑Trial Court had not declared the accused as a proclaimed offender‑‑‑Was yet to be determined if the accused had in any way concealed the detenu and provided protection to the co‑accused and tried to destroy evidence against them‑‑‑Case of accused, thus, needed further inquiry‑‑‑Main culprits in the case had already been granted bail by High Court‑‑‑No useful purpose, thus, could be served by putting the accused in jail‑‑‑Case had already been challaned‑‑‑Pre‑arrest bail was allowed to accused in circumstances.

Muhammad Naseem alias Naseemo v. The State 1996 PCr.LJ 1302 and Muhammad Fazal alias Bodi v. The State 1979 SCMR 9 ref.

Dost Muhammad Sirai for Applicant.

Ali Azhar Tunio, Asstt. A.‑G. for the State.

MLD 2001 KARACHI HIGH COURT SINDH 715 #

2001 MLD715

[Karachi]

Before Muhammad Ashraf Leghari, J

AMIR NABI, ABRO and another‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑186 of 2000, decided on 31st May, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 11/16‑‑‑Pre‑arrest bail ‑‑‑Abductee in her statement recorded under S.164, Cr.P.C. as well as in her affidavit filed in the Court had exonerated the accused of the charge‑-‑Parties were closely related inter se and by the efforts of the community people they had arrived at a compromise which did not need to be disturbed or discouraged‑‑‑Pre‑arrest bail was granted to the accused in circumstances.

Muhammad Nawaz Chandio for Applicants.

Ali Azhar Tunio, Asstt. A.‑G. for the State.

MLD 2001 KARACHI HIGH COURT SINDH 776 #

2001 M L D 776

[Karachi]

Before Muhammad Moosa Leghari, J

MITHAL and another‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No: 650 of 2000, decided on 28th November, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/324/337‑A(ii)/337‑F (i)/147/148/149/114‑‑‑ Bail‑‑‑Parties were related inter se and resided near each other‑‑‑One accused though armed with a gun did not use the same‑‑‑No injury was caused to the complainant party by the gun fire made by the other accused‑‑‑Incident had‑ taken place suddenly without any pre-concert or premeditation in which both the parties had received injuries‑‑‑Cross‑cases were pending between the parties and it was yet to be determined as to which party was aggressor and which party was the victim of aggression‑‑‑Case against accused, in circumstances, required further inquiry and they were admitted to bail accordingly.

Abdul Rasool Abbasi for Applicants.

Ali Azhar Tunio, Asstt A‑.G.

MLD 2001 KARACHI HIGH COURT SINDH 786 #

2001 M L D 786

[Karachi]

Before Muhammad Afzal Soomro, J

SIKANDER ALI ‑‑‑ Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑492 of 2000, decided on 2nd February, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S. 452‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3)‑‑‑West Pakistan Arms Ordinance (XX of 1965), S. 13‑D‑‑‑Bail, grant of‑‑‑Name of accused did not appear in the F. I. R. and no evidence was forthcoming against him‑‑Accused was not implicated by the eye‑witnesses who were examined during the trial‑‑‑No other evidence by way of judicial or extra‑judicial confession was available against the accused‑‑ ‑All that which was against the accused was the factum of his abscondence which alone could not disentitle him to grant of bail‑‑‑Accused was granted bail in circumstances.

Muhammad Saleem G. N. Jessar for Applicant.

Altaf Hussain Surahio for the State.

MLD 2001 KARACHI HIGH COURT SINDH 879 #

2001 M L D 879

[Karachi]

Before Deedar Hussain Shah, J

Mst. NAZ SIDDIQUI ‑‑‑‑ Petitioner

versus

KAMRAN SIDDIQUI and another‑‑‑‑Respondents

Criminal Miscellaneous No.312 of 1997, decided on 7th November, 1997

(a) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.491‑‑‑Habeas corpus proceedings‑‑‑Nature and scope‑‑‑Proceedings by way of habeas corpus are the one calling upon person having custody of another person to produce him and demonstrate under what authority he held that person in custody‑‑‑high Court has two‑fold jurisdiction under S. 491 Cr.P.C., first to hear appal in its appellate criminal jurisdiction and send to set person in custody at liberty if he was or improperly detained‑‑‑If person in custody was minor, Court could pass order for his custody to guardian who would be dealing with him in accordance with law and if person in custody vas major only, jurisdiction which Court could exercise was to set him at liberty when illegally or improperly detained in public or private custody.

(b) Guardians and Wards Act (VIII of 1890)‑‑‑‑

‑‑‑‑S.25‑‑‑Criminal Procedure Code (V of 10), S. 491‑‑‑Custody of minor ‑‑‑Habeas corups petition‑‑‑Petitioner/mother of minor had herself approached Court of Civil and Family Judge submitting application for custody of minor under S.25 of Guardians and Wards Act, 1890, in which interim order under S. 12 pf said Act had been issued to the effect that petitioner could meet minor at the, appointed days‑‑‑Since parties were pursuing their matter before Court of competent jurisdiction, they could be permitted to prove their case in presence of interim order passed by Court of competent jurisdiction, there was no possibility that respondent would take away minor child out of jurisdiction of the Court‑‑‑Guardian Court being proper Court, could decide issue of custody of minor between the parties.

Mst. Khalida Begum v. Muhammad Altaf 1983 CLC 678; Ata Muhammad v. Ghulam Rasood Khan and others 1988 SCMR 189 Mst. Farzana v. Syed Muhammad Afzal 2nd another 1991 PCr.LJ 758 Mst. Dilbar Jan v. Khan Muhammad 1992 PCr.LJ 683: Mst. Zubeda Khatoon alias Aqleema Khatoon alias Parveei v. Saadullah A. Siddiqui and 4 others 1992 PCr.LJ 690; Ahmed Sane and 2 others v. Saadia Ahmed and another 1996 SCMR 268; Afshan Naureen v. Nadeem Abbas Shah 1997 MLD 197; Rubina Ali v. Rafaqat Ali and others 1997 MLD 2066; Abdul Rehman Khakwani and another v. Abdul Majid Khakwani and 2 others 1997 SCMR 1480; Ehkam‑e‑Balughat by Mahmood Ahmad Ghazi‑Abdul Rahim Ashraf Baloch of Idara‑e‑Tehqiqat Islami Benalaqwami University, Islamabad, p.72; Sint. Pari Bai v. Amrat Lal and others 1997 PCr.LJ 105; 1996 SCMR 1083 and Begaan v. Abdul Hamid 1983 PCr.LJ 1470 ref.

Khawaja Shamsul Islam for Applicant.

Talmiz Burney for Respondent No. l .

Abdul Haleem Siddiqui for A.‑G. Sindh for the State.

MLD 2001 KARACHI HIGH COURT SINDH 902 #

2001 M L D 902

[Karachi]

Before Saiyed Saeed Ashhad and Mrs. Majida Razvi, JJ

ABDUL MANNAN‑‑‑‑Petitioner

versus

THE STATE‑‑‑‑Respondent

Criminal Appeal No. 165 of 1995, heard on 23rd October, 1997.

(a) West Pakistan Arms Ordinance (XX of 1965)‑‑‑

‑‑‑S.13‑D‑‑‑Appreciation of evidence‑‑.‑Delay of two and half hour occurred in lodging F.I.R. despite distance between place of incident and police station was only one kilometre‑‑‑Prosecution neither summoned nor made any effort to summon two independent witnesses of locality or to call two persons from amongst persons present at the time of occurrence despite same having taken place at day time‑‑‑Only one independent/private person who was shown as a witness, was not‑ examined in the Trial Court perhaps due to the reason that if examined, he would not support prosecution story‑‑Trial Court did not give full and proper weight to statement of accused recorded under S.342, Cr.P.C. as well as his statement on oath‑‑‑Trial Court in convicting accused had completely ignored principles of criminal administration of justice and had relied upon evidence and material which in normal and ordinary circumstances could not be held to be sufficient, satisfactory and reliable for proving guilt of accused‑‑‑Prosecution having failed to establish guilt of accused beyond any shadow of doubt, Trial Court was not justified in convicting the accused.

Mushtaq Ahmed v. The State PLD 1996 SC 574 and The State v. Bashir and others PLD 1997 SC 408 ref.

(b) Criminal trial‑‑‑‑

‑‑‑‑ Defence raised by accused‑‑‑In a criminal case when accused raised a defence which appeared to be plausible or likely to be true to the same extent as the prosecution's case, the version of defence was to be accepted and prosecution version was to be discarded‑‑‑When prosecution evidence adduced by the prosecution and the material placed by accused was capable of two different versions of incident or that prosecution and defence version were both plausible then version favouring the accused was to be accepted.

Wali Muhammad v. Nawab and others‑ 1984 SCMR 914 and Muhammad Sultan v. Muhammad Aslam and another 1988 SCMR 857 ref.

Muhammad Khalil Dogar for Appellant.

Habib Ahmed, A.A.‑G. Sindh for the State.

Date of hearing: 23rd October, 1997.

MLD 2001 KARACHI HIGH COURT SINDH 916 #

2001MLD916

[Karachi]

Before Zakir Hussain K. Mirza, J

Syed RAZA ALI ‑‑‑Applicant

versus .

THE STATE‑‑‑Respondent

Criminal Revision Application No. 45 of 1997, decided on 15th October, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 342, 364‑A & 365‑A‑‑‑Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), Ss.3 & 4‑‑‑Transfer of case to Special Court‑‑Case was challaned under ,Ss.342 & 364‑A, P.P.C. on completion of investigation and accused were sent up to face their trial before Court of Session‑‑‑Charge was framed against accused after more than one year of submission of challan and when case was fixed for evidence, application was moved by prosecution praying that challan should be returned for presentation before Special Court as, offence under S.365‑A, P.P.C. was indicated whereupon Sessions Court sent the case to Special Court‑‑Validity‑‑‑Sessions Court straightaway sent matter to Special Court, without recording some evidence which could justify that offence would fall under S.365‑A, P.P.C.---Order sending case to Special Court, was not proper in circumstances.

(b) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 227‑‑‑Alteration of charge‑‑‑Once charge was framed, it could only be altered after some material was available on record to justify that charge should have been framed for some other major offence and only then charge could be amended without recording evidence.

Muhammad Hanif Kashmiri for Applicant.

Ashiq Hussain Mehar for the State.

MLD 2001 KARACHI HIGH COURT SINDH 921 #

2001 M L D 921

[Karachi]

Before Wajihuddin Ahmed, C.J. and Ali Muhammad Baloch, J

MUHAMMAD HASHIM and 2 others‑‑‑‑Applicants

versus

THE STATE‑‑‑‑Respondent

Criminal Bail Applications Nos. 1750 to 1752 of 1997, heard on 10th November, 1997.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/34‑‑‑Bail, grant of‑‑‑Accused seeking bail on statutory ground had contended that since they had remained in jail for more than two years and trial had not concluded for no fault on their part, they were entitled to be released on bail as they had earned right to be released on bail on account of statutory delay‑‑‑Accused persons were involved in six to eight cases, majority of which were murder cases pending before Suppression of Terrorist Activities Court‑‑‑Accused, though had remained in jail for a period beyond two years and thereby third proviso to S.497(1), Cr.P.C. was attracted to their case but statutory right granted to accused by said third proviso was controlled by fourth proviso to S.497(1), Cr.P.C.‑‑‑Wherever case was covered by fourth proviso to S.497(1), Cr.P.C. accused would be deprived of right of bail on statutory delay‑‑‑Acts committed by accused being acts of terrorism they could conveniently be called dangerous persons‑‑‑Trial Court, in circumstances, had rightly refused to grant bail to accused on ground of statutory delay.

A.M. Naqvi for Petitioners.

Nemo for the State.

Date of hearing: 10th November, 1997.

MLD 2001 KARACHI HIGH COURT SINDH 930 #

2001 M L D 930

[Karachi]

Before Amanullah Abbasi, J

MUKHTAR AHMED and another‑‑‑‑Applicants

versus

THE STATE‑‑‑‑Respondent

Criminal Application No.42 of 1996, decided on 14th May, 1997

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/34, 318 & 319 [as substituted by Criminal Law (Second Amendment) Ordinance (XII of 1993)]‑‑‑Appreciation of evidence‑‑Occurrence had taken place on account of quarrel between children ‑‑‑Co-accused who was father of main accused was empty‑handed and did not cause any injury to the deceased, but he was said to have instigated accused who had caused fatal injury to the deceased ‑‑‑Co‑accused having not caused any injury to the deceased, possibility of his false implication could not be ruled out ‑‑‑Co‑accused was acquitted giving him benefit of doubt‑‑‑Act of main accused was not premeditated, but he had acted as his father/co‑accused was beaten by children of complainant party‑‑‑Provisions of Qisas or Diyat were not applicable to the case of accused, because case was registered under S.302, P.P.C. and conviction was also made for offence under the same provision‑‑‑Case of accused fell under S.318, P.P.C. for which sentence had been provided under S.319, P.P.C. which was five years' imprisonment‑‑‑Accused having already suffered imprisonment of five years, his . sentence was reduced to period already undergone by him in. circumstances.

1976 SCMR 191 and 1979 PCr.LJ 51 ref.

Abdul Mujeeb Pirzada and Syed Khalid Shah for Applicants.

Muhammad Saleem, A.A.‑G. for the State.

Sathi M. Ishaque for the Complainant

Date of hearing: 21st April, 1997.

MLD 2001 KARACHI HIGH COURT SINDH 939 #

2001 M L D 939

[Karachi]

Before Ali Muhammad Baloch, J

Syed RIZWAN AHMED RIZV1 ‑‑‑ Applicant

versus

THE STATE‑‑‑‑Respondent

Criminal Miscellaneous Application No.646 of 1994, decided on 25th February, 1996.

Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑Ss‑265‑A & 561‑A‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.4‑‑‑Application for quashing of proceedings ‑‑‑Co‑accused who was found in possession of heroin powder at the time of his arrest had stated before Investigating Officer that he was taking the heroin to applicant who had to transfer same to some foreign country‑‑‑Applicant was arrested and challaned simply on said statement of co‑accused and police had failed to collect any other evidence against the applicant‑‑‑Prosecution case against applicant rested entirely on statement of co‑accused‑‑‑Material available with prosecution against applicant could not lead to conviction of applicant and it would be simply abuse of process of Court if proceedings against him were allowed to continue‑‑‑Proceedings against applicant were ordered to be quashed, in circumstances.

1993 PCr.LJ 1440 and 1977 SCMR 292 ref.

Shoukat H. Zubedi for Applicant.

Moula Bux Bhatti for the State.

2001 M L D 992

[Karachi]

Before Dr. Ghous Muhammad, J

MUHAMMAD SARWAR‑‑‑‑Petitioner

versus

SOOFIA LATIF, ADJ, KARACHI (CENTRAL) and 8 others‑‑‑‑Respondents

Criminal Miscellaneous No.291 of 1996, decided on 10th September, 1997

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 561‑A‑‑‑Inherent jurisdiction of High Court‑‑‑Inherent jurisdiction of High Court under S.561‑A, Cr.P.C. was neither alternative nor additional in ‑its character and had to be rarely invoked only in the interest of justice so as to seek redress of grievance for which no other procedure was available and that S.561‑A, Cr.P.C. could not be used to obstruct or divert ordinary course of criminal procedure.

Khawaja Fazal Karim v. The State and others 1986 SCMR 483; Ghulam Muhammad v. Muzammal Khan and 4 others PLD 1967 SC 3.17 and Shahnaz Begum v. Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677 ref.

Petitioner in person.

M. Akram.for Respondent No.2.

Ashique Hussain Mehar for Respondent No.3.

Date of hearing: 2nd September, 1997.

MLD 2001 KARACHI HIGH COURT SINDH 999 #

2001 M L D 999

[Karachi]

Before Hamid Ali Mirza, J

HAMID ALI ‑‑‑ Appellant

versus

Syed ABBAS ALI JAFERY‑‑‑‑Respondent

First Rent Appeal No.55 of 1994, decided on 24th April, 1‑997.

Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑‑

‑‑‑‑S.15(2)(vii)‑‑‑Bona fide personal need of landlord‑‑‑Landlord by producing evidence on record had proved that his son was going to be married and that house already in his occupation was not sufficient for need of his family‑‑‑Rent Controller on basis of evidence on record ordered ejectment of tenant on ground of personal bona fide need of landlord‑‑Finding of fact arrived at by Rent Controller based on evidence on record was un-exceptionable which could not be interfered with in appeal.

Muhammad Hafeez and others v. Fazal Ahmad 1995 CLC 1634; Muhammad Moosa Khawaja and another v. Haji Muhammad Umar 1995 MLD 4880; Aftab Ahmad Saeed v. Qmaruddin 1992 MLD 1601; S.M. Zaffar Pervez v. Syed Nasiruddin K. Kamal Shah through Legal Heirs 1995 CLC 1719; Noor Ali v. Saleem 1996 MLD 71; Mst. Amtul Begum v. Juma Khan 1996 MLD 853; Miss Zaffar Fatima Rizvi v. Syed Saleem Raza 1993 CLC 270; Sultan Shah v. Muhammad Hussain 1995 MLD 847; Chartered Bank v. Shirin Bai Y. Sajjan and, another 1995 MLD 1054 and Muhammad Bashir v. Sakhawat Hussain 1991 SCMR ref.

Baqar Hussain for Appellant.

Rizwan Ahmad Siddiqui for

Date of hearing: 24th April, 1997.

MLD 2001 KARACHI HIGH COURT SINDH 1005 #

2001 M L D 1005

[Karachi]

Before Dr. Ghous Muhammad, J

DADABHOY DURABSHAW SETHNA, ADVOCATE‑‑‑Appellant

Versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN‑‑‑Respondent

First Rent Appeal No. 597 of 1991, decided on 28th November, 1998.

Sindh Rented Premises Ordinance (XVII of 1979)‑‑

‑‑‑‑S. 15‑‑‑Ejectment proceedings‑‑‑Opportunity of being heard to the tenant‑‑‑Rent Controller had given sufficient opportunity of hearing to the tenant and her counsel to pursue their case properly and diligently but they failed to do so within the parameters of reasonableness, fairness and equity‑‑Rent Controller allowed the ejectment application and directed the tenant to hand over the possession to the landlord‑‑‑Validity‑‑‑Tenant was not condemned unheard and tenant and her counsel had committed gross negligence in conducting the case before the Rent Controller‑‑‑Order passed by the Rent Controller did not require interference in circumstances.

Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382; Jamil Ahmad v. Late Saifuddin 1997 SCMR 260; Province of Punjab v. Col. Abdul Majeed 1997 SCMR 1692; Shezan Limited v. Abdul Ghaffar and others 1992 SCMR 2400; Muhammad Ashraf Shaikh. v. Messrs Aeroflot Airlines 1993 CLC 555; Abdul Farid Khan v. Ferozdin 1993 CLC 515; Mst. Azizan v. Meherdin 1993 CLC 1187; Muhammad Siddiq v. Fakir Muhammad 1993 CLC 1158; Mst. Ghulam Fatima v. Chief Administrator Auqaf 1993 CLC 692; Mst. Alia Masood v. Mrs. Mussarat Musawar PLD 1993 Kar. 676; Muhammad Ali v. Imdad Hussain 1997 CLC 768; Muhamamd Afzal v. Small Busienss Corporation 1997 CLC 1080; Dr. M. Mustafa Hussain v. Muhammad Mustafa PLD 1986 Kar. 199; Khawaja Gulzar Ahmed v. Mst. Latifan 1985 CLC 1044; Haji Rashid Ahmad v. Mst. Akhtari Jehan 1988 CLC 262 and De. Zubeda Hamid Ali Khan v Mrs. Shibli 1991 MLD 1383 distinguished.

Messrs Niazi Institute of Science Organization v. Anwar Zamani. 1989 SCMR 261;. Mst. Shirin Begum v. Habib Bhoy 1988 SCMR 670 Rehman Ali v. Javed‑ur‑Rehman 1985 SCMR 698; Muhammad Suleman Sulfi v. Mst. Azra Shamim 1989 SCMR 1810; Rafiq Ahmad Khawaja v Abdul Haleem 1982 SCMR 1229; M. Rafique Malik v. Mst. Surriyya Khanum and 4 others 1995 CLC 1933; Messrs Niazi Institute of Science Organization v. Anwar Zamani 1987 CLC 1804; Shaikh Muhammad Iqbal v. Saira Bano 1993 CLC 1761; Kamaruddin Shalwani v. Ahmad Muneer Nanawatty 1993 MLD 1341; Mehr Abdur Rashid v. Ch. Sher Ali 1993 MLD 2149; Mirza Abdul Ghafoor v. Shafi Woollen Industries Ltd. PLD 1989 Lah. 299 and Dr. Ubaidur Raza Khan v. Mrs. Saghera Bano 1994 CLC 1302 ref.

S.M. Gharibnawaz Daccawala for Appellant.

Mian Mushtaq Ahmad for Respondent.

Date of hearing: 5th November, 1998.

MLD 2001 KARACHI HIGH COURT SINDH 1024 #

2001 ML D 1024

[Karachi]

Before Abdul Hameed Dogar, J

Mst. ANSAR JEHAN JILLANI and another‑‑‑Applicants

Versus

Dr. MEHMOOD ZULQARNAIN JILLANI‑‑‑Respondent

Civil Transfer Application No.21 of 1996, decided on 18th March, 1998.

Civil Procedure Code (Y of 1908)‑‑‑

‑‑‑‑S.24‑‑‑Transfer of civil suit‑‑‑Rationality‑‑‑Conflicting decision, avoidance of‑‑‑Two suits between the same parties, regarding same property were pending adjudication one before the High Court and the other before the Civil Judge‑‑‑Pleadings of the parties in both the suits were same and the substantial questions of fact and law were common‑‑‑Effect‑‑‑Transfer of the suit from the Court of Civil Judge would in no way prejudice the case of the respondent as he had filed the suit in retaliation with regard to same property about which applicants had filed earlier suit‑‑‑To avoid the conflict in decisions of two suits, the suit pending before the Civil Judge was transferred to the High Court.

Shahzada Sultan Humayun v. Nasiruddin 1984 CLC 3090; Masood Bari and another v. Abdul Aziz PLD 1967 Kar. 55 and Usman Ghafoor and 2 others v. Messrs Attock Textile Mills Ltd. 1989 SCMR 818 ref.

Shehanshah Hussain for Applicants.

Raghib Baqi for Respondent.

Date of hearing: 18th March, .1998.

MLD 2001 KARACHI HIGH COURT SINDH 1033 #

2001 M L D 1033

[Karachi]

Before Muhammad Moosa Leghari, J

ALEEMUDDIN‑‑‑Appellant

Versus

AAMIR GAZDAR and another‑‑‑Respondents

First Rent Appeal No. 1435, Civil Miscellaneous Applications Nos.2399 and 2400 of 2000, decided on 8th November, 2000.

Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑‑

‑‑‑‑S.21‑‑‑Civil Procedure Code (V of 1908), S.12(2)‑‑‑Appeal‑‑‑Failure to vacate premises in time granted by Supreme Court ‑‑‑Ejectment order passed by Rent Controller was affirmed by Supreme Court‑‑‑Landlord filed execution petition and as a counterblast the tenant submitted application under S.12(2), C.P.C.‑‑‑Such application was found to be fallacious by the Rent Controller and the same was dismissed‑‑‑Validity‑‑‑Where order of ejectment passed by the Rent Controller had attained finality after the same was affirmed by Supreme Court, the judgment‑ of Rent Controller had merged into the judgment of Supreme Court‑‑‑Tenant had filed the appeal in order to protract the proceedings in a bad faith‑‑‑Tenant did not vacate the premises even after expiry of time granted by Supreme Court and when execution proceedings were filed, such fallacious application was moved‑‑Order passed by Rent Controller was a speaking order and detailed findings were given on the application under S.12(2), C.P.C.‑‑‑Appeal was dismissed in circumstances.

Mubarik Ali v. Fazal Muhammad and another 1987 SCMR 1627 distinguished.

Messrs Bambino Ltd. v. Messrs Selmor International Ltd. and another PLD 1983 SC 155; Mst. Zaibunnisa v. Sultan Ahmad and another 1986 CLC 1520 and Sh. Muhammad Azim v. Basit Yar Khan and another 1989 CLC 302 ref.

Dilwar Hussain for Appellant.

MLD 2001 KARACHI HIGH COURT SINDH 1037 #

2001 M L D 1037

[Karachi]

Before Anwar Zaheer Jamali, J

MUHAMMAD AKRAM alias AKAN ‑‑‑Applicant

Versus

Mst. PATHANI through Legal Heirs and 5 others‑‑‑‑Respondents

Civil Revision Application No.20 of 1999, heard on 18th September, 2000.

(a) Specific Relief Act (I of 1877)‑‑‑‑

‑‑‑‑S.12‑‑‑Limitation Act (IX of 1908), S.3 & Art. 113‑‑‑Specific performance of agreement to sell‑‑‑Limitation‑‑‑Concurrent findings of fact by both the Courts below‑‑‑Date of registration of sale‑deed mentioned in the agreement was 30‑6‑1988 and suit was filed on 28‑3‑1996‑‑‑Plaintiff failed to prove execution of the disputed agreement‑‑‑Both the Courts below dismisses the suit concurrently‑‑‑Validity‑‑‑Suit for specific performance of contract was governed by Art. 113 of Limitation Act, 1908, which provided period limitation for such suits to be computed from the date fixed for performance in the agreement‑‑‑Suit was filed on 28‑3‑1996 and the same was time barred‑‑‑Findings of, facts by both the Courts below were based on proper appreciation of evidence‑‑‑Plaintiff failed to show any misreading of evidence or jurisdictional defect in the judgments of the two Courts below‑‑High Court refused to interfere in the same.

Muhammad Bux v. Muhammad Ali 1984 SCMR 504; Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139 and Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431 fol.

Mst. Munawar Bibi v. Mst. Meheen Quddusi 1986 CLC 1887; Messrs Tanzeem Overseas v. Mst. Zainab Bai and another PLD 1965 (W.P.) Kar. 274; Abdul Hafiz and another v. Muzaffar Karim PLD 1973 Kar. 253; Muhamamd Hussain v. Abdul Razzaq and another 1970 SCMR 506; Muhammad Rafique v. Muhammad Ibrahim 1989 CLC 1318 and PLD 1982 SC (AJ&K) 76 ref.

(b) Administration of justice‑‑‑

‑‑‑‑Party approaching Court for seeking some relief has to stand on his own legs and any weakness in the case of other side neither improves his case nor such party is entitled to any relief on that basis.

Sudhangshu Bimal Biswas v. MD. Mustafa Chowdhary 1968 SCMR 213 and MD Anwarullah Mazumdar v. Tanuna Bibi and 5 others 1971 SCMR 94 ref.

‑‑‑‑S.3‑‑‑Limitation‑‑‑Duty of Court‑‑‑Failure to raise plea of limitation by a party in his pleading‑‑‑Effect‑‑‑Court has to examine question of limitation irrespective of the fact whether such plea has been raised by a party in his pleadings or not.

Moohanlal K. Makhijani for Applicant.

Rehmat Ali Rajput for Respondents Nos. 1‑A to 1‑D.

G.A. Shahani, Addl. A.‑G. for the Official Respondents.

Date of hearing: 18th September, 2000.

MLD 2001 KARACHI HIGH COURT SINDH 1051 #

2001 M L D 1051

[Karachi]

Before Sabihuddin Ahmed and Ghulam Rabbani, JJ

GHULAM ABBAS LASHARI and another‑‑‑Petitioners

versus

PROVINCE OF SINDH and others‑‑‑Respondents

Constitutional Petition No. D‑1451 and Miscellaneous Application No.3991 of 2000, decided on 27th October, 2000.

(a) Punjab Agricultural Produce Markets Act (V of 1939)‑‑‑

‑‑‑‑Preamble‑‑‑Markets, establishment of‑‑‑Object‑‑‑Such markets are established under the provisions of Agricultural Produce Markets Act, 1939, to provide better regulation of sales and purchases and check of agricultural produce.

(b) Sindh Agricultural Produce Markets Rules, 1940‑‑‑

‑‑‑‑R. 29(ii)‑‑‑"Market fee" and "trade allowance"‑‑‑Distinction‑‑‑"Market fee" and "trade allowance" are altogether different kinds of imposts‑‑‑Market fee is a levy which is payable by every licensed dealer to the Market Committee which renders certain services and the funds whereof are to be expended for purposes specified in the statute‑‑‑On the other hand prescribed rate of trade allowance is the maximum amount which a dealer can recover from a buyer or seller who transacts business through the dealer‑‑‑Dealer appropriates the amount of trade allowance to himself.

‑‑‑‑Ss. 6, 19 & 22‑‑‑Sindh Agricultural Produce Markets Rules, 1940, R.29(ii)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Collection of market fee qua transactions relating to livestock within the notified areas of the whole division‑‑‑Collection of market fee or trade allowance from transactions outside notified market area ‑‑‑Validity‑‑-Grant of licence to dealer only enabled him to carry on his business in the notified market area‑‑‑Dealer has to transact business in conformity with the requirements of Agricultural Produce Markets Act, 1939, and Sindh Agricultural Produce Markets Rules, 1940‑‑‑Such dealer could not recover market fee or trade allowance from persons who did not transact business through the dealer.

Ansari Abdul Latif for Petitioners.

Abdul Latif Qureshi, Secretary on behalf of Respondent No.2.

Muhammad Sarwar Khan, A.A.‑G. for Respondents Nos. 1, 3 and 4.

M. Yasin Kayani for Respondent No.5.

Aleem Akber Sheikh for Respondent No.6.

Mehmood A. Qureshi for Respondent No.7.

MLD 2001 KARACHI HIGH COURT SINDH 1059 #

2001 M L D 1059

[Karachi]

Before Zia Perwez, J

RAMZAN ALI ‑‑‑Applicant

versus

Mst. RASHIDA BEGUM and another‑‑‑Respondents

Civil Revision Application No. 97 of 1997, decided on 2nd November, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Revision‑‑‑Re‑examination of evidence ‑‑‑Non‑eppearance of the petitioner‑‑‑Findings of facts by the Courts below‑‑‑Jurisdiction of High Court‑‑‑Scope‑‑‑High Court in exercise of revisional powers refused to interfere in the conclusion of the Courts below on the question of fact by means of re‑examination of evidence‑‑‑None having appeared on behalf of the petitioner when the case was called by High Court for three times and no case under S.115(a)(b)(c), C.P.C. having been made out, revision was dismissed.

Kanwal Nain v. Fateh Khan PLD 1983 SC 53 rel.

Nemo for Applicant.

Abdul Karim Siddiqui for Respondent No. 1.

MLD 2001 KARACHI HIGH COURT SINDH 1065 #

2001 M L D 1065

[Karachi]

Before Hamid Ali Mirza and Shabbir Ahmed, JJ

MOIN'S (PRIVATE) LIMITED---Appellant

versus

PAKISTAN TELEVISION CORPORATION LTD., KARACHI and another---Respondents

High Court Appeals Nos. 228 and 277 of 1999, heard on 24th February, 2000.

(a) Civil Procedure Code (V of 1908)---

---- VIII, R.10---Non-filing of written statement---Announcement of judgment---Discretion of Court---Scope---Court in absence of written statement had discretion to announce the judgment---Such discretion should be exercised judicially---Judgment should be valid and legal though passed without recording evidence.

Hakmat Bibi v. Imamuddin PLD 1987 SC 22; Ijaz Haroon v. Inam Durani PLD 1989 Kar. 304 and Allied Bank of Pakistan v. Messrs Faisal Glass Industries PLD 1982 Kar. 94 ref.

(b) Tort---

---- Damages ---Party had to prove factum as well as quantum of damages.

K.M. Nadeem for Appellant (in H.C.A.. No. 228 of 1999).

Kamaluddin for Respondent (in H.C.A. No. 228 of 1999).

MLD 2001 KARACHI HIGH COURT SINDH 1083 #

2001 M L D 1083

[Karachi]

Before Muhammad Roshan Essani, J

MUHAMMAD ITTAYAT KHAN‑‑‑Applicant

versus

Mst. REHMAT KHATOON and others‑‑‑Respondents

Civil Revision Application No. 15 of 1991, decided on 22nd February, 2001.

(a) Approbate and reprobate‑--

‑‑‑‑ Appointment of arbitrator‑‑‑During pendency of suit, with consent and request of the parties‑‑‑Arbitrator, so appointed, filed award which was made rule of the Court‑‑‑One of the parties to the suit contended that arbitrator was not competent to pass an award and Court had illegally made the award rule of the Court‑‑‑Contention was repelled because party could not approbate or reprobate.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Suit for declaration and permanent injunction ‑‑‑Revisional jurisdiction, exercise of‑‑‑Concurrent findings of the two Courts below not suffering from any illegality or material irregularity, could not be interfered with in revisional jurisdiction of High Court.

PLD 1965 Dacca 258; PLD 1965 SC 690; PLD 1979 Kar. 357; PLD 1971 Azad J&K 127; 1979 CLC 283; 1986 SCMR 962; 1986 CLC 281; 1986 CLC 2362; PLD 1987 Quetta‑33; 1990 MLD 261; 1991 SCMR 425; PLD 1991 Kar. 20Q; PLD 1978 .Lah. 829; PLD 1984 Pesh. 285; 1985 SCMR 1215; 1987 CLC 651; 1989 CLC 1030; PLD 1996 Kar. 216; PLD 1990 SC 80; PLD 2000 Lah. 154 and 2000 CLC 567 ref.

‑‑‑‑ Rights of the parties could not be defeated merely upon technicalities.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Revisional jurisdiction, exercise of ‑‑‑Scope‑‑‑Revisional jurisdiction of High Court could be invoked only when order passed by the Court below was without jurisdiction or the Court had failed to exercise the jurisdiction vested in it or had acted illegally or with material irregularity in the exercise of its jurisdiction.

Abdul Naeem for Applicant.

David Lawrence for Respondents.

Date of hearing: 24th January, 2001.

MLD 2001 KARACHI HIGH COURT SINDH 1101 #

2001 M L D 1101

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

WAJAHAT HUSSAIN ---Applicant

versus

AFTAB AHMED and others---Respondents

Revision Application No.286 of 1991, decided on 17th March, 2001.

(a) Jurisdiction---

---- Judgment or order without jurisdiction---Such order is nullity in the eye of law andorder/judgment without jurisdiction being null and void can be just ignored.

(b) Civil Procedure Code (V of 1908)---

----O.XLI, R.237--Remand of case by Appellate Court---Scope---Where material on all the issues is available before the Appellate Court, the Court should decide itself all the questions instead of remanding suit, under O.XLI, R.23, C. P. C.

----O.XLI, R.31(a)---Expression "point for determination" ---Jurisdiction, question of---Validity---Expression "point for determination" refers to all the questions involved in the case including the question of jurisdiction vested in the Trial Court as well as the Appellate Court.

(d) Civil Procedure Code (V of 1908)---

----O.XLI, R.33---Court of appeal---Powers of---Scope---Appeal being the continuation of original suit, the Appellate Court can pass any order which can be made by Trial Court---Where Trial Court has no jurisdiction in respect of any matter, the Appellate Court cannot exercise the jurisdiction while sitting in appeal.

(e) Civil Procedure Code (V of 1908)---

----O.XLI, R.33---Court of appeal---Powers of Appellate Court as examined by the original Court---Scope---Such power of the Appellate Court is always subject to the condition that the Appellate Court itself has jurisdiction and has valid seisin over the matter.

(f) West Pakistan Civil Courts Ordinance (B of 1962)---

----S. 9---Pecuniary jurisdiction of Court---Conversion of suit for declaration and injunction into suit for specific performance---Lower Appellate Court, after converting the suit determined the value of suit at Rs.2,60,000 and directed to pay court-fee on such amount and thereafter in exercise of its appellate jurisdiction allowed the appeal and decreed the suit for specific performance of contract---Validity---Lower Appellate Court, failed to consider that its appellate jurisdiction was originally limited to Rs.50,000 and even after amendment in Civil Courts Ordinance, 1962, the enhanced appellate jurisdiction in respect of matters valued in excess of Rs.2,50,000 vested with the High. Court---Lower Appellate Court, was fully competent to consider if a suit for declaration and injunction could lie converted into a suit for specific performance of contract, however, as soon as the Court had determined the value of the suit property at Rs.2,60,000 the Court ceased to have jurisdiction to decide the issues pertaining to the specific performance of contract and the ancillary issues---Where the Lower Appellate Court had come to such conclusion, the Court should have remanded the case to the Trial Court for deciding the issue---By the time the appeal was disposed of by the Lower Appellate Court, the jurisdiction of the Trial Court was enhanced from Rs.50,000 and, therefore, the Trial Court was fully empowered to decide all the issues competently and with jurisdiction and any party feeling aggrieved could have preferred first appeal before High Court---Judgment and findings of the Lower Appellate Court regarding specific performance of contract and possession were illegal, void and non?existent, for want of jurisdiction and the same were set aside---Case was remanded to the Trial Court for decision afresh---Trial Court was directed by High Court that the parties might be heard on the point if the suit be allowed to be converted into a suit for specific performance of contract.

Ahmad Din v. Muhammad Shafi and others PLD 1971 SC, 762; Muhammad Mustafa and another v. Bashir Ahmed Choudhry and another PLD 1991 Lah. 400; Pramatha Nath Choudhry and others v. Kamir Mondal and others PLD 1965 SC 434; North-West Frontier Province Government, Peshawar v. Abdul Ghafoor Khan PLD 1993 SC 418 and Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506 ref.

(g) Void order---

---- Once an order is void for want of jurisdiction, it cannot be clothed with legality and cannot be validated by any Appellate or Revisional Authority for the reason that an order/judgment which is without foundation cannot be made to stand by any subsequent appellate or revisional order and has to fall on ground being non-existent in law.

Yousuf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak.) 104; Mansab Ali v. Amir and 3 others PLD 1971 SC 124; Raunaq Ali v. Chief Settlement Commissioner and others PLD 1973 SC 236 and Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 ref.

(b) Void order---

---- Limitation against void order---Scope---Where the order has been held to be void and without jurisdiction, no question of limitation is required to be considered for assailing a non-existent order.

(i) Civil Procedure Code (V of 1908)---

----O. XLI, R.23---Court Fees Act (VII of 1870), S.28---Remand of case--?Affixing of court-fee for the second time---Plaintiff had earlier paid court-fee in Lower Appellate Court and the case was remanded to Trial Court to be proceeded as suit for specific performance of contract---Requirement to pay court-fee by plaintiff in Trial Court also in case of remand ---Validity--?Nobody should be penalized for mistake of Court---Where the plaintiff had already paid court-fee in the proceedings before Lower Appellate Court, he was not required to pay the court-fee again on remand of case to the Trial Court in circumstances.

Rehanul Hassan Farooqi for Applicant.

Khalilur Rehman for Respondent.

Date of hearing: 25th October, 2000.

MLD 2001 KARACHI HIGH COURT SINDH 1130 #

2001 M L D 1130

[Karachi]

Before Faiz Muhammad Qureshi, J

Syed ABDUL HAI and others‑‑‑Applicants

versus

MAJEED‑UL‑REHMAN ‑‑‑ Respondent

Revision Application No. 118 of 2W0, decided on .27th January, 2001

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XVII, R.3 & S.115‑‑‑Evidence, failure to produce‑‑‑Deciding the suit against defaulting party‑‑‑Matter pertained to the year 1986, and after lapse of more than 18 years, the plaintiffs failed to adduce the evidence and there was no explanation for such failure‑‑‑Trial Court dismissed the suit and the Appellate Court upheld the judgment of Trial Court‑‑‑Validity‑‑‑Appellate Court had passed the judgment on sound reasons‑‑‑High Court declined to interfere in the same.

PLD 1987 SC 139; PLD 1975 SC 678; 1986 MLD, 501 and Manager, Jammu and Kashmir State Property 'in Pakistan v. Khuda Yar and another PLD 1975 SC 678 ref.

Shakeel Ahmed for Applicants.

Kamaluddin Ahmed for Respondent.

Date of hearing: 24th January, 2001.

MLD 2001 KARACHI HIGH COURT SINDH 1137 #

2001 M L D 1137

[Karachi]

Before Anwar Mansoor Khan, J

HABIB BANK LIMITED‑‑‑Plaintiff

versus

PAKISTAN NATIONAL TEXTILE MILLS and others‑‑‑Defendants

Suit No. 415 and Civil Miscellaneous Applications Nos. 3084 and 7.753 of 2000, decided 24th November, 2000.

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑Ss. 9 & 10‑‑‑Suit for recovery of Bank loan‑‑‑Dismissal of application for leave to appeal‑‑‑Participation of defendant in subsequent proceedings‑‑Scope‑‑‑Defendants were allowed to appear and participate for the purpose of determining the actual amount payable by them to the plaintiff in view of the case in Citibank v. Tariq Hussain Siddiqui reported as PLD 1999 Kar. 304.

Citibank v. Tariq Hassan Siddiqui PLD 1999 Kar. 304 ref.

(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 9‑‑‑Suit for recovery of Bank loan‑‑‑Mark‑up on mark‑up‑‑‑Mark‑up on mark‑up could not be allowed in the light of the judgment passed by Supreme Court in Dr. Muhammad Aslam Khaki v. Syed Muhammad Hashim reported as PLD 2000 SC 225.

Dr. Aslam Khaki .v. Syed Muhammad Hashim PLD 2000 SC 225 ref

‑‑‑‑S. 9‑‑‑Suit for recovery of Bank Loan‑‑‑Mortgage, basis of loan ‑‑‑Effect‑‑Where there was no guarantee and the defendants had, been sued on the basis of mortgage, the defendants would not be liable beyond the sale or value of the mortgaged properties‑‑‑Suit was decreed accordingly.

Ismail Merchant, Advocate. A.H. Mirza, Advocate.

M. Saleem Thephdawala, Advocate

MLD 2001 KARACHI HIGH COURT SINDH 1142 #

2001 M L D 1142

[Karachi]

Before Muhammad Ashraf Leghnri, J

NABI DAD and others‑‑‑Applicants

versus

PROVINCE OF SINDH and others‑‑‑Respondents

Revision Application No. 104 and Civil Miscellaneous Application No. 471 of 1996, decided on 16th November, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Limitation Act (IX of 1908), Art. 14‑‑‑Specific Relief Act (I of 1877), Ss.42 & 54‑‑‑Suit for declaration and permanent in junction‑‑‑Order passed by Revenue Authorities‑‑‑Setting aside of such order ‑‑‑Limitation‑‑Concurrent findings of fact by the Courts below‑‑‑Order was passed by Assistant Commissioner on 23‑11‑1970 and was not challenged by plaintiffs by filing suit within a prescribed time of 12 months as provided by Art. 14 of the Limitation Act, 1908‑‑‑No evidence was adduced by the plaintiffs to show or prove any proprietary right over the land‑‑‑Suit was dismissed by Trial Court and the judgment was upheld by Lower Appellate Court‑‑Validity‑‑‑Concurrent findings of two Courts below on facts could not be lightly interfered with‑‑‑Status of the plaintiff was only that of encroachers‑‑Where no legal plea was raised by the plaintiffs such, status of the plaintiffs could not be legalized or justified under law‑‑‑Judgments and decrees of the Courts below did not suffer from illegalities or infirmities and required no interference.

Hussain Bux v. Settlement Commissioner, Rawalpindi and others PLD 1970. SC 1 and Syed Nazir Hassan v. Settlement Commissioner, Lyallpur and another PLD 1974 Lah. 434 ref.

MLD 2001 KARACHI HIGH COURT SINDH 1147 #

2001 M L D 1147

[Karachi]

Before Faiz Muhammad Qureshi, J

Mst. FAKHRUN NISA‑‑‑Appellant

versus

BASHIR ARMED‑‑‑Respondent

First Rent Appeal No. 18 of 1999, decided on 16th January, 2001.

Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 15‑‑‑Ejectment of tenant‑‑‑Bona fide persons need of landlord‑‑Default m monthly rent‑‑‑Proof‑‑‑Landlady had let out her two other flats to new tenants‑‑‑Such plea raised by the tenant was admitted by the witnesses of landlady in their evidence‑‑‑Effect‑‑‑On such admission of the witnesses of landlady, it could be said that the premises was not required by the landlady for her personal bona fide use or for her family members‑‑‑Tenant from his evidence had proved that the rent had regularly been deposited firstly with the landlady and subsequently with the Rent Controller ‑‑‑Ejectment application was rightly dismissed by the Rent Controller in circumstances.

Muhammad Farooq for Appellant.

Respondent in person.

Date of hearing: 16th January, 2001.

MLD 2001 KARACHI HIGH COURT SINDH 1154 #

2001 M L D 1154

[Karachi]

Before Muhammad Ashraf Leghari, J

GUL MUHAMMAD ---Applicant

versus

MUHAMMAD SADDIQUE and others---Respondents

Civil Revision No. 27 of 1998 and Civil Miscellaneous Application No. 171 of 1999, decided on 7th December, 2000.

(a) Civil Procedure Code (V of 1908)---

----S. 115---Revision---Restoration of revision dismissed for nonprosecution---Counter-affidavit, non-filing of---Revision was dismissed in absence of the applicant on the ground that the Advocate appearing on his behalf, remained absent---Respondent opposed the application for restoration but filed no counter-affidavit to controvert the pleas raised by the applicant--Dismissal order was set aside and the revision was restored in circumstances.

(b) West Pakistan Civil Courts Ordinance (II of 1962)---

----S. 9---Civil Procedure Code (V of 1908), O.VII, R.10---Pecuniary limits of jurisdiction of Civil Courts---Decision of the matter beyond pecuniary jurisdiction---Validity---Where Trial Court had come to the conclusion that the suit was wrongly filed before the Court as the same was beyond its pecuniary jurisdiction, the Court should have returned the plaint under O.VII, R.10, C.P.C. to the applicant for its presentation before the competent Court having pecuniary jurisdiction in the matter rather than to dismiss the same---Suit was dismissed by the Court on merits which had no jurisdiction in the matter---Lower Appellate Court had rightly observed that the Trial Court should have returned the plaint---Judgment passed by the Lower Appellate Court did not suffer from any illegality or infirmity---High Court refused to interfere.

Applicant in person.

Mian Abdul Salam Arain for Respondent No. 1.

MLD 2001 KARACHI HIGH COURT SINDH 1159 #

2001 M L D 1159

[Karachi]

Before Muhammad Ashraf Leghari, J

GHOUS BUX‑‑‑Applicant

versus

MUHAMMAD SULEMAN and others‑‑‑Respondents

Civil Revision No. 82 and Civil Miscellaneous Application No. 607 of 1999, decided on 15th January, 2000.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VII, R.11‑‑‑Plaint, rejection of‑‑‑Admitted facts, consideration of‑‑Agreement to sell was made the basis of the suit‑‑‑Agreement appeared to be not genuine and the prayer in the suit seemed to be an afterthought‑‑Validity‑‑‑Where, the alleged sale agreement was introduced at a late stage and the facts which were apparent on the surface of record, prima facie, appeared to be contumacious on the part of plaintiff, it would be futile to proceed with such type of frivolous suit any more‑‑‑Such type of litigation be discouraged and buried at its initial stage‑‑‑Admitted facts, though not expressly stated in the plaint could be considered while determining the question of rejection of plaint‑‑‑Plaint filed by the plaintiff was rejected under O. 7, R.11, C.P.C. in circumstances.

Mian. Muhammad Latif v. Province of West Pakistan through Deputy Commissioner, Khairpur and another PLD 1970 SC 180 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VII, R.11‑‑‑Plaint, rejection of ‑‑‑Suo motu power of Court‑‑-Validity‑‑‑Plaint can be rejected suo motu at any stage of the proceedings, even by Appellate Court or Revisional Court.

‑‑‑‑O. VII, R.11‑‑‑Plaint, rejection of‑‑‑Relief not possible to be granted‑‑Effect‑‑‑Where the suit was meritless and ultimately it was not possible to grant relief sought or no fruitful result thereof was expected to come out, provisions of O.VII, R.11, C.P.C. would come into play.

Mian Muhammad Akram and others v. Muhammad Shafi 1989 CLC 15 and Diamond Rubber Mills v. Pakistan Television Corporation Ltd. and 2 others 1989 CLC 1989 ref.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VII, R.11‑‑‑Plaint, rejection of‑‑‑Inherent powers of the Courts‑‑Scope‑‑‑Where the matter does not come within the scope of O.VII, R.11, C.P.C., the Court can reject the plaint if finds that the suit is impliedly barred bylaw.

Burmah Eastern Ltd. v. Burmah Eastern Employees; Union and others PLD 1967 Dacca 190 ref.

(e) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VII, R.11‑‑‑Plaint, rejection of ‑‑‑Estoppel‑‑‑Where the suit is hit by law of estoppel, the suit can be rejected.

(f) Estoppel‑‑‑

‑‑‑‑Where the plaintiff did not claim to be the owner of property on the basis of agreement in earlier round of litigation, the principle of estoppel would operate against him in subsequent litigation.

(g) Jurisprudence‑‑‑

‑‑‑ Law is dynamic and it always keeps on developing.

Abdul Naeem for Applicant.

A.M. Mobeen Khan for Respondent No. 12.

MLD 2001 KARACHI HIGH COURT SINDH 1166 #

2001 M L D 1166

[Karachi]

Before Ghulam Rabbani and Faiz Muhammad Qureshi, JJ

HABIBULLAH KHAN‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.1118. of 2000, decided on 7th November, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Control of Narcotic Substances .Act (XXV of 1997), Ss.6, 7, 8, 9, 14 & .15‑‑‑Bail, grant of‑‑‑Application for quashing of proceedings earlier filed by the accused had already been dismissed by High Court‑‑‑Accused was alleged to be on suspect list of Anti‑Drug Force of U.S.A. ‑‑‑Recorded conversation between the accused and other culprit who was hauled up in U.S.A. pointed out that the accused had supplied 1.5 kgs. heroin to the culprit and the same was recovered from the culprit‑‑‑Accused, in circumstances, was not entitled to grant of bail.

1999 SCMR 2147; 2000 PCr.LJ 1317; 2000 PCr.LJ 740; Criminal Bail Application No.492 of 2000; 1998 SCMR 454 and Habibullah Khan v. The State 2000 PCr.LJ 1898 ref.

Muhammad Qadir Khan for Applicant.

Shoaib M. Ashraf, Special Public Prosecutor for the State.

Date of hearing: 7th November, 2000.

MLD 2001 KARACHI HIGH COURT SINDH 1176 #

2001 M L D 1176

[Karachi].

Before Fait Muhammad Qureshi, J

SALEEMUDDIN‑‑‑Appellant

versus

Mst. BIBI JAN‑‑‑Respondent

First Rent Appeal No. 63 of 1999, decided on 25th January, 2001.

Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 15‑‑‑Ejectment of tenant‑‑‑Bona fide personal need of landlady‑‑'Pagri' was received by the landlady from the tenant‑‑‑Landlady was also in possession of other shops and one of the shops was let out just before the filing of the ejectment petition ‑‑‑Ejectment ordered by the Rent Controller‑‑Validity‑‑‑Object of the landlady was nothing but to get increased the rent from the tenant and the same was borne out from the record and the evidence‑‑‑Where the landlady had not come out for personal bona fide use for her son with clean hands and the need of the landlady was not appearing bona fide, no case for personal bona fide need was made out by the landlady‑‑‑Order of ejectment passed by Rent Controller was set aside in circumstances.

1985 CLC 562; 1989 CLC 241; 1990 CLC 1320; 1991 MLD 651, 1992 MLD 1685; 1997 CLC 1531; 1999 CLC 1273; 1994 SCMR 1900: 2000 CLC 90; 2000 CLC 1314; 1986 SCMR 594; 1999 MLD 2989; 1999 CLC 454; 1999 CLC 266 rel.

1996 SCMR 1178; 1992 MLD 1225; 2000 CLC 1756; 2000 CLC 230 and 2000 CLC 997 ref.

Abdul Hameed Bhopali for Appellant.

Zahid Hussain for Respondent.

Date of hearing: 25th January, 2001.

MLD 2001 KARACHI HIGH COURT SINDH 1183 #

2001 M L D 1183

[Karachi]

Before S.A. Rabbani, J

MUHAMMAD HUSSAIN ‑‑‑Appellant

versus

Messrs ADAMJEE SHEIKH JEEVANJEE and another‑‑‑Respondents

First Rent Appeal No. 566 of 1999, decided on 18th August, 2600.

(a) Sindh Rented Prenuses Ordinance (XVII of 1979)‑‑‑

‑‑‑‑Ss. 2(f), 15(2)(iii)(a), (iv) &, (vii)‑‑‑ "Landlord", definition of‑‑‑Rent collector whether landlord ‑‑‑Ejectment application, maintainability of‑‑‑Rent collector, who was not owner of the premises, filed ejectment application on the ground of personal bona. fide need, including grounds of subletting and impairing value and utility of premises‑‑‑Default in payment of rent was not made the ground of ejectment in the application‑‑‑Competency of ejectment application‑‑‑ "Landlord" as defined in 5.2(f) of the Ordinance also includes a person who is for the time being authorised to receive rent of the premises‑‑‑Such person can also take legal steps in case of default in payment of rent by the tenant‑‑‑Applications for ejectment having been filed by rent collector on ground of personal need and such ground having not been included in the powers allocated to rent collector in the definition of landlord, same was incompetent.

(b) Interpretation of statutes‑‑‑

‑‑‑ Definition given in a provision of law‑‑‑Scope‑‑‑Definition whether exhaustive or "inexhaustive"‑‑‑Test‑‑‑Guiding words‑‑‑" Means" and "includes"‑‑‑Effect of use of such words‑‑Where Legislature intends to give a definition exhaustive meaning, the word "means" is used‑‑‑Where intention is to give inexhaustive meaning the word "includes" is used.

‑‑‑‑S. 2(f)‑‑‑Rent collector‑‑‑Powers and functions of rent collector‑‑‑Rent collector is landlord for the limited purpose of collecting rent and is empowered to take necessary legal steps in case of default in payment of rent by tenant‑‑‑Rent collector, however, cannot file application for ejectment on ground of personal need.

(d) Words and phrases‑‑‑

‑‑‑‑ Words "includes" and "means "‑‑‑Distinctive features stated.

(e) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XLI, R.23‑‑‑Remand of case‑‑‑Duty of Trial Court‑‑‑Principle‑‑‑In all appealable cases Trial Court should decide all issues to avoid remand‑‑‑All the cases decided on preliminary issues, however, need not be remanded.

Muhammad Ismail and another v. Sh. Muhammad Munawar 1984 SCMR 27 and M.ian Muhammad Saeed v. Muhammad Mansoor Ali Khan and others 1991 SCMR 1209 ref.

M.S. Shahzad for Appellant.

Rehanul Hassan Farooqui for Respondents.

Date of hearing: 8th August, 2000.

MLD 2001 KARACHI HIGH COURT SINDH 1189 #

2001 M L D 1189

[Karachi]

Before Faiz Muhammad Qureshi, J

FARAZ alias SHAHZEB‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1328 of 2000, decided on 1st December, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.392‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)‑‑‑Bail, grant of‑‑‑Case against the accused was of snatching car and other articles‑‑‑Accused who was already involved in two other crimes, his role in the case was very heinous‑‑‑Charge against the accused had been framed by the Trial Court; two witnesses had been examined against him and five witnesses were yet to be examined‑‑‑Taking into consideration, the role played by the accused, he was not entitled to the grant of bail even on the statutory ground of delay in trial.

Rizwan Hussain v. The State 1999 SCMR 131 ref.

Ali Ahmed Bangash for Applicant.

Ismail Memon for the State.

Date of hearing: 1st December, 2000,

MLD 2001 KARACHI HIGH COURT SINDH 1192 #

2001 M L D 1192

[Karachi]

Before Hamid Ali Mirza, J

H. AKBAR ALI & CO. (PVT.) LTD. ‑‑‑Appellant

versus

YOUSUF ALI and others‑‑‑Respondents

First Rent Appeals Nos.483 and 581 of 1993 and Civil Miscellaneous Applications Nos. 1244 of 1998 and 626 of 1997, decided on 7th February, 2000.

(a) Sindh Rented Premises Ordinance (XVH of 1979)‑‑‑

‑‑‑‑S.15(2)(vii)‑‑‑Bona fide personal need of landlord‑‑‑Landlords seeking ejectment of tenant on ground of personal bona fide need had proved by sufficient evidence on record that they required the shop to start their own business‑‑‑Testimony of landlords which stood corroborated, remained unshaken‑‑‑Nothing was brought on record by the tenant to show that landlords were in occupation of any other suitable shop of their own for running the business‑‑‑Mere fact that ejectment of another shop from another tenant was sought for one of the landlords, would not disentitle the other landlords to claim ejectment for establishment of their own business separately for their livelihood‑‑‑Insufficient funds for running the intended business would not negate the entitlement of landlords to seek possession of premises on the ground of personal‑ requirement if same had been proved to be in good faith‑‑‑Landlords by producing sufficient evidence on record had succeeded in proving their personal requirement in good faith and their testimony, had not been disproved through reliable and satisfactory evidence by the tenant‑‑‑Rent Controller, had rightly ordered ejectment of tenant on ground of bona fide personal requirement of landlords‑‑‑Landlords, however, having failed to prove ground of sub‑letting, were not entitled to claim ejectment of tenant on such ground.

Mst. Sarwari Begum v. Ata‑ur‑Rehman 1997 CLC 1500; Messrs Paramount Hosiery Mills Limited, Karachi v. Syed Mustafa Hyder PLD 1984 Kar. 143; Haji Muhammad Ibrahim v. Hamzood Khan PLD 1987 Kar. 520; Altaf Ahmad Khan v. Dr. Muhammad Naseer Akhtar 1991 CLC 1861; Mukhtar Ahmad v. Muhammad Saleem Bakhshi 1991 CLC 1047; Khawaja Imran Ahmad v. Noor Ahmad and another 1992 SCMR 1152; Qamaruddin through Legal Heirs v. Hakim Mahmood Khan 1988 SCMR 819; Miss Zafar Fatima Aizvi v. Syed Saleem Raza 1993 CLC 270; National Development Finance Corporation v. Shaikh Naseem‑ud‑Din PLD 1997 SC 564; Muhamamd Saeed v. Akhtar Ahmad and another 1999 MLD 1945 and Late Mahboob Saghri through Representatives v. Mst. Zubeda Begum 1999 MLD 2070 ref.

(b) Sindh Rented Premises Ordinance (XVH of 1979)‑‑‑

‑‑‑‑Ss. 15(2)(vii) & 21(3)‑‑‑Additional evidence production of‑‑‑Rent Controller was not asked for additional evidence to be adduced and said additional evidence was also not required by Appellate Court so as to pronounce the judgment‑‑‑No case for adducing additional evidence had been made out in circumstances‑‑‑Additional evidence could not be permitted so as to allow to fill in the gaps left by the tenants in their evidence before Rent Controller‑‑‑Application for adducing additional evidence was dismissed, in circumstances.

Mumaz Ahmad Shaikh for Appellant.

Badrudduja Khan for Respondents.

Date of hearing: 7th February, 2000.

MLD 2001 KARACHI HIGH COURT SINDH 1200 #

2001 M L D 1200

[Karachi]

Before Abdul Ghani Sheikh, J

ABDUL MAJEED‑‑‑Appellant

versus

THE STATE and another‑‑‑Respondents

Criminal Acquittal Appeal No. 85 of 2000, decided on 18th October, 2000.

(a) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 245(1) & 417‑‑‑Penal Code (XLV of 1860), Ss.427/452‑‑‑Appeal against acquittal‑‑‑Civil litigation was going on between the parties‑‑Complainant earlier filed a civil suit against the respondent and then lodged F.I.R. against ‑the respondent (accused) and others after seeking direction from the High Court in Constitutional petition which F.I.R. was cancelled by the police‑‑‑Complainant after the cancellation of F.I.R. filed direct complaint against respondent (accused) only‑‑‑Trend of the appellant/complainant had shown that he had been changing his version from one after the other‑‑‑No nexus was found between the facts mentioned by the appellant/complainant in his earlier F.I.R. and the direct complaint‑‑‑Alleged incident took place in thickly‑populated area, but no independent witness from the locality was examined despite many persons had gathered at the place of incident‑‑‑Witnesses examined by the appellant/complainant were his employees who could not be supposed to depose against their master, the appellant‑‑‑Absence of independent witnesses had given a bona fide presumption that case against the respondent (accused) was false‑‑Appellant/complainant had admitted in cross ‑examination that at the time of incident he was not present‑‑‑Said admission by the appellant had demolished his entire case‑‑‑Respondent (accused), in circumstances, was rightly acquitted by the Trial Court.

1997 MLD 1148; 2000 SCMR 727; 1992 SCMR 1047 and 1992 SCMR 96 ref.

(b) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 353 & 354‑‑‑Recording and appreciation of evidence‑‑‑If good and independent evidence was, available and the same was not produced for corroboration, the recording of sentence on the evidence of related witnesses or employees of complainant would not be safe.

Mehmood A. Qureshi for Appellant.

Arshad Lodhi, Asstt. A.‑G. for the State.

Mazharul Islam for Respondent No.2.

Date of hearing: 18th October, 2000.

MLD 2001 KARACHI HIGH COURT SINDH 1206 #

2001 M L D 1206

[Karachi]

Before Muhammad Moosa Leghari, J

MUHAMMAD JAVED‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No.387 of 2000, decided on 13th October, 2000.

(a) Criminal trial‑‑‑

‑‑‑‑Adjournment‑‑‑Practice of seeking frequent adjournments by the counsel which caused inordinate delay was deprecated‑‑‑Professional pre‑occupation of a counsel being not always a sufficient ground for adjournment, accused could not be penalized for the absence of his counsel for any reason.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 132 & 133‑‑‑Criminal trial‑‑‑Cross‑examination, nature of‑ ‑‑Crossexamination was the "great legal engine" ever invented for the discovery of truth‑‑‑Opportunity to cross‑examine a witness contemplated by the law must be real, fair and reasonable‑‑‑Cross‑examination was not an empty formality, but a valuable right and best method for ascertaining the truth‑‑‑Person who was not trained in legal procedure, was not expected to cross‑examine the prosecution witness in absence of his Advocate‑‑‑Accused though did not cross‑examine the prosecution witnesses, yet cross‑examination by the accused himself was not a substitute of cross‑examination by the counsel.

Altaf Hussain Shamim v. State PLD 1992 Kar. 91 and Nusrat v. The State 1997 MLD 1358 ref.

‑‑‑‑Principe‑‑‑Importance of expeditious disposal of case, no doubt could not be undermined but a perceptible difference exists between the speed and haste and a balance was to be struck between the two well‑known maxims that "justice delayed is justice denied" and "justice hurried is justice buried."

(d) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 561‑A‑‑‑Inherent powers of High Court‑‑‑Provisions contained in S.561‑A, Cr.P.C. were meant to secure the ends of justice and High Court was competent to invoke the powers under S.561‑A, Cr.P.C. in the appropriate cases in order to advance the cause of justice.

Agha Zafir Ali for Applicant.

Muhammad Qasim Mirjat, A.A.‑G. for the State.

Date of hearing: 13th October, 2000.

MLD 2001 KARACHI HIGH COURT SINDH 1209 #

2001 M L D 1209

[Karachi]

Before S. Ahmed Sarwana, J

FOUR SQUARE ENTERPRISES‑‑‑Plaintiff

versus

KARACHI BUILDINGS CONTROL AUTHORITY‑‑‑Defendant

Suit No.877 and Civil Miscellaneous Applications Nos.6468 and 561.6 of 1997, decided on 17th January, 2000.

(a) Specific Relief Act (I of 1877)‑‑‑

‑‑‑Ss. 42 & 54‑‑‑Civil Procedure Code (V of 1908), S.80‑‑‑Sindh Buildings Control Ordinance (V of 1979), S.20‑A‑‑‑Karachi Development Authority Order (5 of 1957), Art: 131‑‑‑Cantonments Act (II of 1924), S.273(i)‑‑‑Suit for declaration and perpetual injunction‑‑‑Notice to the Authority‑‑Requirement of notice was mandatory and the suit would be barred for want of notice under Art. 131 of Karachi Development Authority Order, 1957‑‑Wording of S.20‑A of Sindh Buildings Control Ordinance, 1979 being in essence similar to wordings of unamended S.80, C.P.C S.273(i) of the Cantonments Act, 1924 and Art. 131 (i) of Karachi Development Authority Order, 1957 which had provided issuance of notice, no suit could be filed against Karachi Buildings Control Authority except after expiration of sixty days' written notice had been delivered to or left at the office of the Authority.

PLD 1976 SC 785; PLD 1992 Kar. 71; PLD 1995 Kar. 399; 1998 MLD 1771; 1985 SCMR 24; 1987 CLC 13; 1993 CLC 349; Government of the Province of Bombay v. Pestonji Ardeshir Wadia and others AIR 1949 PC 143; Muhammad Ilyas Hussain v. Cantonment Board, Rawalpindi PLD 1976 SC 785; Zainab Hajiani v. Al‑Hilal Cooperative Housing Society and 2 others PLD 1978 Kar. 848; Pakistan Railways v. Karachi Development Authority and 5 others PLD 1992 Kar. 71; Zia‑ur‑Rehman Alvi v. Allahabad Cooperative Housing Society Ltd. and 2 others PLD 1995 Kar. 399; Syed Azhar Imam Razvi v. Mst. Salina Khatoon 1985 SCMR 24; Muhammad Bux v. Karim Bux 1987 CLC 13 and Syed Monawar Ali v. Tariq 1993 CLC 349 ref.

(b) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 42 & 54‑-‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑‑Suit for declaration and perpetual injunction‑‑‑Rejection of plaint‑‑‑Plaintiff had come to the Court with unclean hands and had no cause of action against defendant‑‑-Plaint was rejected with special costs, in circumstances.

M. Aziz Malik for Plaintiff.

Naimur Rehman for Defendant.

Dates of hearing: 9th and 23rd September, 1999.

MLD 2001 KARACHI HIGH COURT SINDH 1217 #

2001 M L D 1217

[Karachi]

Before S.A. Rabbani, J

Syed KHURSHEED HYDER ZAIDI‑‑‑Appellant

versus

LATIF AHMED ‑‑‑Respondent

First Rent Appeal No. 525 of 2000, decided on 18th August, 2000.

Sindh Rented Premises Ordinance (XV1U of 1979)‑‑‑

‑‑‑‑Ss. 15(2)(ii) & 16(1)(2)‑‑‑Default in payment of rent‑‑‑Non‑compliance of tentative rent order‑‑‑Rent Controller directed tenant to deposit arrears of rent within fifteen days, but tenant deposited the same on the 16th day of the order of Rent Controller‑‑‑Defence of tenant was struck off for noncompliance of tentative rent order‑‑‑Validity‑‑‑Despite the fact that the act of depositing the arrears of rent was a bit beyond fifteen days' time, said deposit of rent was under S.16(1) of Sindh Rented Premises Ordinance, 1979‑‑‑Wording of subsection (2) of S.16 of the Ordinance which dealt with striking off defence, had itself ignored such technicalities‑‑‑Tenant having deposited arrears of rent in pursuance of order passed by the Rent Controller under S.16(1) of Sindh Rented Premises Ordinance, 1979, his defence could not be struck off‑‑‑Order of Rent Controller was set aside in circumstances.

Ghulam Muhammad Khan Lundkhor v. Safdar Ali PLD 1967 SC 530; Javaid Iqbal v. Rana Muzaffar Khan 1976 SCMR 229; Mushtaq Hussain v. Muhammad Shafi 1979 SCMR 496; Zia Ullah Shah v. Syed Riaz Ahmed 1981 SCMR 538; Zafar Qureshi and others v. Kh. Maqsoodul Hassan and others 1982 SCMR 392; M. Nazir v. S. Shaukat Ali 1982 SCMR 985; Akhtar Jehan Begun and others v. Muhammad Azam Khan PLD 1983 SC 1; Mst. Anees Manzar Kazmi v. Mst. Amir Jehan Begum 1989 SCMR 235; Mst. Akhtari Begum v. Muhammad Yamin 1988 CLC 2051; Ghulam Yasin v. Bakhshomal PLD 1973 Kar. 228; Nazir Ahmed v. Holaram 1985 CLC 41 and Salahuddin and others v. Additional District Judge, Kohat and others 1989 CLC 1658 ref.

Syed Zaki Muhammad for Appellant.

S. Arif Ali Shah for Respondent.

Date of hearing: 8th August, 2000.

MLD 2001 KARACHI HIGH COURT SINDH 1219 #

2001 M L D 1219

[Karachi]

Before Dr. Ghous Muhammad, J

Mst. ZUBAIDA BAI and others---Appellants

Versus

Mst. KOONCH AMNA --- Respondent

First Rent Appeals Nos.279 and 268 of 1997, decided, on 26th October, 1999.

(a) Sindh Rented Premises Ordinance (XVII of 1979)---

----S.15(2)(ii)---Default in payment of rent---Tenant had contended that landlords having refused to receive rent, same was sent through money order which was refused by them---Nothing was on record to 4how that either landlords had refused to issue receipt or to accept rent---Fact that money orders were sent by tenant on wrong address of landlords was established and no person from the Postal Department had been examined to prove fact of sending money orders to the landlords---Evidence on record having established that the tenant had committed default in payment of rent, Rent Controller had rightly ordered her ejectment on ground of default in payment of rent.

1997 SCMR 2051; 1996 SCMR 1233 and 1992 SCMR 1296 ref.

(b) Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 15(2)(vii)---Bona fide personal need of landlord---Landlord in his application for ejectment and in his affidavit-in-evidence had stated that premises in question was required by him in good faith to start his business of restaurant therein---Tenant in his written statement had admitted that premises in question was being used as a hotel---Such fact had proved suitability of premises for being used for hotel---Statement made in crossexamination by one of the landlords that he was never in hotel business, by itself would not militate against bona fide need of landlord, especially when he denied the suggestion that he did not intend to relet the premises on goodwill---Landlords, in circumstances, had fully proved his bona fide personal need for the premises in question.

PLD 1963 Kar. 465; PLD 1967 Kar. 233; PLD 1981 Kar. 537; 1985 CLC 2111; 1982 SCMR 834: 1990 MLD 792; 1991 MLD 2141; 1993 CLC 270 and 1993 MLD 1823 ref.

S. Ishtiaq Ali for Appellants (in F.R.A. No. 268 of 1997).

Badarud Duja for Respondent (in F.R.A. No. 268 of 1997).

Badarud Duja for Appellants (in F.R.A. No. 279 of 1997).

S. Ishtiaq Ali for Respondent (in F.R.A. No. 279 of 1997).

Date of hearing: 26th October, 1999.

MLD 2001 KARACHI HIGH COURT SINDH 1225 #

2001 M L D 1225

[Karachi]

Before Saiyed Saeed Ashhad, J

HAJI AHMAD---Appellant

versus

MUHAMMAD ILYAS---Respondent

First Rent Appeal No. 390 of 1998, decided on 19th July, 1999.

(a) Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 15(2)(vii)---Bona fide personal need of landlord---Tenant in his aniuavil-in-evinence had stated that landlord already had two shops wherein he carried on business of tailoring and stitching of clothes/garments---Said assertion of tenant had gone unchallenged and unrebutted as no suggestion to the contrary was put to the tenant in his crossrexamination---Contention of landlord that he was carrying on his business in the residential premises which was causing inconvenience and hardship to the other family members, proved to be false---Premises in dispute was situated in a place which was known as "timber/wood market" where except for the work, of sale and cutting of wood no other business could be carried on---Tenant had offered to raise a suitable construction on the first floor of the premises in dispute at his own costs for use of landlord where he could carry on his business of tailoring and stitching, but the landlord had not accepted his offer despite the landlord had admitted in cross-examination that intended business could easily be carried on by him on the first floor---Such refusal had proved lack of bona fides of the landlord---Landlord, in circumstances, had failed to prove that premises in dispute was required by him for his bona fide personal use and his ejectment application on that ground was liable to be rejected.

Messrs F.K. Irani & Company v. Feroza Begum 1996 SCMR 1178; Ishratullah Siddiqui v. Ali Bhai 1996 SCMR 1833; Messrs United Ampex and other v. Fazal Ahmed PLD 1995 Kar. 147; Muhammad Amin v. Mst. Nafeesa Khatoon PLD 1996 Kar. 340 and Khushi Muhammad v. Anwar Begum PLD 1982 Lah. 295 ref.

(b), Qanun-e-Shahadat (10 of 1984)---

----Art. 132---Cross-examination---Where a party had made a specific assertion on oath then in the absence of its being challenged in the crossexamination by the other side, the said statement was to be accepted and would be deemed to carry weight in deciding the issue involved.

Noor Jehan Begum v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 ref.

K.B. Bhutto for Appellant.

Shaikh F.M. Javaid for Respondent.

Date of hearing: 20th May, 1999.

MLD 2001 KARACHI HIGH COURT SINDH 1237 #

2001 M L D 1237

[Karachi]

Before S.A. Rabbani and Faiz Muhammad Qureshi, JJ

FAISAL KHAWAJA---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 1149 of 2000, decided on 24th November, 2000.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 406/420/34---Bail, grant of--Case against the accused entirely rested upon documentary evidence and all the documents were in possession of the prosecution and there was .Q possibility of tampering with said evidence---Involvement of the accused in commission of offence was to be established at the time of trial and in circumstances the basic principle was bail and not jail---Offences against the accused otherwise not falling under the prohibitory clause of S.497(1), Cr.P.C., the accused was entitled to the grant of bail.

1988 PCr.LJ. 2029; 1988 PCr.LJ 1280; PSC 601 (sic); 1971 PCr.LJ 136; PLD 198.3 SC (AJ&K) 8; 1969 SCMR 233; 1983 PCr.LJ 12: 1968 SCMR 1308; 1994 MLD 1694; 1991 PCr.LJ 371; 1985 PCr.LJ 890; Saeed Ahmed v. The State 1995 SCMR 170 and Tariq Bashir and 5 others v-. The State PLD 1995 SC 34 ref.

Yousaf Leghari for Applicant

Habib Ahmed, A.A.-G. for the State.

Sheikh F. M. Javed for the Complainant.

Date of hearing: 24th November, 2000.

MLD 2001 KARACHI HIGH COURT SINDH 1244 #

2001 M L D 1244

[Karachi]

Before Abdul Ghani Sheikh, J

JAN MUHAMMAD---Appellant

versus

THE STATE---Respondent

Criminal Appeal .No.182 of 1999; Miscellaneous Applications Nos. 1235, 1236, 1237 and 945 of 2000, decided on 17th October, 2000.

Criminal Procedure Code (V of 1898)---

----S. 345---Penal Code (XLV of 1860), S.302---Compromise---Parties, during pendency of the appeal, filed application for permission to compromise the matter praying that the parties had patched up outside the Court and all the legal heirs of the deceased had pardoned the accused in the name of Almighty Allah for the better and amicable relations between the parties in future---Offence under S.302, P.P.C. against the accused having been made compoundable by virtue of S.345, Cr.P.C. at the instance of legal heirs of the deceased with the permission of the Court, all the legal heirs of the deceased having admitted the contents of the compromise application and having pardoned the accused, request of parties was accepted and parties were permitted to compromise the matter---Accused was acquitted of the charge and was ordered to be released. [p. 1245] A

1993 PCr.LJ 166 and 1996 MLD 916 ref.

Mehmood A. Qureshi for Appellant.

Sharafat Ali Khan for the State.

Date of hearing: 17th October, 2000.

MLD 2001 KARACHI HIGH COURT SINDH 1248 #

2001 M L D 1248

[Karachi]

Before Muhammad Roshan Essani and

Muhammad Ashraf Leghari, JJ

GOBIND RAM---Applicant

versus

S.H.O., POLICE. STATION and others---Respondents

Criminal Miscellaneous Application No.45 of 2001, decided on 21st February, 2001.

Criminal Procedure Code (V of 1898)---

----Ss. .491 & 497---Penal Code (XLV of 1860); Ss.380/457---Habeas corpus petition---Bail, grant of ---Detenu, accoding to the Police, was arrested as suspect in a crime case under Ss. 380 & 457, P.P.C.---Accused was found detained in the quarter of driver of police station concerned and no entry with regard to the arrest of the detenu.was made in the station diary---Name of the detenu did not appear in the F.I.R. and the report of the S.H.O. to link the detenu with the crime appeared to be afterthought---Court, though ordinarily did not consider the bail plea of any person in proceedings under S.491, Cr.P.C, particularly when said person was involved in a substantive offence, but in view of peculiar facts and circumstances of case which had reflected upon the credibility of Investigating Agency, the bail was granted to the detenu.

Bhajandas Tajwani for Applicant.

Muhammad Bachal Tonyo, Addl. A.-G. for Respondents.

Date of hearing: 21st February, 2001.

MLD 2001 KARACHI HIGH COURT SINDH 1257 #

2001 M L D 1257

[Karachi]

Before Sabihuddin Ahmed and Muhammad Afzal Soomro, JJ

Mst. BUSHRA SADIQ‑‑‑Petitioner

versus

KARACHI DEVELOPMENT AUTHORITY through Director‑General and others‑‑‑Respondents

Constitutional Petition No.D‑1818 of 1999, decided on 21st December, 2000.

(a) Statement‑‑‑

‑‑‑‑ Statement supported by affidavit‑‑‑Acceptance of‑‑‑Statement supported, by an affidavit ought to be accepted unless rebutted by another statement on oath.

(b) Allotment‑‑‑

‑‑‑‑ Allotment of plot through auction‑‑‑Charging of non‑utilization fee‑‑Allottee/auction‑purchaser had purchased plot from the Authority in open auction and allotment order was also issued in favour of allottee after payment of entire sale consideration ‑‑‑Allottee was required to obtain possession of plot within thirty days from the auction, but he could not obtain the same within the said period of thirty days and was asked to pay non‑utilization fee‑‑‑Illegal encroachment had been raised on the plot in question and allottee during thirty days had, written letter to the Authority to remove the encroachment so that the vacant and peaceful possession could be obtained‑‑‑No reply having been given to the allottee she kept on approaching the Authority through various letters, but grievance of allottee was not redressed‑‑‑In reply to a legal notice issued by the allottee to the Authority, it was ordered that as the allottee failed to appear personally before the Authority to get possession of the plot in question, she was liable to pay non‑utilization fee‑‑‑Validity‑‑‑No requirement of law provided a personal visit by the allottee before the Authority‑‑‑Authority which had failed to remove encroachment on the plot, was not entitled to charge any non‑utilization fee from the allottee in circumstances.

Kh. Gharib Nawaz Daccawala for Petitioner.

Syed Jamil Ahmed for Respondents.

Date of hearing: 21st December, 2000.

MLD 2001 KARACHI HIGH COURT SINDH 1263 #

2001 M L D 1263

[Karachi]

Before Deedar Hussain Shah, C. J. and Anwar Zaheer Jamali, J

IBADAT FOUNDATION and another‑‑‑Petitioners

versus

Mr. Justice (R.) AJMAL MIAN, CHANCELLOR, HAMDARD UNIVERSITY, KARACHI‑‑‑Respondent

Writ Petition No. D‑277 of 2000, decided on 1st March, 2000.

Hamdard University Karachi Act, 1991 (VI of 1992)‑‑‑

‑‑‑‑Ss. 3, 8, 9 & 11‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Jurisdiction of Chancellor of the University‑‑Chancellor of the University on receipt of complaint about the Management of the Foundation and Executive Council of the Hamdard University at Islamabad, which was a statutory body established under the Hamdard University Karachi Act, 1991 exercising his powers under S.9(1) of Hamdard University Karachi Act, 1991 and also in conformity with the agreement arrived at between the University and the Islamabad Campus appointed a person for visitation and inquiry into the matters of the University at Islamabad‑‑‑Said appointed person after his visitation at the Campus at Islamabad submitted his report mentioning serious financial administrative and academic violations and also indicated disloyalty of the University at Islamabad towards the University‑‑‑Chancellor of the University on receipt of said report, issued show‑cause notice and after conducting further proceedings, revoked the agreement after affording the University at Islamabad opportunity of hearing‑‑‑Validity‑‑‑Order of the Chancellor of the University was passed in the best interest of the University and its students which was challenged on the ground that the order had been incompetently passed as the Chancellor had no jurisdiction to pass that order‑‑‑Contention was repelled in view of the fact that Chancellor under the provisions of S.8(5) of Hamdard University Karachi Act, 1991 had jurisdiction to pass said order‑‑‑Even otherwise under c1.15 of the Agreement, Chancellor had full authority to revoke the agreement after providing opportunity of hearing to the Management of Islamabad Campus which had admittedly been provided to the petitioners before passing the order‑‑‑Order passed by Chancellor not only was just, equitable and fair, but also interest of the students already studying had been properly safeguarded‑‑‑Order in question related to the internal affairs of an educational institution‑‑‑Order of Chancellor competently passed could not be challenged in Constitutional petition before High Court.

1987 All ER 834 and 1988 All ER 1004 ref.

Muhammad Akram Shaikh, Muzharul Haque and Hashim Padhiar for Petitioners.

S.M. Zaffar, Abdi S. Zuberi and Ejaz Ahmad for Respondents.

Date of hearing: 1st March, 2000

MLD 2001 KARACHI HIGH COURT SINDH 1281 #

2001 M L D 1281

[Karachi]

Before Wahid Bux Brohi, J

ABDUL WAHAB‑‑‑Appellant

versus

THE STATE ‑‑‑Respondent

Criminal Appeal No.15 of 2000, decided on 3rd November, 2000.

(a) Penal Code (XLV of 1860.)‑‑‑

‑‑‑‑S.412‑‑‑Appreciation of evidence‑‑‑Evidence on record was confined only to the point of recovery of vehicle in question from the accused and there was no evidence to establish beyond doubt that vehicle recovered from the accused was snatched/stolen or retained by the accused after the commission of offence of decoity/robbery‑‑‑No evidence was on record to show that vehicle belonged to a particular person and the vehicle was not produced in the Trial Court‑‑‑Prosecution was bound to furnish positive evidence to show that the vehicles was stolen or that its possession was transferred by commission of decoity or robbery etc., which was not done‑‑‑Conviction and sentence awarded to the accused by the Trial Court were set aside giving the accused benefit of doubt.

(b) Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S.529‑‑‑Irregularity in proceedings‑‑‑Vitiation of trial‑‑‑Irregularity arising in consequence of an error in formulating points for determination, would not by itself vitiate the trial if all the ingredients of the offence were otherwise thoroughly taken into account and evidence was discussed and appraised considering different aspects.

Mehmood A. Qureshi for Appellant.

Muhammad Ismail Memon, Asstt. A.‑G. for the State.

Date of hearing: 3rd November, 2000.

MLD 2001 KARACHI HIGH COURT SINDH 1295 #

2001 M L D 1295

[Karachi]

Before Rasheed Ahmed Razvi, J

Haji HASNAIN‑‑‑Petitioner

versus

SENIOR SUPERINTENDENT OF POLICE, JACOBABAD and 8 others‑‑‑Respondents

Criminal Miscellaneous Application No.14 of 1995, decided on 12th June, 1995.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 491, 110 & 561‑A‑‑‑West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S.3(1)‑‑‑Sindh Crimes Control Act (IV of 1975), S.14‑‑‑Habeas corpus petition ‑‑‑Detenu was arrested in the blind F.I.R. without having any material against him in the F.I.R. to connect him in any offence ‑‑‑Detenu since his first arrest was kept in different police stations from time to time‑‑‑Station House Officer concerned stated that the detenu was no more required in any other crime/case except in the case of F.I.R. in which the Court had already observed that detention of the detenu in the case was illegal and mala fide ‑‑‑Detenu was directed to be set at liberty upon furnishing personal bond.

Muhammad Siddique v. Province of Sindh PLD 1992 Kar. 358; Master Abdul Rasheed v. S.M.L.A., Rawalpindi PLD 1980 Lah. 356 and Raja Zar Khan v. Registrar, Cooperative Society, Muzaffarabd and another 1989 PCr. LJ 218 ref.

Roshan Ali Solangi for Petitioner.

Abdul Fateh Mughal for Respondents.

Date of hearing: 12th June, 1995.

MLD 2001 KARACHI HIGH COURT SINDH 1317 #

2001 M L D 1317

[Karachi]

Before Mushtaq A. Memon, J

NATIONAL BANK OF PAKISTAN‑‑‑Plaintiff

versus

AL‑ASIF SUGAR MILLS LIMITE4 and others‑‑‑Defendants

Suit No. 475 of 1999, decided on 22nd December, 1999.

(a) Practice and procedure‑‑‑

‑‑‑‑Things required to be done in a particular per are prohibited to be performed in any other manner.

(b) Banking Companies (Recovery of Logy, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑Ss. 9, 10 & 15‑‑‑Suit for recovery of loan‑‑‑Recalling the demand finance‑‑‑Plaintiff‑Bank could not have recalled the demand finance unless there was default on the part of defendant/borrower in deposit of instalments agreed between the parties‑‑‑Defendants having not committed default in payment of instalments at any stage, claim of plaintiff‑Bank, was premature‑‑‑Proceedings under the law, could be maintained for recovery of amount which was already due and the factum of its becoming due pendente lite, was immaterial.

Nazir Ahmed v. King‑Emperor AIR 1936 PC 253; Reference No.1 of 1988 by President of Pakistan PLD 1989 SC 75; Sahib and 3 others v. The State 1990 MLD 1161 and Syed Ali Azhar Naqvi v. The Government of Pakistan PLIS 1994 Kar. 67 ref.

‑‑‑‑S. 9‑‑‑Suit for recovery of loan‑‑‑Mark‑up on loan‑‑‑Legality of plaintiff Bank's claim for mark‑up on mark‑up and mark‑up on undisbursed amount was not free from doubt.

Muhammad Mosa Khan Leghari for plaintiff.

M. Saleem Thepdawala for Defendants Nos. 1 and 8 to 11.

Sajjad Ali Shah for Defendants Nos.2 to 7.

MLD 2001 KARACHI HIGH COURT SINDH 1332 #

2001 M L D 1332

[Karachi]

Before Mushtaq A. Memon, J

UNITED BANK LIMITED‑‑‑Plaintiff

versus

Mian AFTAB AHMED and others‑‑‑Defendants

Suit No.1999 of 1995, decided on 12th November, 1998.

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑Ss. 9 & 17‑‑‑Suit for recovery of amount‑‑‑Banking documents‑‑Plaintiff‑Bank after agreed date, could not claim further mark‑up on the basis of blank documents filled by the Bank unauthorizedly.

(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 17‑‑‑Banking documents‑‑‑Blank documents enjoyed some immunity by virtue of S.17 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 but obligation to fill up the documents reasonably and in terms of the authority, could not be evaded.

‑‑‑‑Ss. 9 & 10‑‑‑Suit for recovery of amount‑‑‑Leave to defend suit‑‑‑In absence of any serious or bona fide dispute, grant of leave to defend the suit would not be warranted.

(d) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 130‑‑‑Revocation of guarantee‑‑‑Resignation from directorship could not absolve a guarantor from the liabilities undertaken under a guarantee unless the guarantee itself was revoked in terms of S.130 of Contract Act, 1872.

UBL Shahryar Textile Mill's case 1996 CLC 106 and HBL v. Cargo Despatch Co. Ltd. and others. 1987 CLC 1002 ref.

Ms. Sofia Saeed Karachiwala for Plaintiff.

Nemo for Defendants Nos. 1, 3 and 4.

Muhammad Saleem Thepdawala for Defendant No.2.

MLD 2001 KARACHI HIGH COURT SINDH 1351 #

2001 M L D 1351

[Karachi]

Before Anwar Mansoor Khan, J

HABIB BANK---Plaintiff

versus

Messrs QAYYUM SPINNING LTD. ---Defendants

Suit No. 1812 of 1999 and Civil Miscellaneous Applications Nos. 1356 and 1357 of 2000, decided on 23rd February, 2001.

(a) Banking Companies Ordinance (LVII of 1962)---

----Ss.41 & 42---BCD Circular No.13, dated 20-6-1984---BCD Circular No.32, dated 26-11-1984---Introduction of Circulars by the State Bank of Pakistan---Object and scope- --Circulars required the shifting of the then banking system based or. 'Interest' into banking based on Islamic mode of financing---Concept of BCD Circular No.13, dated 20-6-1984 was that the same was for the purpose of Islamisation of Banks which was part of the global change in Pakistan for Islamisation of the economy in generality--BCD Circular No. 13, thus, came into existence to place the Banks in line for their transformation.

(b) Banking Companies Ordinance (LVII of 1962)---

----Ss.41 & 42---BCD Circular No. 13, dated 20-6-1984---Introduction of the Circulars by State Bank of Pakistan---Islamisation of Banking System in Pakistan---Commencement of transitional period---Judgment by Supreme Court in case of Dr. M. Aslam Khaki reported as PLD 2000 SC 225--Applicability---Laws by which the Banking business was to be conducted was set moving from the year, 1962, and a concrete law was enforced from 1-1-1985---BCD Circular No. 13, dated 20-6-1984, had stated the transitional period given to the Banks for the purpose of transition from old system of banking into the Islamic System of Banking---Contention that the judgment by the Supreme Court in case of Dr. M. Aslam Khaki would be operative from the date mentioned in it as regards the banking transition was repelled.

Dr. M. Aslam Khaki,v. Syed Muhammad Hashim PLD 2000 SC 225 ref.

----Ss.41 & 42---BCD Circular No.13, dated 20-6-1984---BCD Circular No.32, dated 26-11-1984---Islanusation of banking system---Constitution of Shariat Board---Object and purpose ---Shariat Board was to arrange for exchange of information for the evaluation of the practice and for providing guidance of successfully managing the Islamic economy---Islamic economy is in its totality the economy of the country and laws in respect of, not only the banking but also in other aspects which included interest being charged by other institutions, payment to various Banks and other, such-like transformation---Supreme Court in its judgment in the case of Dr. M. Aslam Khaki PLD 2000 SC 225 had given period of transformation.

Dr. M. Aslam Khaki v. Syed Muhammad Hashim PLD 2000 SC 225 ref.

(d) Banking Companies Ordinance (LVII of 1962)---

----Ss.41 & 42---BCD Circular No.13, dated 20-6-1984---BCD Circular No.32, dated 26-11-1984---Islamisation of economy---Judgment by Supreme Court in case of Dr. M. Aslam Khaki reported as PLD 2000 SC 225---Effect of the judgment on BCD Circular No. 13, dated 20-6-1984 and BCD Circular No.32, dated 26-11-1984---Supreme Court in the judgment gave various aspects of law for transformation and for that purpose specific time had beer given---Circulars Nos.13 & 32 which were in force since 1-1-1985, were valid legislation and continued to remain in force.

Dr. M. Aslam Khaki v. Syed Muhammad Hashim PLD 2000 SC 225 ref.

(e) Constitution of Pakistan (1973)---

----Arts.227 & 230---BCD Circular No. 13, dated 20-6-1984---BCD Circular No.32, dated 26-11-1984---Islamisation of laws---Council of Islamic Ideology---Recommendations of---Circulars Nos.13 & 32 were introduced upon the recommendations of the Council of Islamic Ideology for bringing the existing laws into conformity with the injunctions of Islam---Both the circulars were the consequence bf the reports of the Council provided for the furtherance of Islamic financing where mark-up on mark-up had been stated to be un-Islamic and usurious---Riba was disallowed and because of such disallowance the Circulars were in line with the arguments put forward for the purposes of Islamic financing.

Commissioner Income-tax, Peshawar Zone v. Simen A.G. PLD 1991 SC 368; Kaneez Fatima v. Wali Muhammad PLD 1993 SC 901; Maple Leaf Cement Factory Limited v. Collector of Excise and Sales Tax 1993 MLD 1645 and Pakistan v. Public-at-Large PLD 1986 SC 240 ref.

(f) Constitution of Pakistan (1973)---

----Art. 2A---Expression 'Injunctions of Islam' in Art.2A of the Constitution---Scope---Expression 'Injunctions of Islam' has not been left to the discretion of the Courts and notions of the individuals but the same has been clearly spelt out, as only those Injunctions which have been laid down by the Holy Quran and the Sunnah of the Prophet (p.b.u.h.)---Under the Injunctions of Islam no such act of violating the Injunctions will be permissible which does not pay attention to the text of the Holy Quran and the Sunnah and its interpretation together with its 'Khamir' and 'Zamir'.

Dr. M. Aslam Khaki v.Syed Muhammad Hashim PLD 2000 SC 225 ref.

(g) Banking Companies Ordinance (LVII of 1962)---

----Ss.41 & 42---BCD Circular No.13, dated 20-6-1984---BCD Circular No.32, dated 26-11-1984---Constitution of Pakistan (1973), Art. 230--Islamisation of banking system---Issuance of BCD Circular No.13, dated 20-6-1984 and BCD Circular No.32, dated 26-11-1984---Issuance of Circular by the State Bank of Pakistan---Scope---Council of Islamic Ideology had proposed and Federal Government and State Bank of Pakistan by acting on that proposal had given direction to the Banks to finance under the mode prescribed which was confirmed by Federal Shariat Court and eventually approved by the Shariat Appellate Bench of Supreme Court -in the case of Dr. M. Aslam Khaki.

Dr. M. Aslam Khaki v. Syed Muhammad Hashim PLD 2000 SC 225 and Dr. Mehmoodur Rehman Faisal and others v. The Secretary, Ministry of Law, Justice and Parliamentary Affairs, Government PLD 1992 FSC 1 ref.

(h) Banking Companies Ordinance (LVII of 1962)---

--Ss.41 & 42---BCD Circular No. 13, dated 20-6-1984---Islamisation of banking system---Introduction of Islamic Financing---State Bank of Pakistan and all others were duly connected and were party in the transformation of the Banks by the introduction of the Islamic Financing to be governed by BCD Circular No.13, dated 20-6-1984---Circular provided the 'Modes of Transaction' which were categorically mentioned wherefore the whole system commenced.

(i) Islamic Jurisprudence---

---- Riba--- Concept---Riba in its every form is forbidden and the increase or decrease of the rate of interest does not affect the same being otherwise.

Dr. Mehmoodur Rehman Faisal and others v. The Secretary, Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan PLD 1992 FSC 1 ref.

(j) Islamic Jurisprudence-

---- Financing in Islam---Interest (Riba) free economy---Effect on general public---Attitudes are changing gradually and in the last few years value neutral conventional banking has begun to trouble the conscience of an increasing number of people---Reluctance is seen to hand over the funds to Banks and financial institutions that invest in companies engaged in unethical and socially harmful activities---Emerging Islamic banking scene has succeeded in achieving general acceptance.

Islamic Finance: A Euromoney Publication, 1997 ref.

(k) Islamic Jurisprudence---

---- Financing in Islam---Interest (Riba) free banking---Salient features--Islamic banking is an instrument for the development of an Islamic economic order---Islamic financial system employs the concept of participation in the enterprise, utilising the funds at risk on a profit and loss sharing basis which by no means implies that investments with financial institutions are necessarily speculative---Such system can be excluded by careful investment policy, diversification of risk and prudent management by Islamic financial institutions---Investment in Islamic financial institutions can provide potential profit in proportion to the risk assumed to satisfy the differing demands of participants on the contemporary environment and within the guidelines of the Shariah---Concept of profit and loss sharing, as a basis of financial transactions is a progressive one as it distinguishes good performance from the bad and the mediocre---Said concept, therefore, encourages better resource management---Islamic Banks are structured to retain a clearly differentiated status between shareholder's capital and client's deposits in order to ensure correct profit sharing according to-Islamic Law--Some of the salient features of the order summed up.

Following are the few salient features of Islamic Economic Order:--

(1) While permitting the individual the right to seek his economic well being, Islam makes a clear distinction between what is Halal (lawful) and what is Harram (forbidden) in pursuit of such economic activity. In broad terms, Islam forbids all forms of economic activity, which are morally or socially injurious.

(2) While acknowledging the individual's right to ownership of wealth legitimately acquired, Islam makes it obligatory on the individual to spend his wealth judiciously and not to hoard it, keep it idle or to squander it.

(3) While allowing, an individual to retain any surplus wealth, Islam seeks to reduce the margin of the surplus for the well-being of the community as a whole, in particular and destitute and deprived sections of society by participation in the process of Zakat.

(4) While making allowance for the ways of human nature and yet not yielding to the consequences of its worst propensities, Islam seeks to prevent the accumulation of wealth in a few hands to the detriment of society as a whole, by its laws of inheritance.

(5) Viewed as a whole, the economic system envisaged by Islam aims at social justice without inhibiting individual enterprise beyond the point where it becomes not only collectively injurious but also individually self-destructive.

(l) Islamic Jurisprudence---

---- Riba An-Nasee'a---Explained.

(m) Islamic Jurisprudence-

---- Riba Al-Fadhl---Explained.

(n) Islamic Jurisprudence-

Loan---Concept---Loans is not a business transaction but is a form of ' Sadaqa' or charitable transaction and the money returned must be the same as the money given.

(o) Banking Companies Ordinance (LVII of 1962)---

----Ss.41 & 42---BCD Circular No.13, dated 20-6-1984---BCD Circular No.32, dated 26-11-1984---Islamisation of Banking System---BCD Circular No.13 dated-6-1984 and BCD Circular No32, dated 26-11-1984--Effect---While issuing the circulars complete conscious effort was put in by the Government which included the bankers, to bring about the transformation in the existing system in the banks for shifting to the Islamic modes of financing.

(p) Banking Companies Ordinance (LVII of 1962)---

----Ss. 41 & 42---BCD Circular No.13, dated 20-6-1984, Annex-I--Islamisation of Banking system---Forms of transaction allowed by BCD Circular No.13, dated 20-6-1984---Annexure I to BCD Circular No.13, dated 20-6-1984, had provided three basic forms of transactions which were allowed viz. the first being, 'Financing by Lending', from the title it was clear that though, otherwise in the usual parlance 'financing' and 'lending' would have in fact meant the same, but when 'financing' was used with 'lending' saying, that there was lending `which would mean that there was a 'loan' given to finance some person---Word 'finance' will have to be given a separate meaning and was to be treated to be 'lending' simpliciter--'Lending' were loans i.e. the delivery of money to another person---Money, therefore, being a 'debt' created by way of Mending, question would arise whether such debt created by lending could attract a levy of further sums on elapse of time for re-payment as would be done under the normal banking system on any money lent which would carry interest---Under BCD Circular No. 13 categorically stipulated, that, where there was a 'lending' the 'debt' so created by giving 'money' to another person or financing to other person by way of lending, the Banks under Cl. A(i) to Annex. I, to BCD Circular No. 13, dated 20-6-1984, were only allowed to recover 'Service Charges' which were not to exceed the proportionate costs of operation and as such the Circular had forbidden interest or mark-up on loans.

(q) Banking Companies Ordinance (LVII of 1962)---

----Ss.41 & 42---BCD Circular No.13, dated 20-6-1981, Annex. I--Islamisation of Banking System---Restrictions imposed by BCD Circular No. 13, dated 20-6-1984, Annex. Y'--Financing in modern world---Practice and procedure---Service charges, extent of---Money, in the modern world is obtained from various sources, which involve cost---If such cost is taken into account, and if that money which is lent, the usual course is that the bankers charge interest, which carries its own spread alongwith the cost of funding and provision of bad and doubtful debt, to arrive at a rate of interest that, till such time the money is repaid, the debtor continues to pay an additional sum for utilising the money---Such practice has categorically been restricted by Annex.I of the BCD Circular No.13, dated 20-6-1984--Judgment by Supreme Court in case of Dr. M. Aslam Khaki PLD 2000 SC 225 only reaffirms the same and categorically states that nothing can be added for the purposes of utilisation of 'money'---BCD Circular No. 13, dated 20-6-1984, has prohibited the Banks to charge, except for the service charges, any other amount on a debt, to the extent that the cost of obtaining funds by the lending agency and provisions by such lender of his bad debt and charging interest has categorically been done away with---Service charges are only the cost of the actual Banks operation and the maximum of which was to be determined by the State Bank of Pakistan from time to time as such the same has shown the importance that has been attached to the fact that no 'increase' or 'addition' by elapse of time can be made on a 'debt' or 'loan' i.e. 'on money lent'.

Dr. M. Aslam Khaki v. Syed Muhammad Hashim PLD 2000 SC 225 ref.

(r) Islamic Jurisprudence---

----Qard-i-Hasana--- Meaning---Qard-i-Hasana is a loan given on compassionate ground, free from 'interest', 'mark-up' or 'service charges' and re-payable, 'if' and 'when' the borrower is able to pay.

(s) Constitution of Pakistan (1973)---

----Arts. 227 & 230---BCD Circular No.13, dated 20-6-1984---Mode of financing dealt with, in BCD Circular No.13, dated 20-6-1984---Money whether goods or commodity---Trade Related Modes of Financing ---Scope--Various modes have been provided, one of which is, purchase of goods by Banks and their sale to the clients at an appropriate mark-up in price for deferred payment and same is the most utilised manner of 'financing'---Term 'loan' or 'lending' is missing in such type of mode of financing and it is 'financing' that is being used---'Financing' is not 'lending' it is a form of business activity, which has been termed in the title as 'Trading', thus, the finance earned by trading, cannot be termed as a 'loan' of money--Permissible mode allows purchase of 'goods' or various commodities by Banks as such the 'purchase' never means purchase of 'money' and the same amounts to 'lending money' which is not allowed by the BCD Circular No.13, dated 20-6-1984, and even if allowed, no addition can be made to it---Money is not 'goods' or 'commodity' that has to be purchased---'Money' under the provisions of Cl. B(i) of Annex. I of BCD Circular No. 13, dated 20-6-1984 is neither 'goods' nor 'commodity'---Banks are allowed to sell goods that are required by their clients and it is the 'sale price' of such 'goods' that is the financing.

(t) Banking Companies Ordinance (LVII of 1962)---

----Ss.41 & 42---BCD Circular No. 13, dated 20-6-1984---Mark-up on mark-up, charging of---Judgment by Supreme Court in case titled Dr. M. Aslam Khaki reported as PLD 2000 SC 225---Effect---Permissible mode of financing by sale and purchase cannot carry any mark-up on mark-up and the same is not allowed even in the event of default --BCD Circular No.13, dated 20-6-1984, and the judgment of Supreme Court provide the same end result---Practice of keeping mark-up in a separate account and principal in a separate account and charging mark-up on the principal and not on the markup is not contemplated by the BCD Circular No.13, dated 20-6-1984---Once the principal debt is determined, the debt becomes finance by lending and no mark-up, by whatever name called, can be charged---If one were to presume that such mark-up on the mark-up cannot be charged, but can be charged on the principal money lent, the outcome would in fact be the same.

(u) Interpretation of statutes---

----Bypassing existing law---No one can circumvent the law, no one can be allowed to act otherwise than what is provided by law---If a thing has to be done in a specific manner, it has to be done in that manner alone and none else---No one can be allowed in the name of their own profitability to cause the existing law to be bypassed, avoided or interpreted, or usage or customs to be developed which are contrary to an existing unequivocal and exact law.

Mian Muhammad Nawaz Sharif v. The President of Pakistan PLD 1993 SC 473; Banque Indosuez v. Banking Tribunal for Sindh and Balochistan and others 1994 CLC 2272; Mst. Aisan v. Manager, Agricultural Development Bank of Pakistan, Chunian 2001 CLC 57 and Muhammad Ramzan v. Citibank N.A. 2001 CLC 158 ref.

(v) Words and phrases---

---- Interest (as in financing)---Defined---Interest is an increase on money by elapse of time i.e. that a sum that is continued to be paid till such time the debt remains in place at a certain rate and for utilisation of monies that may have been given to another person.

(w) Banking Companies Ordinance (LVII of 1962)---

----Ss.41 & 42---BCD Circular No.13, dated 20-6-1984---BCD Circular No.32, dated 26-11-1984---Distinction---Only thing that para. 4, Cl. (3), of BCD Circular No. 32, dated 26-11-1984, changes is in C1.3 of BCD Circular No.13, dated 20-6-1984, which gives the date of 1-4-1985, to be a cut off date for financing to individual, whereas such date has been modified to 1-1-1985 in para. 4, Cl. 4 of Circular No.32.

(x) Interpretation of statutes---

---- Provisions of statute, understanding of---Entire clause has to be read for the purpose of understanding the provision of statute.

(y) Banking Companies Ordinance (LVII of 1962)---

----Ss.41 & 42---BCD Circular No.13, dated 20-6-1984---BCD Circular No.32, dated 26-11-1984---Contract Act (IX of 1872), Ss.23 & 62--Islamisation of economy ---Riba---Contract against public policy ---Novation of contract---Renewal of contract of debt by addition of mark-up---Charging mark-up on mark-up---BCD- Circular No. 13, dated 20-6-1984 and BCD Circular No.32, dated 26-11-1984---Effect---Subsequent agreement whereby there is a settlement of previous debt or is renewal thereof, amounts to defeating the provisions of the specific law available, and thus, same would not be the novation but an independent agreement contemplating an actual sale and purchase which is entered only for renewing the previous debt and shall be a void agreement---Such renewal of the contract is window dressing and all profits shown are nothing but added mark-up---Mark-up cannot be allowed to be added to an 'existing debt', as there can be no agreement between the parties in respect of that 'specific debt' except that there can be enlargement of time and that too without increase in the debt payable---No one can be allowed to play a fraud on the existing law by trying to avert the existence of such law that prescribes that mark-up on mark-up cannot be charged---Act of entering into a future transaction admittedly is in respect of renewal of financing and does not contain any aspect of actual disbursement or payment---Such contracts are contracts that are against the public policy--Effect of BCD Circular No. 13, dated 20-6-1984, and BCD Circular No. 32, dated 26-11-1984, is that where a default has been made the Bank was required to take legal steps ---Co-relation has been developed between not charging mark-up and proceeding to recover money instead---Mark-up cannot be added for the renewal of debt---Taking additional amount on the debt in Riba which is prohibited.

E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536; Sardar Ali v. Muhammad Ali PLD 1988 SC 287; Bank of Oman Limited v. East Trading Company PLD 1987 Kar 404; Habib Bank Limited v. Muhammad Hussain PLD 1987 Kar. 612; Muhammad Bachal Memon v. Government of Sindh PLD 1987 Kar. 296; Aijaz Haroon v. Inam Durrani PLD 1989 Kar. 304; Habib Bank Limited v. Messrs Farooq Comport Fertiliser Corporation Limited and 4 others 1993 MLD 1571; United Bank Limited v. Ch. Ghulam Hussain 1998 CLC 816; United Bank Limited v. Central Cotton Mills Limited 2001 MLD 78 and Banque Indosuez v. Banking Tribunal for Sindh and Balochistan and others 1994 CLC 2272 ref.

(z) Banking Companies Ordinance (LVII of 1962)---

----Ss.41 & 42---SBP Circular No. BID(Gen)2470/601-04-90 & BID Circular No.3, dated 20-2-1989---Reschedule or restructure of financial obligations--Guidelines to Banks---Nowhere in the Circulars has it been stated that an additional mark-up can be charged on a debt for extending the time for payment, it is the mark-up that has already been charged for the purposes of arriving at marked up price which is allowed to be capitalised--Capitalisation only brings it in the line of the accounting system---Such was advised through the circulars to the Banks only for their accounting purposes and nothing else.

(aa) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---

----S. 9---Contract Act (IX of 1872), Ss.23 & 62---Void agreement---Suit for recovery of Bank loan---Charging of mark-up on mark-up ---Novation of contract---Contract against public policy---Entering into new contract including the amount of mark-up--Validity-Subsequent agreements do not change the previous agreements, there-is no mention or reference of the previous agreement---Only document shown is a sanction advice which is an internal document of the Bank---Document could be seen only to what was approved by the Bank---Agreement overrides all arrangements---Sanction advice, in the presence of the agreement, vis-a-vis the customer cannot be construed to the disadvantage to the customer---Agreement is the document signed by both parties the contents of which have to be seen---Banks have been restrained from adopting any measures or practice whereby they; either artificially or temporarily show an ostensibly improved position of the Bank account---Addition of mark-up is added towards the assets of the Bank which gives an ostensibly improved position of the Bank accounts and the same cannot be allowed---What cannot be done directly cannot be done indirectly and any contract which is of such nature that if permitted would defeat the provisions of any law or which is contrary to public policy is avoid agreement---Where mark-up is capitalised and added to the principal amount (principal means the sale price) and having arrived at the re-purchase price, any increase by way of renewal, capitalisation, booking on accrual basis or by any means will be nothing but addition of mark-up on mark-up---Bank can only seek recovery of the marked up price under the first agreement---If, however, the batik is able to establish the fact that the amount has been actually disbursed under the subsequent agreement and it is not for the purpose of adjustment of the previous debts and that there has been a de facto sale and purchase in commodity, in that situation all agreements that may have been entered into for such purposes and independent of the previous agreements, can be looked into and money is recoverable there against.

Dr. M. Aslam Khaki v. Syed Muhammad Hashim PLD 2000 SC 225; Hashwani Hotels Limited v. Federation of Pakistan PLD 1997 SC 315; Mian Muhammad Nawaz Sharif v. The President of Pakistan PLD 1993 SC 473; United Bank Limited v. Central Cotton Mills Limited 2001 MLD 78; PLD 1962 Kar. 334; AIR 1943 PC 147; 1994 CLC 2272; 2000 CLC 1602; PLD 1964 SC 337; PLD 1983 Kar. 176; Moudood Ahmed Farooqui v. Ameen Fabrics PLD 1983 Kar. 176 and Al-Quran (2:280) ref.

(bb) Contract Act (IX of 1872)---

----S. 23---Expression 'public policy'---Concept---Scope.

(cc) Contract Act (IX of 1872)---

----S. 171---Lien---Provisions of S.171 of Contract Act, 1872--Applicability---Lied can only be exercised on a credit in the account of Bank to set off a liability and not by additional credit to set off previous debt--Debit is not a credit of a customer and where it is not a credit of the customer, provisions of S.171 of the Contract Act, 1872, are not applicable.

(dd) Sale of Goods Act (III of 1930)---

----S.4(4)---'Agreement to sell' becoming a 'sale'---Conditions to be fulfilled---Transfer of property in the goods which is the principal element of sale was a condition to be fulfilled.

Wafaq-i-Pakistan v. Awamun Nas 1988 SCMR 2041 and Pakistan v. Public at Large PLD 1986 SC 240 ref.

(ee) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---

----S.9---Sale of Goods Act (III of 1930), S.4---Recovery of Bank loan--Rescheduling of finance agreement---Inclusion of mark-up in principal amount---Validity---Sale only accrues when conunodity is transferred to the purchaser or consideration thereof has been paid---Agreement which is a subsequent one does not have the ingredients of a sale and at the best can be treated an ' agreement to sell', such agreement can possibly be specifically enforced whereby, the purchaser may seek direction against the seller upon payment of actual consideration to sell his property, but if not so done re-purchase price mentioned in the subsequent agreement cannot be taken to be a debt payable by the purchaser---Agreements made subsequently with an aim to avoid and defeat the provisions of law of not charging of mark-up on mark-up is void.

Dr. M. Aslam Khaki v. Syed Muhammad Hashim PLD 2000 SC. 225 and Moudood Ahmed Farooqui v. Ameen Fabrics PLD 1983 Kai. 176 ref.

(ff) Contract Act (IX of 1872)---

--S. 23---Contract out of law---Scope---Parties cannot contract out of the provisions of Act.

Waman Shriniwas Kim v. Ratilal Bhagwandas & Co. AIR 1959 SC 689 and Anayat Ali Shah v. Anwar Hussain 1995 MLD 1714 ref.

(gg) Constitution of Pakistan (1973)---

---Arts. 189, 203-D, 203-F & 203-GG ---Decisions of Supreme Court and Federal Shariat Court---Effect---Decision of Supreme Court is binding on High Courts under the provisions of Art. 189 of the Constitution, whereas the order of Federal Shariat Court is also binding under Art. 203-GG subject to Arts. 203-D & 203-F of the Constitution.

(hh) Banking Companies Ordinance (LVII of 1962)---

----Ss.41 & 42---BCD Circular No.13, dated 20-6-1984---BCD Circular No.32, dated 26-11-1984---Banking system---Effect on---BCD Circular No.13, dated 20-6-1984 and BCD Circular No.32, dated 26-11-1984, changed the entire law, its perspective and modes and methods of banking, converting them into trade related modes---Loans were only treated to be given without any mark-up and increase except for service charges.

(ii) Interpretation of statutes---

---- Law declared ultra vires---Effect---Where a law has been declared to be ultra vires, such declaration acts prospectively and not retrospectively.

(jj) Interpretation of statutes---

---- Law declared intra vires---Effect---Where a law has been declared to be intra vires, it is only the interpretation of the specified law that has to be taken into account---Present judgment cannot be said to act prospectively.

(kk) Interpretation of statutes---

---- Vacuum left in a law---Where vacuum in law is left by statutory silence, the prevailing mode having full Constitutional support would be for the application of Islamic Common Law.

Muhammad Bashir v. The State PLD 1982 SC 139 and Fazal Ghafoor v. Chairman, Tribunal Land Disputes 1993 SCMR 1073 ref.

(ll) Islamic Jurisprudence---

---- Islamic Financing System---'Bai Muajjal' and 'Murabaha' transaction--Concept---Such transaction is that the Bank having purchased as re-sold the commodity at a higher price to the customer and at such a point the customer is not required to pay the sale consideration but what is required of him to do so within the specified period at an agreed re-purchase---Consideration for the sale of the commodity by the Bank to the seller cannot be adjusted against this re-purchase price, as it is Bai Muajjal the payment is deferred--Consideration for the re-sale by the Bank to the customer is a contract between the two and such becomes a debt---Such debt is, therefore, only liable to be paid by the customer---No question of revolving facility would arise as it is the amount that is available with the customer being 'the sale consideration of the sale made to the Bank.

(mm) Islamic Jurisprudence-

Riba---Concept---Any increase or difference in the value thereof is usurious and comes within the definition of 'Ribs'.

Sahih Muslim, Book 9, No.3795 by Abdullah ibn Abu Qatadah; Sahih Muslim, Book 8, No.3849 by Uthman ibn Affan; Sahih Muslim, Book 9, No.3854 by Abu Sa'id Al Khudi and Sahih Muslim, Book 9, No. 3856 by Abu Hurayrah ref.

(nn) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---

----S.10---Leave to defend the suit, grant of---Bona fide dispute---Charging mark-up on mark-up---Judgment by Supreme Court in case titled Dr. M. Aslam Khaki reported as PLD 2000 SC 225---Effect---Where the Bank had changed mark-up on mark-up from the defendant, such was genuine and a fide dispute---Leave to defend the suit was granted in circumstances.

Hamza I. Ali for Plaintiff.

Ghulam Mustafa Lakho for Defendants Nos. 1 to 8.

Afzal Siddiqui for Defendants Nos.9 to 15.

Munir A. Malik: Amicus curiae.

Ejaz Ahmed: Amicus curiae.

Azizur Rehman: Amicus curiae.

Dates of hearing: 10th November, 2000; 17th and 25th January, 2001.

MLD 2001 KARACHI HIGH COURT SINDH 1444 #

2001 M L D 1444

[Karachi]

Before Rasheed Ahmed Razvi, J

GOVERNMENT OF PAKISTAN, MANPOWER DIVISION, MINISTRY OF

LABOUR through Director‑General, of National Training Bureau, Islamabad‑‑‑Plaintiff

versus

ADAMJEE INSURANCE CO. LTD‑‑‑Defendant

Civil Suit No. 91 of 1989, decided on 6th December, 1999.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 14, 16, 20 & 23‑‑‑Conclusion of proceedings and giving award by the arbitrat6t‑‑‑Limitation‑‑‑Arbitration were required to conclude the proceedings and to give award within 120 days after entering upon the reference‑‑‑In case of any delay, arbitrators `were required to obtain extension of time frond the Court.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VII, R.2 & O.XXXIX, Rr. 2, 3‑‑‑Arbitration Act (X of 1940), Ss.20 & 21‑‑‑Suit for recovery of amount‑‑‑Ad interim injunction‑‑‑Reference to arbitrator‑‑‑Plaintiff with consent of parties as per ad interim injunction was restrained from raising demand for encashment of the Performance Bond and Mobilisation Bond pending disposal of the suit‑‑‑Suit was subsequently disposed of and the matter was referred to two arbitrators‑‑‑Nothing was said about the ad interim injunction passed in the suit in reference proceedings before the arbitrators‑‑‑No prohibitory injunction, in circumstances, was in the field restraining the plaintiff to raise demand for encashment of the Bonds.

Edward Owen Engineering Ltd. v. Barclays Bank International Ltd. and others (1978) 1 All ER 976; Texmaco Ltd. v. State Bank of India and others AIR 1979 Cal. 44; Jamia Industries Ltd. v. Pak Refinery PLD 1976 Kar. 644; National Construction Company v. Aiwan-e‑Iqbal PLD 1994 SC 311; Messrs Trapore & Co. v. M.S. V/0 Tractor Export, Mascow AIR 1970 SC 891; McDonald Construction v. Pakistan Services Ltd. 1983 SCMR 2252; Pakistan Engineering Consultants v. P.I.A. 1989 SCMR 370; Zeenat Brothers (Pvt.) Ltd. v. Aiwan‑e‑Iqbal Authority and others PLD 1996 Kar: 183; Platinium Insurance Company Ltd. v. Daewoo Corporation, Sheikhupura PLD 1999 SC 1; Kargil International's case (1996) 4 All ER 563; (1998) 2 All ER 406; Transocan Asia Ltd. v. Rice Export Corporation of Pakistan 1999 MLD 1600; Province of West Pakistan v. Messrs Mistri Patel & Co. and another PLD 1969 SC 80; Syed Sibte Raza and another v. Habib Bank PLD 1971 SC 743; Messrs Aslam Saeed & Co. v. Messrs Trading Corporation of Pakistan Ltd. PLD 1985 SC 69 ref.

‑‑‑‑O.VII, R.2‑‑‑Suit for recovery of amount‑‑‑Plaintiff had claimed that as a result of the acts of defendants/original contractors in deserting' the construction project and as a result of re‑awarding of the contract to the other contractor, the plaintiff had suffered loss‑‑‑During cross‑examination witness of the plaintiff was not able to disclose as to when the contract of the project was awarded after the original contractor had abandoned the same‑‑‑No copy of contract entered between the plaintiff and subsequent contractor was placed on record and it was not shown as to how much amount was agreed between the plaintiff and the subsequent contractor‑‑‑No substantial documents were placed on record to show that the project in question was successfully completed by the subsequent conractor which resulted in payment of excess amount over and above the agreed contract money with original contractor‑‑‑Plaintiff, in circumstances, was not entitled for the whole amount as accepted by the defendant in the total of all the four Performance Bonds‑‑‑Suit was decreed to the extent with costs for the amount of Mobilisation advance, and against the Performance Bond with specified interest accordingly.

Samiuddin Sami for Plaintiff.

Jamil Khan for Defendant.

Dates of hearing: 22nd September and 23rd November, 1999.

MLD 2001 KARACHI HIGH COURT SINDH 1456 #

2001 M L D 1456

[Karachi]

Before Abdul Hameed Dogar, J

MUHAMMAD BACHAL‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

To. 120 of 1993, decided on 18th August, 1998.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 409‑‑‑Prevention of Corruption Act (II of 1947), S.5‑A‑‑‑Federal Investigation Agency Act, 1974 (VIII of 1975), S.3(1)‑‑‑Conviction‑‑‑Jurisdictional defects‑‑‑Case had been lodged, investigated and challaned by the Sub‑Inspector who was not competent to do so in view of S.5‑A of the Prevention of Corruption Act, 1947‑‑‑Offences under S.409, P.P.C. under which the accused had been challaned was scheduled offence and was covered by S.3(1) of the Federal Investigation Agency Act, 1974, whereby only Federal Investigation Agency was competent to investigate into such offences‑‑‑Having not been done so, the entire trial stood vitiated and such illegality was not curable under S.537, Cr.P.C.‑‑‑Sanction for prosecution was necessary on the date of commission of the offence which had not been obtained‑‑‑Neither the Auditors who had prepared the report against the accused were examined by the prosecution, nor the Auditors' report was put to the accused in his examination under S.342, Cr.P.C.‑‑‑Accused was acquitted in circumstances.

PLD 1992 SC 72; 1993 PCr.LJ 1391 and 1994 PCr.LJ 111 ref.

M. Ilyas Khan for Appellant.

Ghulam Mustafa Lakho for the State.

Date of hearing: 18th August, 1998.

MLD 2001 KARACHI HIGH COURT SINDH 1462 #

2001 M L D 1462

[Karachi]

Before Mushtaq Ahmed Memon, J

KARACHI CATHOLIC COOPERATIVE HOUSING SOCIETY LTD. ‑‑‑Petitioner

Versus

CHRISOL MIRANDA and others‑‑‑Respondents

Civil Miscellaneous Application No. 9476, 7779 and 7780 of 1998 in, Suit No. 1473 of 1997, decided on 19th October, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.VI, R. 5 & O.XI, R.21‑‑‑Specific Relief Act (I of 1877); Ss.42, 54 & 55‑‑‑Suit for declaration, permanent and mandatory injunction‑‑‑Direction of Court for supply of further and better statement‑‑‑Dismissal of suit for non-compliance of the order‑‑‑Plaintiff having not supplied further and better particulars as per direction of Court, defendant filed application under O.XI, R.21, C.P.C. for dismissal of the suit for non‑compliance of order‑‑‑Penalty postulated in R.21 of O. XI, C.P.C. was attracted upon non‑compliance with specific categories of orders and said categories could not be expanded and the penal consequences contemplated under the rule could not be applied to the categories which did not find mention therein‑‑‑Direction of Court for providing further and better particulars was not covered by the provisions of O.XI, R.21, C.P.C.‑‑‑Plaintiff, was directed to furnish further and better particulars within specified period.

Sarada Charan Seal and another v. Jagabandhu Mahahan and others PLD 1953 Dacca 42; Abdul Razik v. Messrs Pfizer Laboratories Limited 1988 CLC 778; Messrs United Bank Limited v. Yousuf Haji Noor Muhammad Dhadi 1988 SCMR 82; Messrs Dewan Metheram Dharmdas Trust v. Shiri Mahant Bani Balpuri and others 1992 CLC 975; H.C. Bevan Petman and another v. Province of Punjab and others PLD 1954 Lah. 516; Messrs Pan Century Edible Oils SDN BHD v. Messrs Fatima Enterprises Limited 1999 MLD 3193 and Hussain Ali Merchant v. Ismailia Garden Cooperative Housing Society 1999 CLC 356 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VI, R. 5, O. VIII, R. 10, & O. XI, R. 21‑‑‑Failure to furnish particulars‑‑‑Consequence‑‑‑Where plaintiff failed to furnish further and better particulars the plaint could be rejected whereas in the event of defendant failing to provide further and better particulars his right of defence could be forfeited.

‑‑‑‑S. 11‑‑‑Principles of res judicata‑‑‑Applicability‑‑‑Principle of res judicata would be applicable to miscellaneous application filed in a pending suit when similar applications in the same terms were already dismissed.

R.F. Virjee for Plaintiff.

S. Samie Ahmed for Defendants Nos. 1 and 2.

MLD 2001 KARACHI HIGH COURT SINDH 1469 #

2001 M L D 1469

[Karachi]

Before Ata‑ur‑Rehman and Ghulam Rabbani, JJ

Mrs. AZRA MANSOOR and others‑Plaintiffs

Versus

Mst. ZULAKHA BAI and others‑‑Defendants

Civil Miscellaneous Application No. 11374 in Suit No.1581 of 1998, decided on 6th July, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.VII, R.11‑‑‑Specific Relief Act (I of 1877), Ss‑42, 54 & 55‑‑‑Suit for declaration, permanent and mandatory injunction‑‑‑Application for rejection of plaint‑‑‑Plaint was sought to be rejected on the ground that plaintiffs had no locus standi/cause of action to file suit and that suit was not maintainable under S.42 of Specific Relief Act, 1877‑‑‑Allegations made in plaint and contentions raised by defendant, both on legal and factual plane needed full-fledged enquiry after recording evidence of parties and as such it could not be said that suit was not maintainable.

Sheoparsan Singh v. kamandan Prasad Singh AIR 1916 PC 78; Mrs. Zarina Gauhar v. Province of Sindh and 3 others PLD 1973 Note 1; Shafqatullah Qadri v. University of Karachi PLD 1954 Sindh 107; Al‑Hai Abdur Rehman Bhuiya v. The Commissioner of the Narayanganj PLD 1959 Dacca 515; M.A. Naseer v. Chairman, Pakistan Eastern Railways PLD 1965 SC 83; Alavi Sons Ltd. v. The Government of East Pakistan and others PLD 1968 Kar. 222; M. Farooq Khan v. Sulaman A.G. Panjwani PLD 1977 Kar. 88; Abdul Rehman Mobashir v. Syed Amir Ali Shah and others PLD 1978 Lah. 113; Global Production Limited v. Habib Credit and Exchange Bank Ltd. 1998 CLC 156; Muhammad Harridan Shaikh v. The Chairman. Board of Secondary Education, Karachi PLD 1998 Kar. 59; Ghulam Sarwar Awan v. Government of Sindh PLD 1988 Kar. 414; Moosa Bhunji v. Hashwani Sales and Services Ltd. PLD 1982 Kar. 940; Datari Construction Co. (Pvt.) Ltd. v. A. Razzak Adamjee and others 1995 CLC 846; Ajum Arain, Bhera v. Abdul Rashid and others PLD 1982 SC 308; Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423; Abdul Waheed Butt v. Mrs. Asma and 4 others 1989 CLC 1936; Suleman Mala v. Karachi Building Control Authority 1990 CLC 448 Jewan v. Federation of Pakistan 1994 SCMR 826; Abdul Baqi v. Malik Mitha Khan and others 1990 MLD 1906; Fazlur Rehman v. Younus Ali Gillani 1999 MLD 1565; Krishma Kali ‑Malik v. Babulal Shaw and others AIR 1965 Cal. 148; Nawab Begum v. Dr. M.A. Mahboob and 2 others 1989 CLC 2252; Hasna Hena Akhtari Begum v. Dacca Improvement Trust PLD 1969 Dacca 82; Samar Gul v. Central Government and others PLD 1986 SC 35; (1899) 26 IA 16; (1913) 40 IA 182; Abdul Razzak v. Karachi Building Control Authority PLD 1994 SC 512; Abbasia Cooperative Bank, v. Hakeem Hafiz Muhammad Ghaus PLD 1997 SC 3; Muhammad Ilyas Hussain v. Cantonment Board, Rawalpindi PLD 1976 SC 785; Shahid Mahmood v. Karachi Electric Supply Corporation 1997 CLC 1936; Smt. Thakamna Mathew v. M. Azmatullah Khan 1993 SCMR 2397; Ramaraghawa Reddy v. Seshu Redy AIR 1967 SC 436 and Muhammad Nawaz Khan v. Islam Din 1991 MLD 1523 ref.

(b) Practice and procedure‑‑‑

‑‑‑Law and the findings of the Courts were to be applied on the facts of each case and not otherwise.

Abid Zubair for Plaintiffs.

Muhammad Sharif for Defendants.

MLD 2001 KARACHI HIGH COURT SINDH 1484 #

2001 M L D 1484

[Karachi]

Before Faiz Muhammad Qureshi, J

SAYEEDA KHATOON---Appellant

Versus

MUHAMMAD FAZIL --- Respondent

First Rent Appeal No. 162 of 1993, decided on 7th April, 2001.

Sindh Rented Premises Ordinance (XVII of 1979)---

----Ss. 2(f)(j) & 15(2)(ii), (vii)---Default in payment of rent---Bona fide personal need of landlord---Relationship of landlord---Tenant who denied relationship of landlord and tenant between the parties, had admitted in his cross-examination that applicant had become his landlady---Landlady in her affidavit-in-evidence had detailed default in payment of rent by the tenant--Landlady though subjected to cross-examination, but no concrete and tangible words could be extracted from her to establish that no default had been committed by the tenant---Default in payment of rent by tenant, had been proved, in circumstances---Evidence on record had proved that sick and aged landlady previously was residing alongwith her large family in rented house and at present was residing in a house owned by another lady--Personal bona fide need of landlady in respect of the premises had, thus, been proved.

Shaikh Abdul Majid for Appellant.

Asghar Hussain Akhtar for Respondent.

Date of hearing: 3rd April, 2001.

2001 M L D 1554

[Karachi]

Before Muhammad Mujibullah Siddiqui, J

ABDULLAH ‑‑‑ Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application 406 of 2001, decided on 30th May, 2001. .

(a) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/109/34‑‑‑Bail, grant of‑‑Accused was neither alleged to have been armed with sharp‑cutting weapon nor with a fire‑arm from which bullet could be fired‑‑‑Old enmity existed between the parties and there was conflict between the ocular account and the medical evidence‑‑‑Accused was entitled to grant of bail in circumstances.

Syed Abdul Baqi Shah v. The State 1997 SCMR 32 and Abdul Hayee v. The State 1996 SCMR 555 ref.

(b) Precedent‑‑‑

‑‑‑‑ Nature and scope‑‑‑Essentials to constitute‑‑‑If leave to appeal was refused by Supreme Court, order of refusal would not lay down any principle having the force of precedent‑‑‑Refusal to grant leave had a limited effect indicating that Supreme Court was not persuaded to exercise its discretion and such order would not amount even to confirmation of view of the High Court which was sought to be assailed while seeking. leave to appeal‑‑‑If Supreme Court would decide matter on merits, it would have the force of precedent which was binding on all the subordinate Courts and Tribunals including the High Court.

M. M. Aqil Awan for Applicant.

Habib Ahmed, Addl. A.G. for the State.

MLD 2001 KARACHI HIGH COURT SINDH 1561 #

2001 M L D 1561

[Karachi]

Before Saiyed Saeed Ashhad, CJ

MUHAMMAD ISHAQUE‑‑‑Applicant

Versus

MUHAMMAD NADEEM and another‑‑‑Respondents

Criminal Transfer Application No.36 of 2000, decided on 26th March, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.526‑‑‑Penal Code (XLV of 1860), 5.302‑‑‑Application for transfer of case‑‑‑Date of birth of the accused, determination of‑‑‑Case pending in the Court of IIIrd Additional Sessions Judge was sent to the Court of 1st Additional Sessions Judge on the ground that accused was a juvenile offender and his case was to proceed with the Juvenile Justice System Ordinance, 2000‑‑‑Applicant/complainant had challenged the transfer of case and had prayed for transfer of case from 1st Additional Sessions Judge contending that accused was not a juvenile at the time of commission of the offence‑‑Copies of the birth certificate and certificates issued by the educational institution showing date of birth of the accused were available on record‑‑Where birth certificate and other documents issued by the educational institution giving the date of birth of an accused were available on record then unless such certificates were held to be fraudulent and/or bogus, those were to be relied upon‑‑‑If the applicant/complainant did not feel satisfied with the genuineness and validity of the birth certificate and other certificates issued by the educational institution, he ought to have challenged the same before the Trial Court and filing of transfer application under S.526, Cr.P.C. in High Court was not warranted.

M. Waheed Kazi for Applicant.

Shahadat Awan for Respondent No. l

Habib Ahmed, A.A.‑G. for the State.

Date of hearing: 26th March, 2001

MLD 2001 KARACHI HIGH COURT SINDH 1577 #

2001 M L D 1577

[Karachi]

Before S.A. Rabbani, J

ABDUL HAMEED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 162 of 2000, decided on 30th August, 2000.

----Ss.320 & 331---Accused who was convicted and sentenced to suffer R.I. for ten years and to pay Diyat amount was released on bail on grounds that offence under S.320, P.P.C. was bailable and that release of the accused would practically facilitate the payment of Diyat amount as it would enable him to earn for payment of Diyat amount.

Jawed Haider Kazmi for Appellant.

Sardar Muhammad Ishaque for the Complainant.

Sharafat Ali Khan for the State.

MLD 2001 KARACHI HIGH COURT SINDH 1591 #

2001 M L D 1591

[Karachi]

Before Ghulam Nabi Soomro and Anwar Zaheer Jamali, J.

Dr. KHURSHEED BHUTTO ‑‑‑Petitioner

Versus

CIVIL AVIATION AUTHORITY‑‑‑Respondent

Constitutional Petitions Nos.D‑1111 and 1120 of 2000, decided on 23rd October, 2000.

(a) Central Government Lands and Buildings (Recovery of Possession) Ordinance (LIV of 1965)‑‑‑

‑‑‑‑Ss.10 & 11‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Constitution of Pakistan. (1973), Art. 199‑‑‑Constitutional petition‑‑‑Civil service‑‑Allotment of residential quarter‑‑‑Cancellation of allotment‑‑‑Residential quarters were allotted to the petitioner on payment of monthly rent‑‑Authority cancelled allotment without issuing any show‑cause notice to the petitioners‑‑‑Such cancellation order was challenged by petitioners in Constitutional petitions‑‑‑Maintainability of petition‑‑‑Allotment order specifically showed that allotment of quarters in favour of petitioners was on temporary basis and that petitioners were required to vacate quarters as and when needed by the Authority‑‑‑Authority before taking action against the petitioners/allottees, had issued a notice ‑giving them reasonable time to vacate the quarters and action against the petitioners was taken due to shortage of accommodation for its officials‑‑‑Petitioners being mere temporary allottees of Government accommodations could not claim any vested right in respect thereof in their favour‑‑‑Contention of petitioners that before cancellation of their allotments no show‑cause notice had been served on them and principles of natural justice had been violated, was repelled because the petitioners had no statutory right of hearing before cancellation of their allotments and right of issuance of show‑cause notice before cancellation of allotments was not an absolute right‑‑‑Order cancelling allotments of quarters passed after allowing sufficient time to the petitioners to vacate the quarteru, could not be interfered with by High Court in Constitutional petition which otherwise was not maintainable.

Estate Officer Government of Pakistan v. Syed Tahir Hussain PLD 1962 SC 75; Imtiaz Hussain v. Government of Pakistan 1992 CLC 1122; Dr. Munir Ahmad, M.B.B.S. Medical Officer v. Chairman, House Allotment Committee, Government of Balochistan, Quetta and another 1983 CLC 1783; Director‑General, Pakistan Coast Guards, Karachi v. Mst. Zarina Jamshed 1998 MLD 1879 and Miss Rukhsana Soomro and others v. Board of Intermediate and Secondary Education, Larkana, Sindh and others 2000 MLD 145 ref.

(b) Natural justice, principles of‑‑‑

‑‑‑‑Right of hearing when claimed on the principles of natural justice was not an absolute right, but it depended on the facts and circumstances of each case which would enable a Court to draw proper conclusion in that regard‑‑Distinction existed between the two situations, one where right of hearing was statutory and the other where said right was claimed on the principle of natural justice‑‑‑Where right of hearing was statutory, such right was almost absolute, but when such right was claimed on the principles of natural justice, it was not so and exclusion of such right could be or implied.

Muhammad Aziz Khan for Petitioner (in C. P. No. 1111 of 2000).

Muhammad Nehal Hashmi, Badar Muneer and Muhammad Raft for Petitioner (in C. P. No. 1120 of 2000).

Muhammad Jamil for Respondent.

Syed Zaki Muhammad, Dy. A.‑G. (on Courts Notice).

MLD 2001 KARACHI HIGH COURT SINDH 1599 #

2001 M L D 1599

[Karachi]

Before Faiz Muhammad Qureshi, J

ABDUL KAREEM‑‑‑Appellant

Versus

NOOR BEGUM‑‑‑Respondent

First Rent Appeal No .119 of 1998, decided on 26th March, 2001.

Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑Ss. 15 & 22‑‑‑Execution of ejectment order‑‑‑Dispute over jurisdiction of Rent Controller in the matter‑‑‑Ejectment application having been accepted by the Rent Controller, landlord filed execution application, which was accepted and after issuing writ of possession of premises in favour of landlord, possession was delivered to the landlord in ex parte proceedings against the tenant ‑‑‑Ejectment application was pending before Rent Controller having territorial jurisdiction in the matter, but order of ejectment was passed by another Rent Controller who had no such jurisdiction in the matter‑‑‑Rent Controller having no jurisdiction had not decided ejectment application as a Link Judge/Rent Controller ‑‑‑Ejectment application and execution application had been decided ‑ex parte and evidence on record had proved that tenant was not properly served as notice was sent in the wrong name and place‑‑‑Orders incompetently passed by Rent Controller on ejectment application and execution application were set aside and case was remanded to Rent Controller having jurisdiction in the matter to decide afresh after hearing the parties in accordance with law.

Riaz Kadir Brohi for Appellant.

Abdul Wahab Balouch for Respondent.

Date of hearing: 27th March, 2001.

MLD 2001 KARACHI HIGH COURT SINDH 1612 #

2001 M L D 1612

[Karachi]

Before Faiz Muhammad Qureshi, J

JAN MUHAMMAD ‑‑‑Appellant

Versus

Mst. HANIFA and another‑‑‑Respondents

First Rent Appeal NoA8 of 1994, decided on 31st March, 2001.

Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S.15(2)(ii)(iii)(a)‑‑‑Default in payment of rent and subletting‑‑‑Attorney of landlord in his evidence had fully supported plea of landlord with regard to default in payment of rent of premises by the tenant and subletting of the premises by the tenant‑‑‑Evidence and statement of the attorney had gone unshaken in. the cross‑examination‑‑‑Default in payment of rent and subletting of premises by the tenant having fully been proved, Rent Controller was not justified to dismiss ejectment application filed by the landlord‑‑‑Findings of Rent Controller not based on sound reasoning, were set aside, in circumstances.

K.B. Bhutto for Appellant.

MLD 2001 KARACHI HIGH COURT SINDH 1627 #

2001 M L D 1627

[Karachi]

Before Saiyed Saeed Ashhad, CJ

Messrs ABDUL AZIZ RAMZAN VALLI and others‑‑‑‑Applicants

Versus

HABIB BANK LIMITED‑‑‑‑Respondent

Special Transfer Application No.11 of 2000, decided on 21st December, 2000.

Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance (XXV of 1997)‑‑‑

‑‑‑‑S. 4(2)‑‑‑Transfer of suit‑‑‑Suit filed by Bank against borrowers for recovery of loans and pending in Banking Court had been sought to be transferred to the Court where suit filed by the applicants against the Bank was pending adjudication‑‑‑Issues and the dispute involved in the two rival suits related to the finance facility granted by the Bank in favour of the borrowers the payment of which was got secured by mortgage/pledge/encumbarance of the properties of the borrowers ‑‑‑Subject-matter, the issues and disputes in both the suits being similar and common, it was proper that both suits were proceeded in one and the same Court so as to avoid the possibility of conflicting decisions‑‑‑Suit filed by the Bank was transferred as prayed for by the applicants.

B.M. Bangesh for Applicants.

Abdul Sattar Pingar for Respondent.

MLD 2001 KARACHI HIGH COURT SINDH 1635 #

2001 M L D 1635

[Karachi]

Before Sabihuddin Ahmed and Mushir Alam, JJ

JAMIL AHMED ‑‑‑Petitioner

Versus

KARACHI BUILDING CONTROL AUTHORITY and others‑‑‑Respondents

Constitutional Petition No. D‑1176 of 1999, decided on 16th August, 2000.

(a) Sindh Buildings Control Ordinance (V of 1979)‑‑‑

‑‑‑‑S.6‑‑‑Bona fide purchaser‑‑ ‑Sealing of the premises‑‑‑Plot was reserved only for construction of residential apartments and the owner of the plot got approved building plan for construction of residential apartments, but in violation of the building plan shops were constructed and the Authority sealed the premises on account of violations of approved plan‑‑‑Purchasers of the disputed shops who had entered the possession without obtaining an occupancy certificate could not be treated as bona fide purchasers as they had entered possession in flagrant violation of the requirements of S.6 of Sindh Buildings Control Ordinance, 1979‑‑‑Action of sealing the premises was justified in circumstances.

Muhammad Shams Eran Usmani v. Karachi Building Control Authority and 2 others 1989 CLC 193 and Muhammad Saleem and 5 others v. Administrator, Karachi Matropolitan Corporation and 2 others 1998 CLC 1952 ref.

(b) Karachi Building and Town Planning Regulations, 1979‑‑‑

‑‑‑‑Regln. 13(3)‑‑‑Sanction of application/plan for permission to carry out building works‑‑‑Presumption that if no order was passed on an application for permission to carry out building works within sixty days from its receipt, it should be deemed to have been sanctioned, was subject to the qualification that said application/plan must not contravene the provisions of Regulations, the Master Plan or the Site Development Plan‑‑‑If Master Plan only stipulated construction of residential apartment on the plot in question but the owner had also constructed shops in violation of Master Plan‑‑‑Such revised plan could not be deemed to be approved‑‑‑Provisions of Regln. 13(3) of Karachi Building and Town Planning Regulations, 1979 could be invoked only when the builder had proposed to alter his plan and could not be extended to a situation where violation of law had already been committed and the builder was only attempting to put a cloak of legality on his action in definition of law:

Dasti Muhammad Ibrahim for Petitioners.

Raja Sikandar Khan Yasir for Respondent KBCA.

Ejaz Khattak for the Intervenor.

Date of hearing: 16th August, 2000.

MLD 2001 KARACHI HIGH COURT SINDH 1646 #

2001 M L D 1646

[Karachi]

Before Sabihuddin Ahmed. J

Mrs. AZIZ SAJJAD‑‑‑Plaintiff

Versus

U.B.L. and others‑‑‑Defendants

Civil Suit No.270 and Civil Miscellaneous Application No.3123 of 2000 decided on 20th December, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.VII, R.11‑‑‑Suit for damages‑‑‑Rejection of plaint‑‑‑Plaintiff had created equitable mortgage in respect of shop in question by deposit of title deeds, in favour of defendant‑Bank as collateral security for loan‑‑‑Plaintiff having failed to liquidate the loan, the Bank filed recovery suit before Banking Tribunal which was decreed and mortgaged property was ordered to be sold in order to recover the decretal amount which was furnished by defendant‑‑‑Validity‑‑‑Plaintiff would have no cause of action against defendant who had purchased shop which was sold under orders of the Court‑‑‑Such sale could not be the basis of suit for damages against the Bank and auction‑purchaser of shop.

S. Mussarat Ali for Plaintiff.

Zubair Qureshi and Zamiruddin Ahmed for Defendants.

MLD 2001 KARACHI HIGH COURT SINDH 1662 #

2001 M L D 1662

[Karachi]

Before Kamal Mansur Alam, CJ

MUHAMMAD AHMAD BAIG‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Transfer Application No. 7 of 1999, decided on 3rd March, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 526‑‑‑Transfer of case on ground of territorial jurisdiction of the Court‑‑‑Case pending in the Court of IInd Judicial Magistrate, Karachi East, was sought to be transferred to any other Court of competent jurisdiction in Karachi South on the ground that alleged offence was committed within the jurisdiction of District South‑‑‑Question of jurisdiction should be raised before the concerned Court and filing of transfer application on that ground would not be a proper proceeding, Jawaid Haider Kazmi for Applicant.

MLD 2001 KARACHI HIGH COURT SINDH 1681 #

2001 M L D 1681

[Karachi]

Before Dr. Ghous Muhammad, J

Messrs MERIDIAN CORPORATION (PVT.) LTD. ‑‑‑Appellant

Versus

RIAZ AHMED ‑‑‑Respondent

First Rent Appeal No. 161 of 1997, decided on 12th March, 1998.

Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S. 17(9)‑‑‑Striking off defence‑‑‑Tenant had failed to deposit arrears of rent and future monthly rent according to tentative rent order by the Rent Controller‑‑‑Rent Controller, in circumstances, had rightly struck off defence of the tenant for non‑compliance of tentative rent order.

Habib Bank Limited v. Noor Ahmad 1990 CLC 1170; Messrs Mother Care Nursing and Maternity Home v. Mrs. Syeda Raisa Fatima 1993 MLD 862; Anwar Ahmed v. Muhammad Sharif 1991 MLD 701; Muhammad Yousaf v. Maqbool Ahmad 1985 CLC 2862; Anwar Ahmed v. Muhammad Sharif 1991 MLD 701; Razzak v. Saleem Hudayat and 4 others PLD 1987 Lah. 47; Mrs. Hazarbai Merchant and another v. Muhammad Ismail 1984 SCMR 406; Begum Capt. Mirza Ghulam Sarwar and another v. District Judge, Jhelum and others 1987 SCMR 25; Raja Aurangzeb v. The Additional Rent Controller, Lahore Cantonment and 2 others PLD 1985 SC 876 and 1985 SCMR 876 ref.

Kamaluddin for Appellant.

Iftikhar Javed for Respondent.

Date of hearing: 3rd March, 1998.

MLD 2001 KARACHI HIGH COURT SINDH 1687 #

2001 M L D 1687

[Karachi]

Before Shabbir Ahmed, J

ANWAR KHURSHID‑‑‑Appellant

versus

Mst. RAKHSHANDA TAHIRA‑‑‑Respondent

First Rent Appeal No.417 of 1995, decided on 17th May, 1999.

(a) Sindh Rented Premises Ordinance (XVI1 of 1979)‑‑

‑S.10‑‑‑Deposit of rent‑‑‑Conditions‑‑‑Deposit of rent under S.10 of Sindh Rented Premises Ordinance, 1979, was subject to refusal or avoidance on the part of landlord to accept the rent.

(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑Ss. 10 & 15(2)(ii)‑‑‑Default in payment of rent‑‑‑Original owner of the premises orally gifted away the same to her daughter who became landlady of the premises‑‑‑Rent receipts produced by tenant on record had proved that some rent had been received by the original owner and the attorney of landlady and some receipts were issued by the landlady herself‑‑‑Rent could have been tendered to landlady or her attorney who had been receiving rent, but tenant had tendered rent by money order in the name of original owner despite accepting the donee her daughter as landlady by paying rent to her through rent receipts‑‑‑Tender of rent by money order in the name of the original owner or subsequent deposit in Court would not absolve the tenant of the penal consequences of the default‑‑‑Tenant in circumstances, was rightly held to have committed willful default in payment of rent.

Quraisul Mujtaba Qarni v. S. Usman Ali Kazmi 1992 CLC 211; Parvaiz Akhtar v. Dr. Muhammad Ahsan and others PLD 1988 SC 734 and Shariyar Ali Patandi and others v. Messrs Deccora Furnishers PLD 1985

‑‑‑‑S. 15(2)(vii)‑‑‑Bona fide personal need of landlord‑‑‑Landlady, her husband and two kids were living in a room of her in‑laws' house and she being a medical practitioner was running her clinic in a rented flat‑‑Landlady had every right to live in her own house and run the clinic‑‑‑Rent Controller had rightly found that personal bona fide need of landlady in respect of premises had been established.

Muhammad Abdul Karim v. Muhammad Saleem PLD 1996 SC 252; Muhammad Umar and others v. Dr. Ameena Ashraf 1982 CLC 410 and Abubaker v. Sadaqat Begum PLD 1983 Lah. 320 ref.

M.H. Burney for Appellant.

Mrs. Surraiya Rahim for Respondent.

Date of hearing: 15th April, 1999.

MLD 2001 KARACHI HIGH COURT SINDH 1708 #

2001 M L D 1708

[Karachi]

Before Rasheed Ahmed Razvi J

INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN‑‑‑‑Petitioner'

Versus

BAHAWALPUR BOARD MILLS LTD. and others‑‑‑‑Respondents

Civil Miscellaneous Applications Nos.69, 66 and 68 of 1991, decided on 29th September, 1997.

Industrial Development Bank of Pakistan Ordinance (XXXI of 1961)‑‑‑

‑‑‑‑S.39‑‑‑Companies Ordinance (XLVII of 1984), Ss.290 & 316‑‑‑Recovery proceedings, stay of‑‑‑Winding up proceeding of company commenced much prior to filing of recovery proceedings under S.39 of Industrial Development Bank of Pakistan Ordinance, 1961‑‑‑Provision of S. 316, Companies Ordinance, 1984 had provided that no suit or any other legal proceedings would be proceeded with or commenced against a company for which winding up order had been made or a provisional Manager had been appointed except by leave of the Court and subject to such terms as the said Court would impose‑‑‑Recovery proceedings which fell within the term "other legal proceedings" were liable to be stayed till leave as provided under S.316 of Companies Ordinance, 1984 was allowed.

National Bank of Pakistan v. Banking Tribunal No. l and 11 others PLD 1994 Kar. 358; Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak.) 104 and Choudhry Muhammad Din v. The National Commercial L 2nk Limited, Karachi PLD 1972 Kar. 287 ref.

Saeed A. Sheikh for Petitioner

Naazar Khan, Advocate/Administrator of Messrs Taj Company.

MLD 2001 KARACHI HIGH COURT SINDH 1757 #

2001 M L D 1757

[Karachi]

Before Muhammad Moosa Khan Leghari, J

ALLAUDDIN‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Revision No.72 of 2000, decided on 17th November, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 345‑‑‑Penal Code (XLV of 1860), Ss.308/309/310‑‑‑Compounding of offence‑‑‑Offence punishable under S.308, P.P.C. could be compounded by the legal heirs of the deceased‑‑‑If any of the legal heirs of the deceased was minor the Wali could compound the‑offence and forgo the Diyat amount with the permission of the Court on behalf of the minor.

B. M. Bangash for Applicant.

Sharafat Ali Khan for the State.

MLD 2001 KARACHI HIGH COURT SINDH 1762 #

2001 M L D 1762

[Karachi]

Before Zahid Qurban Alavi and Mushir Alam, JJ

Messrs ALI ENTERPRISES and others‑‑‑Appellants

versus

NATIONAL BANK OF PAKISTAN‑‑‑Respondent

High Court Appeal No.209 of 1999, decided on 19th December, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss.39, 42 & 54‑‑‑Suit for declaration, permanent injunction, recovery of damages etc.‑‑‑Damages‑‑‑Proof of, a pre‑condition‑‑‑Damages claimed by the plaintiff having not been proved, same could not be claimed and the suit would fail.

Saalim Salam Ansari for Appellants.

Tasawar Ali Hashini for Respondent.

MLD 2001 KARACHI HIGH COURT SINDH 1771 #

2001 M L D 1771

[Karachi]

Before Sarmad Jalal Osmani and S.A. Rabbani, JJ

Sheikh RIAZ‑UD‑DIN‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Transfer Application No. 21 of 1999, decided on 27th July, 1999.

Control of Narcotic Substances Act (XXV of 1997)‑‑‑

‑‑‑‑S. 49‑‑‑Criminal Procedure Code (V of 1898), S.526‑‑‑Transfer of case‑‑Jurisdiction of High Court‑‑‑High Court, under S. 49, Control of Narcotic Substances Act, 1997, had unfettered jurisdiction to ‑transfer cases from one Special Court to the other except to the extent that such power was to be exercised in accordance with S. 526, Cr.P.C.‑‑‑Provisions of S.526(1)(d) & (e), Cr.P.C. had provided that powers of transfer could be exercised for the general convenience of the parties and also to meet the ends of justice‑‑‑One of the accused, in the present case, was the same in both the cases and most of the witnesses were official witnesses‑‑‑Transfer of case, in circumstances, from one Court to another for the convenience of the parties was in the interest of justice‑‑‑Case was ordered to be transferred accordingly.

M. Iqbal Ahmed for Applicant.

Shoaib Ashraf, Special Prosecutor of A. N. F. for the State.

MLD 2001 KARACHI HIGH COURT SINDH 1786 #

2001 M L D 1786

[Karachi]

Before Zafar Hadi Shah, J

KARACHI METROPOLITAN CORPORATION and

others‑‑‑Petitioners/Applicants

versus

MEAT MERCHANTS WELFARE ASSOCIATION‑‑‑Respondent

Civil Revision No. 169 of 1993, decided on 2nd January, 1998.

Sindh Local Government Ordinance (XII of 1979)‑‑‑

‑‑‑‑S. 2(55)‑‑‑Specific Relief Act (I of 1877), Ss‑42 & 54‑‑‑Civil Procedure Code (V of 1908), S.115 & O.XXXIX, Rr.1, 2‑‑‑Right to collect blood of slaughtered animals‑‑‑Suit for declaration and permanent injunction‑‑Temporary injunction, grant of ‑‑‑Butchers being owners of the slaughtered animals were entitled to collect the blood of their slaughtered animals before the blood became "waste blood" and Municipal Corporation had no right to collect the same except the "waste blood "‑‑‑Butchers would suffer irreparable loss if they were not allowed to collect the blood of their slaughtered animals and balance of convenience also lay in favour of plaintiff Association (Meat Merchants Welfare Association)‑‑‑Courts below, in circumstances, had rightly granted injunction to the Butchers.

Muhammad Iqbal Qureshi v. Mayor, Hyderabad Municipal Corporation, Hyderabad and another 1992 SCMR 857 ref

Manzoor Ahmed for Applicants.

Mirza Abdur Rasheed for Respondents.

Dates of hearing: 10th, 23rd, 24th, 26th September; 18th, 27th November; 1st, 9th and 15th December, 1997.

MLD 2001 KARACHI HIGH COURT SINDH 1813 #

2001 M L D 1813

[Karachi]

Before Sabihuddin Ahmed, J

Mst. FEHMIDA ALAM‑‑‑Petitioner

Versus

Mst. ZAIBUNNISA SHAIKH and others‑‑‑Respondents

First Rent Appeal No. 279 of 1999, decided on 23rd October, 1999.

(a) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S.15(2)(vii)‑‑‑Bona fide personal need of landlord‑‑‑Court could not sit in judgment over the particulars of personal requirement of any person and all that it could do was to examine whether the landlord's claim of personal need appeared to be genuine and in good faith‑‑‑Ample evidence was on record to prove that the accommodation in possession of landlady was not sufficient to enable 33 persons to live comfortably‑‑‑Bona fide personal need of landlady having been fully proved, Rent Controller had rightly ordered ejectment of tenant.

(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 15(2)(vii)‑‑‑Bona fide personal need of landlord‑‑‑Landlady sought ejectment of tenant in occupation of half portion of the premises on ground floor on the ground that remaining portion of the premises in her possession was not sufficient to accommodate 33 members of her family‑‑‑Contention of tenant was that landlady had constructed twp showrooms on the premises instead of constructing living room‑‑‑Validity‑‑‑Owner was always at liberty to utilize his property (subject to law) and to develop the way he liked and not according to desire of the tenant.

S.M. Akhtar Rizvi for Appellant.

Anwer Hussain for Respondents.

MLD 2001 KARACHI HIGH COURT SINDH 1815 #

2001 M L D 1815

[Karachi]

Before Sabihuddin Ahmed and Ghulam Rabbani, JJ

M. HANNAN and others‑‑‑Appellants

Versus

Dr. ANWARUL HASAN and others‑‑‑Respondents

High Court Appeal No. 171 of 1998, decided on 4th October, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.12‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑‑Limitation Act (IX of 1908), S.14 & Art. 113‑‑‑Suit for specific performance of contract‑‑Limitation‑‑‑Plaint was rejected on ground that suit was barred under Art. 113 of the Limitation Act, 1908‑‑‑Plaintiff, earlier had been trying to move various Courts seeking different reliefs and in most cases plaints were returned on the ground that the Court had no jurisdiction to grant required relief‑‑‑Suit was to be filed within three years, but was filed after expiry of the prescribed period‑‑‑Plaintiff could not show that relief in the suit was also sought in the earlier suit so as to claim benefit of S.14, Limitation Act, 1908‑‑‑Interference was declined by the High Court.

Muhammad Younas for Appellants.

Anwar Hussain for Respondent No. 1.

MLD 2001 KARACHI HIGH COURT SINDH 1817 #

2001 M L D 1817

[Karachi]

Before Mushir Alam, J

MUHAMMAD SALEH---Appellant

Versus

Haji ABDUL KHALIQUE---Respondent

First Rent Appeal No. 321 of 1998, decided on 14th November, 2000.

(a) Sindh Rented Premises Ordinance (XVII of 1979)---

----S.15(2)(vii)---Bona fide personal need of landlord---Prerogative though was given to the owner of the premises to claim the ejectment of tenant in case the premises was required for his own use or for the use of any of his children, but before such right was pressed foremost requirement was to satisfy the Rent Controller of good faith and bona fides of his requirement--Such fact was to be established through tangible evidence, more particularly when challenge was thrown by the tenant casting mala fide on intention of landlord.

Habibur Rehman v. Faqir Muhammad PLD 1983 Lah. 425;- Noor Muhammad v. Iqbal Ahmed 1985 CLC 1007; M.S. Khan v. S.M. Sirajuddin 1985 CLC 562; Fida Hussain v. Noor Muhammad Bana 1985 CLC 3014; Mst. Noorun Nisa v. Qamarul Huda 1988 CLC 183; Muhammad Yousuf v. Muhammad Ibrahim PLD 1991 Kar. 226; Faqir Muhammad v. Mst. Muhammad Bibi PLD 1991 SC 590; 1993 CLC 1350; Shamsul Islam Khan v. Pakistan Toursim Development Corporation Ltd. 1985 SCMR 1996; Muhammad Murtaza Khan v. Haji Abdul Rasheed 1988 MLD 1041; Muhammad Sharif v. Nisar Ahmed and others 1988 SCMR 1587; Messrs Leather Goods International through its Sole Proprietor, Nazimabad, Karachi v. Mst. Asiya Khatoon Sherwani 1986 CLC 333; Mst. Saira Bai v. Syed Anisur Rahman 1989 SCMR 1366; Haji Mohibullah & Co. and others v. Khawaja Bahauddin 1990 SCMR 1070 and Muslim Commercial Bank Limited, Karachi v. Haji Shaikh Yaqinuddin and 2 others PLD 1992 Kar. 314 ref.

(b) Sindh Rented Premises Ordinance (XVII of 1979)---

----S.15(2)(vii)---Bona fide personal need of landlord---Good faith and bona fides of landlord---Proof---Good faith and bona fides were to be established by some cogent and convincing evidence---Once the tenant was able to put a dent in the claim of landlord then it would become necessary to establish the fact and it was cumulative effect of the evidence that was to be assessed objectively and collectively to decipher bona fides of landlord and if enough material was such which reflected adversely, then the ejectment could not be granted---Son of the landlord for whom premises was sought to be ejected himself was the owner/landlord of two shops and had not chosen to seek ejectment of his tenant---Son was also not jobless as claimed by the landlord and another premises that had fallen vacant during the pendency of ejectment proceedings was let out on a higher rent and also another cabin which was carved out, was let out by the landlord---All such facts, had contributed to reflect adversely on the good faith of the landlord---Landlord, having failed to establish good faith and bona fides, his ejectment application was liable to be dismissed.

K.B. Bhutto for Appellant.

Latif-ur-Rehman for Respondent.

Date of hearing: 7th November, 2000.

MLD 2001 KARACHI HIGH COURT SINDH 1822 #

2001 M L D 1822

[Karachi]

Before Mrs. Majida Razvi, J

SHAMIM AHMAD---Appellant

Versus

Mst. SHAMIM BEGUM and others---Respondents

First Rent Appeal No. 120 of 1998, decided on 18th January, 1999.

Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 21---Limitation Act (IX of 1908), S.5---Appeal---Limitation---Delay, condonation of---Appeal which was to be filed within thirty days from the date of judgment/order passed by Rent Controller, was filed after expiry of the said period---Delay was sought to be condoned by the appellant on ground of his illness and was supported by medical certificate issued by private doctor, but the certificate did not cover the period after the judgment was announced by the Rent Controller---Provisions of S.5, Limitation Act, 1908 being not applicable to the cases under Sindh Rented Premises Ordinance, 1979 application for condonation of delay, having no merits, was dismissed.

Abdul Ghaffar and others v. Mst. Mumtaz PLD 1982 SC 88 ref.

Jamil-ur-Rehman for Appellant.

Anwar Hussain for Respondent No. 1.

MLD 2001 KARACHI HIGH COURT SINDH 1828 #

2001 M L D 1828

[Karachi]

Before Rana Bhagwan Das and Ghulam Nabi Soomro, JJ

SHAUKAT ALI and others ---Petitioners

Versus

BANKING TRIBUNAL-II FOR KARACHI AND SUKKUR and others---Respondents

Constitutional Petition No. D-1386 of 1994, decided on 15th October, 1998.

Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---

----Ss.9 & 18---Civil Procedure Code (V of 1908), OXXI, R.58--Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for recovery of money---Execution of decree---Auction of attached property--Suit was decreed and property which was mortgaged by judgment-debtor in favour of Bank/decree-holder was attached and was ordered to be sold through auction---Petitioners who claimed title in respect of the said property on basis of sale-deed allegedly executed in their favour by the judgment-debtor, filed application before Banking Tribunal under OXXI, R.58, C.P.C.---Application was dismissed by the Presiding Officer without holding inquiry into the claim put forward by the, petitioners/claimants ---Validity--Held, it was incumbent and imperative on the part of the Banking Tribunal to hold an inquiry into the claim of the petitioners with regard to their title to the property advanced by them on the strength of valuable documents and not to reject the same summarily as it was against mandatory provisions of O. XXI, R. 58, C.P.C. especially when claim was made by petitioners within a reasonable time without any delay---Order of Banking Tribunal suffering from inherent defect and infirmity, could not be sustained in law--Order passed without lawful authority was recalled with the direction that the claim of the petitioner in respect of property in question be investigated strictly according to law.

Muhammad Saleem Thepdawalla for Petitioners.

Abdul Saeed Khan Ghori for the Bank.

Nemo for Respondents Nos. 1 to 6.

Date of hearing: 15th October, 1998.

MLD 2001 KARACHI HIGH COURT SINDH 1840 #

2001 M L D 1840

[Karachi]

Before Hamid Ali Mirza, J

MUHAMMAD IRSHAD---Appellant

Versus

ALEEMUDDIN and others---Respondents

First Rent Appeal No. 230 of 1998, decided on 7th August, 1998.

(a) Sindh Rented Premises Ordinance (XVII of 1979)---

----Ss.15, 19 & 20---Ejectment proceedings---Failure of tenant to file written statement---Effect---Ex parte order---Setting aside of---Tenant, even if failed to file written statement and his ground was not considered to be good for the purpose of setting aside the order of ex parte proceedings, could not be debarred from participating in the further proceedings to be initiated after the passing of order for ex parte proceedings---Nothing was provided in Sindh Rented Premises Ordinance, 1979 to oust completely the tenant from exercising the right to cross-examine the witness of landlord---If tenant was not found to have made out a good cause for hearing him in answer to the ejectment sought against him, he at least could have been permitted to cross-examine the landlord.

Deputy Registrar, Cooperative Societies v. Mst. Zulekha Bai and others 1990 CLC 1003; Messrs Fakhri Traders v. Mst. Batool Fida Hussain Sheikh and 4 others 1985 CLC 282; Islamuddin v. Abdul Rehman and another PLD 1986 Kar.70; Province of Punjab and another v. Mst. Maqsooda Begum 1989 MLD 2170; Collector, Quetta Sub-division v. Sardar Qasim and 3 otherL PLD 1983 Quetta 1 and Azizullah Khan and 4 others v. Arshad Hussain and 2 others PLD 1975 Lah. 879 ref.

(b) Sindh Rented Premises Ordinance (XVII of 1979)---

----Ss. 15 & 20---Civil Procedure Code (V of 1908), Preamble ---Ejectment proceedings---Applicability of Civil Procedure Code, 1908---Extent--Provisions of C.P.C. though had not been made applicable to the rent proceedings, except as provided in S.20 of Sindh Rented Premises Ordinance, 1979, but Rent Controller could always adopt said provisions and apply the same whenever it was considered equitable and just.

----Arts. 132 & 133---Cross-examination---Right to---Right to cross-examine was a valuable right of the party and was a means of discovering truth of which he should not be lightly deprived.

Province of Punjab and another v. Messrs Muhammad Saeed Malik PLD 1986 Lah. 135 ref.

Karamatullah for Appellant.

Anwar Hussain for Respondents.

MLD 2001 KARACHI HIGH COURT SINDH 1845 #

2001 M L D 1845

[Karachi]

Before Zahid Qurban Alavi, J

SHAUKAT ALI ---Plaintiff

Versus

KARACHI ELECTRIC SUPPLY CORPORATION and others---Defendants

Suit No: 507 of 1989, decided on 22nd January, 1999.

(a) Fatal Accidents Act (XIII of 1855)---

----S. 1---Fatal accident---Suit for compensation---Plaintiff in proof of his claim filed his affidavit-in-evidence and also got examined three witnesses--Defendants who had not denied the cause of death of the deceased neither had filed their affidavits-in-evidence in rebuttal nor cross-examined witnesses of plaintiff despite opportunity was provided to them in that respect--Plaintiff had proved that the deceased had died as a result of electrocution by live electric wire on account of lack of care and negligence of defendants--Once the fatal accident was admitted, the presumption of negligence would arise moreso when the defendants had given their own version of accident, which was different from the version of the plaintiff, the defendants would take upon themselves the burden to prove the manner of accident pleaded by them---Failure of defendants to cross-examine the plaintiff's witnesses on the material aspects of negligence of defendants would lead to the conclusion that the defendants had admitted the truth and veracity of the plaintiff---Plaintiff having proved his case, the suit was decreed and amount of compensation was determined keeping in view the age and earning capacity of the deceased.

PLD 1959 Kar. 550; PLD 1983 Kar. 353; 1994 CLC 1903; 1997 CLC 501; Suit No. 1224 of 1989; Ursulina D' Lima v. Orient Airways Ltd. PLD 1960 Kar. 712; Kulsoom v. Jahl Ahmad Khan PLD 1964 Kar. 7; PIA v. Ursulina D' Lima PLD 1966 Kar. 580; Din Muhammad v. Faqir Muhamamd PLD 1970 Lah. 442; Mst. Momina Bai v. Ghulam Muhammad PLD 1977 Kar. 685; Nasreen v. Quality Steel and others PLD 1981 Kar. 561; Quality Steel v. Nasreen 1984 CLC 2071; Kandan v. Ali Hayat Services (Pvt.) Ltd. 1988 CLC 525; Mst. Kamina v. Al-Amin Goods (Pvt.) Ltd. 1988 CLC 894; Khatoon v. Noor Sher Khan 1988 MLD 1236; Vicar Ahmad v. Blue Lines (Pvt.) Ltd. 1989 CLC 229; Al-Hayat Services v. Kandan 1989 CLC 2153; Mst. Nafeesa Begum v. Muhammad Ismail 1989 CLC 2218; Farrukh Hamid v. M.D., Pak-Arab Refinery 1989 MLD 1228; Government of Punjab v. Mst. Kamina and others 1990 CLC 404; Kazi Arifuddin y. Government of Sindh PLD 1991 Kar. 291; Mst. Kamina v. AlAmin Goods Agency 1992 SCMR 1715; Pakistan Steel Mills Corporation Ltd. v. Malik Abdul Habib 1993 SCMR 848; Iqbal Hussain Jaffery v. K.E.S.C. 1994 CLC 1903; K.T.C. v. Kaisar Jehan 1995 CLC 196; Road Transport Board, N.W.F.P. v. Mst. Gul Zarina 1995 CLC 83; Jahangir Services (Pvt.) Ltd. v. Rukhsana Begum PLD 1995 Kar. 329; Amina v. Government of .Pakistan 1995 MLD 1922; Nisar Ahmed v. Mst. Uroos Fatima 1996 MLD 1913; Mst. Shamim Akhtar v. Javedan Cement 1997 CLC 955; Karim Bux v. K.E.S.C. 1997 CLC 507; Muhammad Moosa v. K.W. & S.B. 1997 CLC 925; Shah Bashir Alam v. Arokey Chemical Industry Ltd. 1997 MLD 2308; Punjab Road Transport Corporation, Lahore v. J.V Gardner 1998 CLC 199; Mst. Mariam v. Maulana-Ismail and another 1986 MLD 2027; Pehlwan Khan and another v. Sindh Employees' Social Security Institution and 3 others 1986 MLD 2061; Naseer Khan and another v. Muhammad Yousuf and another 1989 CLC 1970; Abdul Rashid and another v. Muhammad Anwar and 2 others 1990 CLC 370; Rasheed Abdul Hafeez and 3 others v. Ahmed and another 1991 CLC 370; Mst. Saman Seema Habib and others v. Nadaria Transport Service and another 1992 CLC 950; Mst. Bibi Surat Jan v. Mir Azam Khan and 2 others PLD 1993 Kar. 168; Rafique Jabir v. Superintendent of Police and 2 others 1993 CLC 1751; Syed Akbar Ali and 5 others v. Pak Steel Mills Ltd., Karachi and 2 others 1993 MLD 1759; Pakistan Steel Mills Corporation Ltd. and others v. Malik Abdul Habib and another 1993 SCMR 848; Mst. Mima and others v. Mukhadam Wali and another 1993 MLD 610; Muhammad Ilyas v. Pak Steel Mills Co. Ltd. 1994 MLD 2484; Syed lqbal Jaffrey v. K.E.S.C. 1994 CLC 1910; Saira and another v. Zonal Municipal Corporation 1995 MLD 113; Shadman v. K.T.C. 1995 CLC 986; Umeruddin v. Sher Gul Khan Niazi 1995 CLC 1164; Mai Nooran v. N.L.C. 1995 CLC 1969; DoSt Muhammad v. Pakistan Steel Mills 1996 CLC 530; Khatoon Bibi v. K.T.C. 1996 MLD 1197; Mst. Shamim Akhtar v.. Javedan Cement 1997 CLC 955; Jalil Ahmad Siddiqui v. K.T.C. 1997 CLC 1510; Fozia Begum v. K.T.C. 1997 CLC 1297; Roshan Jan v. Pakistan 1997 CLC 1417; Sabiha Riffat v. K.T.C. 1997 CLC 631; Shan v. K.T.C. 1997 MLD 2556; Muhammad Usman v. Pak Steel 1997 MLD 2763; Amina Begum v. Pakistan Steel 1997 MLD 2842; Mst. Shahida Ali v. K.T.C. 1997 MLD 2682; Afzal Hussain v. K.T.C. PLD 1997 Kar. 253; Anis-ur-Rehman v. Government of Sindh 1997 CLC 615; Gul Khan v. K.T.C. 1997 CLC 932; Waseema v. K.T.C. 1998 CLC 574 and Muhammad Athar Hussain v. K.P.T.C. 1998 CLC 933 ref.

(b) Civil Procedure Code (V of 1908)---

----O. VI, R.1 & O.VIII, R.1---Pleadings---Plea raised in the written statement---Effect---Plea raised in written statement would have no effect in absence-of evidence in proof of the same ---Averments in the pleadings would not constitute evidence unless they were proved by evidence.

Nasir Maqsood for Plaintiff. Sohail H.K.

Rana for Defendant No. 1.

Date of hearing: 28th August, 1998.

MLD 2001 KARACHI HIGH COURT SINDH 1861 #

2001 M L D 1861

[Karachi]

Before Shabbir Ahmed, J

MUHAMMAD SAEED and others‑‑‑Plaintiffs

Versus

MUHAMMAD ASIF and others‑‑‑Defendants

Suit No.461 of 1995, decided on 28th November, 2000.

(a) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss.42 & 55‑‑‑Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997), Ss. 18 & 21‑‑‑Suit for declaration, mandatory injunction etc. ‑‑‑Provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 having no retrospective effect, bar to suit instituted before coming into force of the said Act, could not be pleaded.

AIR 1990 All. 555 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.47‑‑‑Proceedings under S. 47, C.P.C.‑‑‑Provisions of S.47(2), C.P.C. enjoined to Court to treat a suit as proceedings under said section subject to the question of limitation or jurisdiction.

‑‑‑‑S.3 & First Sched.‑‑‑Civil Procedure Code (V of 1908), O. VII, Rr. 1, 6 & 11‑‑‑Suit, limitation for‑‑‑Plaintiff had to show that his suit was not instituted after the period prescribed therefore by First Sched. to the Limitation Act and that it was not required to be dismissed under S.3 of the said Act.

Peeru Muhammad Raotha Pillai v. Kassam AIR 1955 Trav‑Co 188 and Muhammad Akbar Khan v. Province of West Pakistan PLD 1957 W.P. (Lah.) 295 ref.

(d) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 42 & 55‑‑‑Civil Procedure Code (V of 1908), S.47 & O.VII, R.11----Suit based on compromise decree‑‑‑Limitation‑‑‑Rejection of plaint‑‑Plaintiffs had slept over more than six years and allowed the decree in their favour to become unexecutable due to expiry of limitation period and thus, could not base the suit on such compromise decree for the rights under the decree by seeking negative declaration‑‑‑Suit being incompetent under S.47(1), C.P.C. and also barred by limitation, the plaint was rejected.

Mustafa Lakhani for Plaintiffs. Anwar Muhammad for Defendant No.3.

Date of hearing: 28th November, 2000.

MLD 2001 KARACHI HIGH COURT SINDH 1871 #

2001 M L D 1871

[Karachi]

Before Anwar Mansoor Khan, J

KHURSHID ANWER --- Plaintiff

Versus

NIGHAT RAZA and 5 others---Defendants

Suit No. 150 of 2001, decided on 28th February, 2001.

Administration of justice-

---- Army Officers should not act in excess of their authority, jurisdiction or power that might have been granted to them---Officers of the Army Monitoring Team had only power or authority in relation to monitoring, but could not pass any order or give directions---No Officer of the Police should allow himself to be dictated by unlawful orders even of their superior Officers, for, if they would act on unlawful orders of their superiors, they would be personally liable---Army Monitoring Team or for that matter any person in uniform could not direct the Police Officers to act in any manner otherwise, than in due process of law.

Faisal Kamal for Plaintiff.

Ghulam Mustafa Khawaja for Defendants Nos. 1 and 5.

Syed Zaki Muhammad, Dy. A.G (on Court's Notice).

Defendant No.2 in person.

MLD 2001 KARACHI HIGH COURT SINDH 1879 #

2001 M L D 1879

[Karachi]

Before Sabihuddin Ahmed, J

SADDARUDDIN and others‑‑‑Plaintiffs

Versus

Messrs NATIONAL CONSTRUCTION CO. (PAK.) LTD. and others‑‑‑Defendants

Suit No. 897 of 1980, decided on 24th November, 1999.

Sales of Goods Act (III of 1930)‑‑‑

‑‑‑S. 57‑‑‑Suit for damages for non‑delivery of goods‑‑‑Defendants/sellers of goods despite receiving total price of goods in advance made past delivery of goods to the plaintiff/buyers, and failed to deliver remaining goods in time as provided in the terms and conditions of contract of sale‑‑‑Defendants sold undelivered quantity of goods at the risk of the plaintiff/buyers‑‑‑No evidence had been produced by the defendants/sellers to show that such risk sale was effected after notice to the plaintiffs and even particulars thereof had not been furnished by the defendants‑‑‑Risk sale being unjustified, the suit filed by plaintiff was decreed accordingly.

Ali Akbar for Plaintiffs.

Ismail Merchant for Defendants.

Date of hearing: 27th October, 1999.

MLD 2001 KARACHI HIGH COURT SINDH 1885 #

2001 M L D 1885

[Karachi]

Before Mushtaq Ahmed Memon, J

THE PAKISTAN INDUSTRIAL CREDIT AND INVESTMENT CORPORATION LIMITED‑‑‑Petitioner

Versus

Messrs ELECTRIC LAMP MANUFACTURERS OF PAKISTAN LIMITED‑‑‑Respondent

Judicial Miscellaneous No. 3 of 1993, decided on 27th March, 1998.

Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑Ss. 305 & 306‑‑‑Winding‑up of company‑‑‑Inability to pay debts, a recognized ground for winding‑up a company under S.305 of Companies Ordinance, 1984‑‑‑Legal fiction had been created under S.306 of the Ordinance whereby a company was deemed to be unable to pay its debts if a creditor had served on the company a notice demanding company to pay due sum and the company had for thirty days thereafter neglected to pay the sum or to secure or compound the same to the reasonable satisfaction of the creditor‑‑‑Burden lay upon the company to show its ability to pay its debts on account of said legal fiction and failure on the part of the company to reply to the notice under S.306 of Companies Ordinance, 1984‑‑‑Fact that company had assets far in excess of its liabilities, and that it was commercially solvent and that its liabilities were fully secured, would be no ground for refusing its winding‑up‑‑‑Company having failed to show that a bona fide dispute existed in relation to the amount claimed by the creditor, a case for winding‑up of company had clearly been made out‑‑‑Company was ordered to be wound up.

Hashim Can Company Limited v. K.K. & Co., (Private) Limited 1992 SCMR 1006; PICIC v. Messrs Indus Steel Pipe Limited 1993 MLD 94; Habib Bank Limited v. Hamza Board Mills and others PLD 1996 Lah. 633; Messrs Ali Woollen Mills Ltd. v. Industrial Development Bank of Pakistan and 3 others PLD 1990 SC 763 and Punjab National Silk Mills v. National Bank of Pakistan and others 1986 SCMR 1126 ref.

sMansoorul Arfeen and Miss Sofia Saeed Karachiwala for Petitioner.

Miss Masooda Siraj for Respondent.

MLD 2001 KARACHI HIGH COURT SINDH 1893 #

2001 M L D 1983

[Karachi]

Before Shabbir Ahmed

Dr. M. NASIR J. KHAN---Appellant

Versus

Mrs. SHEHNAZ MIRZA---Respondent

First Rent Appeal No. 157 of 1999, decided on 19th October, 2000.

(a) Cantonments Rent Restriction Act (XI of 1963)---

---S. 17(2) (iii) (a) & 4 (a)----Principle of res judicata----Applicability ----Subsequent ejectment application was filed by land lord against the tenant in changed circumstances after about 8 years from filing of the earlier application---Subsequent application filed in changed circumstances after considerable period of time with fresh ground; would not be barred on principle of res judicata.

Muhammad Ahmed v. Mst. Sakina 1984 SCMR 881 and Muhammad Mustaqeem v. Saeeda Khatoon 1988 MLD 2565 ref.

(b) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S.17(4)(a)‑‑‑Bona fide personal need of landlord residing abroad‑‑‑Bona fides of the landlady who was residing abroad, could not be doubted on the point of her requirement of the premises to live therein temporarily on her visit to Pakistan.

Mian Brothers v. Suleman 1989 CLC 494 and Ahmed‑un‑Nisa v. Parveen Siraj 1985 SCMr 2012 ref.

‑‑‑‑S. 17(2)(ii)(a)‑‑‑Subletting of premises‑‑‑Proof‑‑‑Tenant had left Pakistan and was living abroad for the last about four years and had not returned and his attorney/alleged sub‑tenant was paying the rent of the premises to the landlord‑‑‑Tenant having parted with possession of the premises without permission of the landlord, Rent Controller was justified in concluding that subletting of the premises had been proved.

Muhammad Yousaf v. Moosa 1987 CLC 981 ref.

(d) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S. 17‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 84‑‑‑Power of attorney‑Authenticity of‑‑‑Tenant who was residing abroad had defended ejectment case against him through his attorney/alleged subtenant‑‑‑Attorney, who claimed to be lawfully constituted attorney of the tenant, had produced photocopy of the power of attorney which was not even attested‑‑‑Rent Controller after comparing the admitted signatures with disputed signature on power of attorney, had concluded that the power of attorney was not executed b5, the tenant in favour of alleged attorney‑‑‑Rent Controller was empowered to compare the disputed signature with the admitted signatures and to form his view being permissible under Art. 84 of Qanun‑e‑Shahadat, 1984‑‑‑High Court, however, compared the signatures with the disputed ones and found them of different persons‑‑‑Findings of Rent Controller could not be interfered with.

Ghulam Rasool v. Sardarul Hasan 1997 SCMR 976 ref.

(e) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S.17(2)(i)‑‑‑Default on ground of non‑payment of utility bills‑‑‑Tenant, according to terms of tenancy agreement was required to pay utility bills to the concerned Department directly and in default thereof he was responsible for any additional expenditure involved‑‑‑Landlord, however, could not press into service the ground of default in payment of rent due to non‑payment of bills/charges though he could be entitled to press into service the breach of terms of tenancy and/or impairing the value and utility of the premises in. case of disconnection of supply of utility.

Bedruddin v. Muhammad Yousaf 1994 SCMR 1900 ref.

Munawar Malik for Appellant.

Nadeem Azhar for Respondent.

Date of hearing: 4th October, 2000.

MLD 2001 KARACHI HIGH COURT SINDH 1905 #

2001 M L D 1905

[Karachi]

Before Dr. Ghous Muhammad, J

ABDUL KARIM ‑‑‑Applicant

Versus

ABDUL KARIM ‑‑‑Respondent

Civil Revision Application No.52 of 1998, decided on 13th January, 1999.

Civil Procedure Code (V of 1908)

‑‑‑‑O. XL, R.1‑‑‑Receiver, appointment of‑‑‑Principles to be followed‑‑Discretion of Court in appointing the receiver could be exercised by following the principles viz. power to appoint receiver should be sparingly used; it should be exercised for the safeguard of the interest of all the parties as well as the property which was subject‑matter of the litigation and the possession of persons bona fide in occupation of the property should not be disturbed unless there were allegations of wastage or dissipation of property or apprehension of irreparable loss and injury.

Mst. Muhammad Bibi v. Additional Settlement Commissioner, Khairpur and 2 others PLD 1976 Kar. 181 and Shaikh Abdul Shakoor v. Shaikh Abdul Kadir 1982 CLC 707 ref.

M. Nissarally for Applicant. S.M. Haider for Respondents.

MLD 2001 KARACHI HIGH COURT SINDH 1911 #

2001 M L D 1911

[Karachi]

Before Dr. Ghous Muhammad, J

Mst. GHULAM SABRAN‑‑‑Applicant

Versus

THE ASSISTANT DIRECTOR LAND, LAND DIVISION

LYARI, KARACHI‑‑‑Respondent

Civil Revisions Nos. 185 to 190 of 1998, decided on 24th November, 1998.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115 & O. XLIII, R.1(r)‑‑‑Revisional jurisdiction, exercise of‑‑‑Order granting temporary injunction to applicants passed by Trial Court was set aside by Appellate Court in appeal‑‑‑Appellate Court by setting aside order of the Trial Court had not committed any material irregularity entailing miscarriage of justice‑‑‑Order passed by Appellate Court did not suffer from any jurisdictional defect‑‑‑Discretion exercised by Appellate Court was neither arbitrary nor perverse or fanciful‑‑‑Revision against order of Appellate Court having no merits was dismissed by High Court.

Shehzada Muhammad Umer Beg v. Sultan Mehmood Khan and another PLD 1970 SC 139; Administrator, KMC, Jhelum v. Syed Zulfiqar Ali NLR 1978 Civil 858 and Muhammad Akram v, Project Director, People's Works Programme NLR 1978 (Civil) 1201 ref.

Zafar Ali Shah for Applicant.

Manzoor Ahmed for Respondent.

MLD 2001 KARACHI HIGH COURT SINDH 1914 #

2001 MLD 1914

[Karachi]

Before Hamid Ali Mirza and

Anwar Zaheer Jamali, JJ

ZAI‑TID HUSSAIN ‑‑‑ Petitioner

Versus

ALLAH RAKHIO LAGHARI, JUDGE, BANKING

COURT N0.2 and others‑‑‑Respondents

Constitutional Petition No. 1535 of 1998, decided on 28th October, 1999.

Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 21‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Competency ‑‑‑Adequate alternative remedy of appeal under S.21 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 being available to the petitioner, Constitutional petition was not competent.

Vincent and others v. Karachi Development Authority 1992 CLC 518; Pervez Iqbal and 2 others v. Provincial Transport Authority, Sindh 1996 CLC 182; NLR 1999 TD 1; Ibrahim Textile Mills Ltd. v. Federation of Pakistan PLD 1989 Lah. 47 and Tank Steel and Re‑rolling Mills (Pvt.) Ltd., Dera Ismail Khan and others v. Federation of Pakistan and others PLD 1996 SC 77 ref.

Latif Saghar for Petitioner.

Masood Sheharyar for Respondents.

MLD 2001 KARACHI HIGH COURT SINDH 1991 #

2001 M L D 1991

[Karachi]

Before Faiz Muhammad Qureshi, J

BAKHSH ALI ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.40 of 1998, decided on 26th February, 2001.

Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S. 302‑‑‑Criminal Procedure Code (V of 1898), Ss. 342, 364(2) & 537‑‑Appreciation of evidence‑‑‑Statement of the accused under S. 342, Cr.P.C. did not bear the signature of the accused and certificate at the bottom had not been written in handwriting of the Presiding Officer of the Court which was flagrant violation of S. 364(2), Cr.P.C. and an illegality not curable under S.537, Cr.P.C.‑‑‑Incident was an unwitnessed one and the evidence of the prosecution witness who was not an eye‑witness, was not confidence inspiring‑‑‑Prosecution witnesses had simply stated that they had seen the accused running away with a pistol‑‑‑Case against the accused was doubtful‑‑‑Prosecution having failed to prove its case beyond reasonable doubt conviction and sentence awarded to the accused by the Trial Court, were set aside giving him benefit of doubt.

Abdul Sattar Kazi for Appellant.

Ali Azhar Tunio, A.A.G. for the State.

Date of hearing: 26th February, 2001.

Lahore High Court Lahore

MLD 2001 LAHORE HIGH COURT LAHORE 14 #

2001 M L D 14

[Lahore]

Before Maulvi Anwarul Haq, J

SHAHZAD IQBAL‑‑‑Petitioner

versus

FEDERAL PUBLIC SERVICE COMMISSION through

Secretary and others‑‑‑Respondents

Writ Petition No. 1657 of 2000, heard on 21st August, 2000.

(a) Pakistan Citizenship Act (II of 1951)‑‑‑

‑‑‑‑S. 17‑‑‑Domicile‑‑‑Determining factors‑‑‑Considerations‑‑‑Certificate of domicile‑‑‑ Domicile of father does not govern domicile of child‑‑‑Where Federal Government is satisfied that any person has ordinarily resided for a period not less than one year immediately before making application and has acquired a domicile therein, such person may be granted a certificate of domicile under the provision of S.17 of Pakistan Citizenship Act, 1951‑‑Domicile of father, under the provision of S.17 of Pakistan Citizenship Act, 1951, does not govern the domicile of his child.

(b) Pakistan Citizenship Rules, 1952-‑‑

‑‑‑‑R. 23‑‑‑Notification, Establishment Division O.M. No.2/2/67‑Dv. dated 26‑8‑1968‑‑‑ Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Certificate of domicile‑‑‑Treating of domicile of father of petitioner as his domicile Petitioner on the basis of his domicile of place "R" was appointed as Experimental Officer‑‑‑Petitioner's appointment for next higher post was not considered by the Authority for the reason that the domicile of the father of the petitioner was of place "Q" in other Province and while following the institutions contained in Establishment Division O.M. No. 2/2/67‑Dv, dated 26‑8‑1968, the domicile of the petitioner had been corrected in the seniority list and as such the petitioner could not apply for the post against Punjab quota‑‑‑Validity‑‑‑Where there was no allegation that the certificate of domicile was wrongly issued to the petitioner, presumption would be that the certificate had been issued after complying with the conditions contained in R.23 of Pakistan Citizenship Rules, 1952‑‑Petitioner was admittedly born at place "R", he completed his studies there, he was appointed and was performing his duties at place "R" but he was being debarred from applying for a post against Punjab quota for the reason that the father of the petitioner happened to have acquired domicile in a different Province‑‑‑Act of the Authority denying opportunity to the petitioner for being appointed to the post against Punjab quota was without lawful authority and without jurisdiction in circumstances.

Abdul Rahim Bhatti for Petitioner.

Raja Iftikhar Javed, Standing Counsel for Respondents.

Date of hearing: 21st August, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 18 #

2001MLD18

[Lahore]

Before Ch. Ijaz Ahmad, J

SAJJAD HUSSAIN‑‑‑Petitioner

versus

ADDITIONAL DIRECTOR‑GENERAL, LAHORE DEVELOPMENT

AUTHORITY, LAHORE‑‑‑Respondents

Writ Petition No. 19146 of 2000, decided on 21th September, 2000.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Contractual liability‑‑‑Enforcement of contract through Constitutional jurisdiction is not permissible.

Chanpur Mill Ltd.'s case PLD 1958 SC 257 and Messrs Momin Motor Company's case PLD 1962 SC 108 rel.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 8 & 20‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Alternate remedy‑‑‑Arbitration clause, invoking of‑‑‑Petitioner failed to invoke the arbitration clause before filing the Constitutional petition‑‑‑Maintainability‑‑‑Where alternate remedy of arbitration clause was available, the petition was not maintainable.

Messrs Murad Ali & Company's case 1999 SCMR 121 rel.

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Disputed question of fact‑‑Respondent authorities cancelled the contract made in favour of the petitioner on the ground that goods to be supplied were not according to the specification‑‑‑Validity‑‑‑Where there was a disputed question of fact between the parties, High Court had no jurisdiction to resolve such question in Constitutional jurisdiction.

Muhammad Younis's case 1993 SCMR 618 rel.

Rana Sardar Ali Khan for Petitioner.

MLD 2001 LAHORE HIGH COURT LAHORE 25 #

2001 M L D 25

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL HAMEED‑‑‑Petitioner

versus

SHARIQ MEHMOOD and 7 others‑‑‑Respondents

Civil Revision No. 1381‑D of 1994, heard on 9th March, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Limitation Act (IX of 1908), Scheci., Art. 113‑‑‑Suit for specific performance of agreement ‑‑‑Limitation‑‑‑Plaintiff/vendee had himself failed to pay balance amount on or before date fixed for execution of sale‑deed in his favour by vendor/defendant‑‑‑Suit under Art. 113 of Limitation Act, 1908 was to be filed within three years, from date fixed for execution of sale‑deed, but plaintiff/vendee had filed same after six years from the date of sale‑‑‑Suit was rightly dismissed concurrently by Courts below being barred by time‑‑‑Such concurrent findings of Courts below based on facts and law could not be interfered.

Khadim Nadim Malik for Petitioner.

Ch. Saghir Ahmad for Respondents.

Date of hearing: 9th March, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 36 #

2001 M L D 36

[Lahore]

Before Sheikh Abdur Razzaq, J

GHULAM RASOOL‑‑‑Petitioner

versus

JUDGE FAMILY COURT, TAUNSA, DISTRICT D.G. KHAN and another‑‑‑Respondents

Writ Petition No.8249 of 2000, decided on 3rd August, 2000

West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S.5 & Sched.‑‑‑Constitution of Pakistan (1973), Art. 199 ‑‑‑ Constitutional petition‑‑‑Dissolution of marriage on ground of Khula'‑‑‑Plaintiff‑wife seeking dissolution of marriage on ground of Khula' had foregone rights to acquire any benefit from defendant‑husband and she after only one week of the marriage, had gone to her parents and was residing apart from defendant husband for the last 4/5 years‑‑‑Continuing such hateful union any further was of no use at all‑‑Trial Court, in circumstances, had rightly granted divorce on basis of Khula'.

Muhammad Zahid Khan Sakhani for Petitioners.

MLD 2001 LAHORE HIGH COURT LAHORE 52 #

2001 MLD 52

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD AMIN ‑‑‑Petitioner

versus

JUDGE FAMILY COURT, MULTAN and another‑‑‑Respondents

Writ Petition No. 7849 of 2000, decided on 24th July, 2000.

(a) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S.5 & Sched.‑‑‑Dissolution of marriage on ground of Khula'‑‑‑Wife had shown firm stand in asking for divorce and ,from evidence and her conduct a clear inference could be drawn that reconciliation between the parties was not possible‑‑‑Family Court had attempted to bring about reconciliation between the parties, but its efforts also failed‑‑‑Held, it was better, in circumstances, to separate parties than to allow them to live in an atmosphere perpetually saturated with suspicion, mental distrust, discord and hatred for each other, because in such circumstances human life would become a mere waste‑‑‑Islam does not thrust upon parties a marriage devoid of bliss and happiness‑‑‑Family Court considering evidence on record, circumstances and probabilities of case, had rightly decreed suit for dissolution of marriage on ground of Khula', holding that in view of existing unhappy relations between parties there was no hope for their future happy living together within limits prescribed by God.

(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑Ss. 5 & 14‑‑‑Constitution of Pakistan (1973); Art, 199‑‑‑Constitutional jurisdiction‑‑‑Dissolution of marriage ‑‑‑Family Court neither omitted nor ignored consideration of material placed before it‑‑‑Interference in Constitutional jurisdiction was declined by High Court.

‑‑‑‑S. 5 & Sched.‑‑--‑Benefits and liabilities of parties‑‑‑Family Court had neither given any finding regarding ornaments etc. nor framed any issue‑‑Such benefits being civil liabilities, parties were at liberty to agitate the matter before a competent forum.

(d) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑Ss. 13 & 17‑‑‑Civil Procedure Code (V of 1908), Preamble‑‑‑Proceedings before Family Court‑‑‑Applicability of Civil Procedure Code, 1908‑‑‑Family Court was competent to adopt its own procedure‑‑‑Provisions of Civil Procedure Code, 1908 were not applicable in stricto senso in proceedings under West Pakistan Family Courts Act, 1964.

Ghulam Murtaza v. Additional District Judge 1991 CLC 81 ref.

S.M. Rashid for Petitioner.

MLD 2001 LAHORE HIGH COURT LAHORE 56 #

2001MLD56

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD ARSHAD‑‑‑Petitioner

versus

Kh. MANZOOR AHMAD‑‑‑Respondent

Second Appeal from Order No.22 of 1998, heard on 27th September, 1999.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss. 13(3)(ii), 4 & 15‑‑‑Bona fide personal need of landlord‑‑‑Protection of tenant‑‑‑Tenant owned eight other shops besides the shop in ‑dispute and landlords though had other shop, but that shop was not situated in urban area where the shop in dispute was situated‑‑‑Mere fact that landlords were British Passport holders would not disentitle them to seek ejectment of tenant from their property for their personal need‑‑‑If landlords would not occupy shop in dispute within stipulated period, law had provided protection to tenant to seek its reoccupation under S.13(4) of West Pakistan Urban Rent Restriction Ordinance, 1959‑‑‑Contention of landlords that they required the shop for their personal need, being borne out from record, they were entitled to get the shop vacated.

Sardar Muhammad Aslam for Petitioner.

Sh, Zamir Hussain and Manzoor‑ul‑Haq Dar for Respondents.

Date of hearing: 27th September, 1999.

MLD 2001 LAHORE HIGH COURT LAHORE 67 #

2001 M L D 67

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD YOUNIS ‑‑‑ Petitioner

versus

MUHAMMAD AYUB‑‑‑Respondent

Civil Revision No.706 of 2000, heard on 19th September, 2000.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.24‑‑‑Transer of suit‑‑‑Considerations‑‑‑Basic criteria for exercising of jurisdiction under S.24, C.P.C. in the matter of transfer of a suit is the existence of a reasonable--apprehension in the mind of a party that it will not get justice at the hands of the Presiding Officer.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.24‑‑‑Transfer of suit‑‑‑Complaint against the Bar and not against the Bench‑‑‑Cross cases of civil nature between the parties were pending adjudication at place "C "‑‑‑Respondent raised the plea that son of the petitioner was a practising lawyer at place "C", therefore, he on account of influence of the son of petitioner‑respondent would not get justice‑‑‑District Judge allowed the transfer application and the suits were transferred to place "S"‑‑‑Validity‑‑‑Complaint was not against the Bench but against the Bar‑-Where the District Judge, while deciding the transfer application, had not referred to the contents of written reply filed by the petitioner to the transfer application, such transfer had been made without jurisdiction‑‑‑Order of District Judge was set aside.

Ch. Fiaz Ahmad for Petitioner.

Muhammad Bashir Khan for Respondent.

Date of hearing: 19th September. 2000

2001 M L D 94

[Lahore]

Before Sheikh Abdur Razzaq, J

Malik NAZIM‑UD‑DIN NAZIM‑‑‑Petitioner

versus

GOVERNMENT OF PUNJAB and others‑‑‑Respondents

Writ Petition No. 730 of 1990, heard on 24th March, 2000.

West Pakistan Arms Ordinance (XX of 1965)‑‑‑

‑‑‑‑S. 12‑‑‑Constitution of Pakistan (1973)Art. 199‑‑‑Constitutional petition ‑‑‑Cancellation of licences‑‑‑Arms licences validly issued to petitioners were cancelled without giving them prior show‑cause notices‑‑Validity‑‑‑Order for cancellation‑ of arms licences could be passed tinder S.12(1)(a) of West Pakistan Arms Ordinance, 1965, only after a licence holder was given an opportunity of showing cause against proposed cancellation‑‑‑No such opportunity having been provided to the licensee, order cancelling licence was set aside being not sustainable in law.

Ibad‑ur‑Rehman Lodhi and Malik Muhammad Nawaz Khan for Petitioner.

Qazi Ahmed Naeem Qureshi for the State.

Date of hearing: 24th March, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 97 #

2001 M L D 97

[Lahore]

Before Sheikh Abdur Razzaq, J

ALI SHAH‑‑‑Petitioner

versus

ADDITIONAL COMMISSIONER and others‑‑‑Respondents

Writ Petition No. 1164 of 1999, decided on 21st March, 2000.

West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑Ss. 9, 14 .& 164‑‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑ Transfer of revision‑‑‑Revision petition before Commissioner against order passed by Collector, was transferred by Commissioner to Additional Commissioner who decided the same‑‑Petitioner challenged order of transfer in Constitutional petition contending that Commissioner before whom revision was filed was not competent to transfer the same to Additional Commissioner for disposal and that order was incompetently passed by Additional Commissioner and was liable to be set aside‑‑‑Validity‑‑‑Additional Commissioner was competent under S.9 of West. Pakistan Land Revenue Act, 1967 to exercise same powers as Commissioner and under S.14(2) of said Act Commissioner was competent to distribute business and transfer cases‑‑‑Order of Commissioner whereby revision was transferred to Additional Commissioner not suffering from any illegality, infirmity or in-competency, could not be interfered with.

Mian Inam‑ul‑Haq for Petitioner.

Raja Maqbool Zia for Respondents.

Syed Sajjad Hussain Shah, A.A. G.

2001 M L D 128

[Lahore]

Before Ch. Ijaz Ahmad, J

RAFI KASHIF‑‑‑‑Petitioner

versus

IMTIAZ AHMAD and 2 others‑‑‑‑Respondents

Writ Petition No.7833 of 2000, decided on 24th July, 2000.

(a) Oaths Act (X of 1873)‑‑‑‑

‑‑‑‑Ss.9, 10 & 11‑‑‑Constitution of Pakistan (1973), Art. 199 ‑‑‑ Constitutional petition ‑‑‑Oath‑‑‑Resiling from offer of oath‑‑‑Petitioner during execution proceedings made an offer for deciding the disputed fact on special oath‑‑Respondent accepted the offer and the dispute was decided against the petitioner‑‑‑Contention by petitioner was that the Executing Court without recording the statements of the parties decided the matter‑‑‑Validity‑‑‑Right of resiling from offer had not been conferred under Ss.9, 10 & 11 of the Oaths Act, 1873‑‑‑Petitioner would not be allowed to back‑out from his own offer/stand, merely on technical ground‑‑‑No material irregularity or illegality having been committed by the Court below, Constitutional petition was dismissed in circumstances.

Mst. Nasima Bibi v. Muhammad Farid 1916 CLC 1923; Malik Khan Muhammad alias Khani v. Maulvi Luqman and others 1993 CLC 1552 and Muhammad Ali's case PLD 1990 SC 841 ref.

(b) Oaths Act (X of 1873)‑‑‑

‑‑‑‑Ss.9, 10 & 11‑‑‑Oath, offer of ‑‑‑Resiling from such offer‑‑‑Offer once made by a party and accepted by the other would become binding contract between the parties and nobody would be allowed to resile from the contract.

Salim Ahmad's case 1974 SCMR 224: Muhammad Akbar v. Muhammad Aslam PLD 1970 SC 241 and Mst. Asifa Sultana v. Honest Traders PLD 1970 SC 331 ref..

Malik Liaqat Ali Saghalla for Petitioner.

MLD 2001 LAHORE HIGH COURT LAHORE 132 #

2001 M L D 132

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD ARSHAD‑‑‑Petitioner

versus

STATION HOUSE OFFICER, MAKHDOOM RASHID, MULTAN

and another‑‑‑Respondents

Writ Petition No.7936 of 2000, decided on 25th July, 2000.

Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S. 54‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Detention without warrant ‑‑‑F.I.R. under 5.334/336, P.P.C. was registered against another person who after investigation was found guilty, but detenu was apprehended under S.54, Cr.P.C. simply on the application filed against him at the time when investigation in the case against real accused was completed and case of the accused, who was adjudged responsible of offence, was sent up to the Court‑‑‑Validity‑‑‑Police, no doubt, was competent and had authority to take into custody any person under S.54, Cr.P.C. but some evidence must exist to connect such person with commission of the offence‑‑‑Nothing was on record against the detenu up to completion of investigation against real accused and submission of challan against him‑‑‑Detention of detenu merely on application in which evidence was created just to make out case against him filed long after submission of challan in Court against real accused, was deprecated‑‑‑Since it showed mala fides of Investigating Officer, especially when detenu was not in any way connected with the commission of offence‑‑‑Detention of detenu was declared to be illegal and he was set at liberty.

Mehmood Ashraf Khan for Petitioner.

Zafar Ullah Khakwani for the State.

MLD 2001 LAHORE HIGH COURT LAHORE 135 #

2001 M L D 135

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD AZEEM and 3 others‑‑‑Petitioners

versus

NATIONAL BANK OF PAKISTAN and 8 others‑‑‑Respondents

Writ Petition No.8052 of 2000, decided on 27th July, 2000..

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑‑

‑‑‑‑S.9‑‑‑Partnership Act (IX of 1932), S.19‑‑‑Suit for recovery of Bank loan‑‑‑Settling of dispute with Bank by managing partner of the firm‑‑Validity‑‑‑Such partner under the provision of S.19 of Partnership Act, 1932 was impliedly authorised to settle the dispute with the Bank.

National Bank of Pakistan v. Umer & Brothers and 3 others 1987 MLD 594 and Jiban Krishna De and another v. Sreepada Talukdar and others PLD 1953 Dacca 117 ref.

(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑‑

‑‑‑‑S.18‑‑‑Civil Procedure Code (V of 1908), S.12(2) & O.XIV, R.1‑‑Setting aside of judgment and decree‑‑‑Provisions of S.12(2), C,P.C.‑‑Applicability‑‑‑Non‑framing of issues‑‑‑Effect‑‑‑Decree by consent was passed by .the Banking Court against the defendants‑‑‑Consent was given by the managing partner of the firm whereas the remaining partners filed application under S.12(2), C.P.C. at the time when execution application was filed by the Bank‑‑‑Banking Court summarily dismissed the application under S.12(2), C.P.C. without framing issues‑‑‑Validity‑‑‑Parties were closely related and they failed to make .out that the judgment had been obtained by fraud or, misrepresentation or the same was without jurisdiction‑‑‑Where the application under S.12(2), C.P.C. was filed after execution proceedings were initiated, the application was improper, mala fide and was made only to protract to the proceedings and‑to abuse the process of the Court-‑‑Court could dismiss such application summarily without framing any issue or recording any evidence‑‑‑Application was rightly dismissed in, circumstances.

Mian Munir Ahmad's case PLD 1998 Kar. 278 and Ghulam Muhammad v. M. Ahmad Khan and 6 others 1993 SCMR 662 ref.

‑‑‑‑ Pardahnashin lady, privilege of‑‑‑Where the lady had not taken the stand that she was illiterate, privilege of a lady being a "Pardahnashin lady" was not attracted.

Karam Ali's case PLD 1990 SC 1 distinguished.

(d) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑‑

‑‑‑‑S.9(3)‑‑‑Civil Procedure Code (V of 1908), O. V, R. 20(3)‑‑‑Service on defendants ‑‑‑Publication of notice in press‑‑‑Where public notice was published in two dailies one in English and the other in Urdu, the service on the defendants was effected in circumstances.

Messrs Ahmad Autos and others v. Allied Bank of Pakistan Limited PLD 1990 SC 497 ref.

(e) Equity‑‑‑

‑‑‑‑ He who seeks equity must come with clean hands.

Nawabzada Raonaq Ali's case PLD 1973 SC 236 ref.

(f) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑‑

‑‑‑‑S. 21‑‑‑Constitution of Pakistan (1973), Art.l99‑‑‑Constitutional petition‑‑‑ Maintainability‑‑‑ Alternate remedy, non‑availing, of‑‑‑Petitioners instead of filing appeal under S.21, Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 assailed the decree in Constitutional petition‑‑‑Validity‑‑‑Where alternate remedy was available against the original decree, Constitutional petition was not maintainable.

Messrs Gold Star International v. Muslim Commercial Bank Ltd. 2000 MLD 421; Central Cotton Mills Ltd. and another v. Atlas Bot Lease Co. Ltd. 1998 SCMR 2352 and Messrs Ismail's case PLD 1996 SC 246 ref.

Mian Hafeez‑ur‑Rehman for Petitioners.

MLD 2001 LAHORE HIGH COURT LAHORE 145 #

2001 M L D 145

[Lahore]

Before Sheikh Abdur Razzaq, J

ABDUL RAHMAN‑‑‑Petitioner

versus

PRINCIPAL, KING EDWARD MEDICAL

COLLEGE, LAHORE and others‑‑‑Respondents

Writ Petition No.5778 of.2000, decided on 3rd August, 2000.

Educational institution‑‑‑‑

‑‑‑‑ Admission in medical college‑‑‑Replacement of candidate‑‑‑One foreign candidate who was given admission in M.B., B.S. 1st year class for Session 1998‑99, opted to continue his study in his own country‑‑‑Other candidate of the same country requested for admission in 1st year class in place of candidate who had left that seat in the college‑‑‑Candidate who opted to study in his own country having left his seat in Session 1999‑2000, the other candidate who wanted to replace him, could be accommodated in Session 1999‑2000 as seat fell vacant in that session, but since the relevant Session had come to an end the other foreign candidate was granted admission in M.B., B.S. Session 2000‑2001, same being not case of new admission, but that of replacement.

Sardar Muhammad Latif Khan Khosa for Petitioner.

Sh. Sajjad Ahmed for Abdul Rashid, Assistant Litigation, K.E. Medical College, Lahore.

MLD 2001 LAHORE HIGH COURT LAHORE 148 #

2001 M L D 148

[Lahore]

Before Ghulam Mahmood Qureshi, J

ABDUR RAHIM and 5 others‑‑‑‑Petitioners

versus

SETTLEMENT COMMISSIONER (LANDS), LAHORE

and another‑‑‑‑Respondents

Writ Petition No.948‑R of 1973, heard on 29th September, 2000.

Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑‑

‑‑‑‑S.10/11‑‑‑Allotment of land‑‑‑Cancellation of allotment‑‑‑Allotment of land made in favour of allottee thereof having been confirmed/finalized before crucial date viz. 27‑2‑1965, could not be called in question before any Authority‑‑‑Order cancelling allotment competently confirmed in favour of allottee, was set aside.

Province of Punjab v. Muhammad Mahmood Shah 1991 SCMR 1426; The Province of Punjab, through Collector, Bahawalpur v. Mst. Khudeeja Begum and another 1996 SCMR 1117 and Sh. Abdul Shakoor and others v. Settlement and Rehabilitation Commissioner (Lands), Lahore and others 1998 SCMR 1177 ref.

S.M. Tayyab and Khawaja Muhammad Akram for Petitioners. Nasim Sabir, A.A.‑G for Respondents.

Date of hearing: 25th September, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 151 #

2001 M L D 151

[Lahore]

Before Sheikh Abdur Razzaq, J

Shaikh JAVED KHALID AKHTER‑‑‑Petitioner

versus

DEPUTY COMMISSIONER, KHANEWAL and 4 others‑‑‑Respondents

Writ Petition No. 6629 of 2000, decided on 25th July, 2000.

Punjab Local Councils (Lease) Rules, 1990‑‑‑

‑‑‑‑Rr. 7 (5) & 8‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Cancellation of lease agreement‑‑‑Petitioner who was successful bidder, had entered into lease agreement with the Authority and on the very date of auction deposited the requisite amount‑‑‑After execution of said lease agreement, unsuccessful bidder through an application, offered higher sum and the Authority accepting said application cancelled lease agreement earlier arrived at between petitioner and Authority and ordered fresh auction to be held with reserve price offered by unsuccessful bidder‑‑‑Validity‑‑‑Lease agreement no doubt could be cancelled, but grounds of cancellation as enumerated in R.8 of Punjab Local Councils (Lease) Rules, 1990 should have been present in the cancellation‑‑‑No such grounds were available in cancelling lease agreement and re‑auction was ordered simply on offering higher sum by unsuccessful bidder than the one for which auction was confirmed in favour of petitioner‑‑‑If said state of affairs was allowed to continue, there would be no end of offer and acceptance and every prospective bidder would come with a fresh offer to dislodge previous person who had succeeded in auction‑‑‑Order cancelling lease agreement arrived at between petitioner and Authority passed on application of unsuccessful bidder moved just to dislodge petitioner, was set aside.

Tahir Mehmood for Petitioner.

Mian Arshad Latif for Respondents Nos. 2 to 5.

MLD 2001 LAHORE HIGH COURT LAHORE 159 #

2001 M L D 159

[Lahore]

Before Maulvi Anwarul Haq, J

AAMIR MASOOD‑‑‑Appellant

versus

Mst. KHURSHID BEGUM‑‑‑Respondent

Regular Second Appeal No. 14 and Civil Revision No. 285 of 1995, heart on 25th May, 2000.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 117‑‑‑Fact, proof of‑‑‑Onus‑‑‑Contention was that the transaction, was void as the owner was minor at the relevant time‑‑‑Validity‑‑‑Burden to prove the fact of minority of a person lies heavily on the person who alleges such minority‑‑‑Such person had to prove beyond shadow of doubt that owner was minor at the relevant time.

Nawab Sadiq Ali Khan and others v. Jai Kishori and others AIR 1928 PC 122 and Khan Gul and another v. Lakha Gul and another AIR 1928 Lah. 609 ref.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 11‑‑‑Void transaction‑‑‑Vendor, a minor‑‑‑Effect‑‑‑Where it was proved that the vendor was minor when the sale was made the vendee was rendered defenceless‑‑‑Mere fact that the vendor was a minor at the time of sale would render the sale document void and no plea of estoppel or bona fide purchase or even ratification upon attaining majority by the minor would be available to the vendee to defend the document‑‑‑No defence except the defence of limitation, if available, would be helpful to the vendee.

‑‑‑‑Art. 2(5)‑‑‑Fact, disproving of‑‑‑Where after considering the matter, the Court either believes that the fact does not exist or considers its nonexistence so probable that a prudent man ought to act upon the supposition that the fact does not exist, such fact is said to be disproved under the provisions of Art.2(5), Qanun‑e‑Shahadat, 1984.

Said Wali v. Yaqut Khan and another PLD 1993 SC 440 and Mst. Qamar Sultan v. Lofrine Begum and 2 others 1990 SCMR 1646 ref.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑

‑‑‑‑Arts. 117 & 120‑‑‑Civil Procedure Code (V of 1908), Ss.100 & 115‑‑Transaction of sale by minor‑‑‑Age of vendor‑‑‑Onus to prove‑‑‑Interference by High Court in exercise of jurisdiction under Ss.100 & 115, C.P.C.‑‑Plaintiff alleged to be a minor when property owned by him was sold to the defendants‑‑‑Plaintiff failed to prove that at the time of sale he was minor‑‑Trial Court dismissed the suit and appeal before the Lower Appellate Court also met the same fate‑‑‑Validity‑‑‑High Court did not find the case to qualify for interference with the findings recorded by the Courts below either in revision or in second appeal‑‑‑Appeal was dismissed in circumstances.

Jam Pari v. Muhammad Abdullah 1992 SCMR 786 and Muhammad Ameer v. Khan Bahadur and another PLD 1996 SC 267 ref.

Ch. Imdad Ali Khan for Appellant.

Ch. Mushtaq Ahmad Khan with Ch. Noor Elahi for Respondents Nos. l to 3.

Date of hearing: 22nd May, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 175 #

2001 M L D 175

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD SHARIF KHAN and 9 others‑‑‑Petitioners

versus

Chaudhry KARAMAT HUSSAIN and another‑‑‑Respondents

Writ Petition No .27 of 2000, decided on 14th April, 2000.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑‑

‑‑‑‑S.13(2)(vi)‑‑‑Constitution of Pakistan (1973), Art. 199---Constitutional petition‑‑‑Reappraisal of evidence ‑‑‑Ejectment of tenant on ground of reconstruction of premises ‑‑‑Ejectment sought by landlord on ground of reconstruction of premises had been resisted by tenant contending that no site plan for the said reconstruction had submitted by authorised person as the same was neither submitted by the attorney of landlord nor by any other authorised person‑‑‑Landlord had got the site plan sanctioned from concerned Authorities‑‑‑Mere fact that site plan was not submitted either by original landlord or by some other authorised person, would not give any cause of action to tenant to challenge that aspect of the matter‑‑‑Order dismissing ejectment application passed by Rent Controller was rightly set aside in appeal by Appellate Court‑‑‑Points raised by tenant had already been raised by him before appellate Court below and Appellate Court had adverted to all said points ‑‑‑Hikh Court while exercising Constitutional jurisdiction was not supposed to reappraise evidence which had already been appraised by Courts below.

Abdul Rehman Bajwa v., Sultan and 9 others PLD 1981 SC 522 ref.

Alam Khan Muhammad for Petitioners.

Ch. Muhammad Waris Khan for Respondents.

Date of hearing: 14th April, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 180 #

2001 M L D 180

[Lahore]

Before Raja Muhammad Sabir, J

Mst. NOOR BIBI and 7 others‑‑‑Appellants

versus

SADA‑‑‑Respondent

Regular Second Appeal No. l l l of 1988, heard on 6th April, 2000.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S.4‑‑‑Pre‑emption, right of‑‑‑Such right is very weak and the pre‑emptor has to prove the same strictly to oust the vendee.

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4 & 21‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 117 & 120‑‑‑Civil Procedure Code (V of 1908) S.100‑Second appeal‑‑‑Superior right of preemption ‑‑‑Onus to prove ‑‑‑Pre‑emptor filed the suit on the basis of being co-sharer in the Khata and owner in the estate ‑‑‑Vendee claimed his superior right of pre‑emption on the basis of his being tenant in the suit land‑‑‑Onus to pre‑empt the transaction was upon the pre‑emptor to prove his right to be superior to that of the vendee ‑‑‑Vendee, during the trial proved on record that Khata was privately partitioned ‑‑‑Pre‑emptor neither appeared himself as a witness in support of his version that the Khata of the suit land had never been partitioned nor produced any evidence‑‑‑Trial Court dismissed the suit but the First Appellate Court partly allowed the same‑‑‑Validity‑‑‑Strong circumstances existed to draw adverse inference against the pre‑emptor as the vendees were admitted to be the tenants of the vendor in the suit land‑‑Where there was no evidence to the effect that any share of the vendor was being cultivated by herself or by any other person, the pre‑emptor failed to establish his superior right of pre‑emption against the appellants‑‑‑Judgment and decree of the First Appellate Court were set aside and that of the Trial Court restored in second appeal.

Khizar Hayat Punian for Appellants.

Muhammad Mumtaz Malik for Respondent.

Date of hearing: 6th April, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 186 #

2001 M L D 186

[Lahore]

Before Maulvi Anwarul Haq, J

ASHIQ HUSSAIN and 2 others‑‑‑Appellants

versus

ZAFFAR IQBAL HAMEED KHAN‑‑‑Respondent

Regular Second Appeal No. 118 of 1986, heard on 29th June, 2000.

(a) Muslim Law‑---‑

‑‑‑‑Gift‑‑‑Delivery of possession‑‑‑Recital with regard to delivery of possession in gift deed‑‑‑Handing over of possession is necessary for completion of gift‑‑‑Recital in the document of gift as to delivery of possession is of no help where the possession had not been delivered‑‑‑Not necessary in every case of gift that the subject‑matter should be physically handed over‑‑‑Only such possession is to be handed over as is capable of delivery.

Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1960 (W.P.) Lah. 300 and Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140 ref.

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4 & 21‑A‑‑‑Pre‑emption suit‑‑‑Improvement in status ‑‑‑Vendee, prior to filing of suit by pre‑emptor, improved his status and acquired status better than that of the pre‑emptor ‑‑‑Status was improved by gift deeds executed in favour of the vendee ‑‑‑Both the Courts below did not accept the gift deeds for the reason that possession was physically not transferred, and the suit was concurrently decreed‑‑‑Validity‑‑‑Findings of both the Courts below that the gift deeds were sham or that the same were bad for non‑delivery of possession, were not supported by any evidence or material on record and as such were based on no evidence‑‑‑Where the vendees had acquired a qualification at par with that of the pre‑emptors before the institution of the suit in terms of S.21‑A, Punjab Pre‑emption Act, 1913, it could not be said that the pre‑emptors had a superior right of pre‑emption as against the vendees‑‑‑Judgments and decrees of both the Courts below were set aside‑‑Suit of the pre‑emptor was dismissed in circumstances.

Khurshid Alam and 2 others v. Muhammad Shah Nawaz and 12 others 1985 CLC. 1286; Ahmad Yar and another v. Muhammad Aslam 1981 CLC 527; Muhammad Ali and another v. Abdul Khaliq and another PLD 1958 Lah. 226; Dost Muhammad Khan v. Imam Bakhsh PLD 1971 Pesh 150 and Baqi Jan and 6 others v. Haji Mama Khel and others 1992 SCMR 1785 ref.

‑‑‑‑S. 25‑‑‑Registration Act (XVl of 1908), S. 60‑‑‑Fixing of sale price‑‑‑ Certificate of Sub‑Registrar‑‑‑Value of‑‑‑Where presumption attached to the certificate of Sub‑Registrar under S.60, Registration Act, 1908 was not rebutted, the actual payment stood proved and there was no need for determining the market value of the suit land‑‑‑In presence of registered documents it was not safe for the Trial Court to determine market value on the basis of scant evidence.

Malik Nasim Muhammad and Abdul Qudoos Khan Tareen for Appellants.

Mian Irshad Hussain and Kunwar Akhtar Ali for Respondent.

Date of hearing: 29th June, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 195 #

2001 M L D 195

[Lahore]

Before Nasim Sikandar, J

MUHAMMAD HUSSAIN and 2 others‑‑‑Appellants

versus

Haji GHULAM QADIR and 9 others‑‑‑Respondents

Regular Second Appeal No.461 of 1974, decided on 30th May, 2000.

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 21 & 21‑A‑‑‑Pre‑emption suit‑‑‑Improvement in status by vendee after period of limitation‑‑‑Putting up such improvement as a defence‑‑‑Pre-emptors filed their suits against the suit property well within time ‑‑‑Vendee during the pendency of the suits and after the limitation period onward alienated the suit land in favour of his sons‑‑‑Contention by the subsequent vendees was that they had a right of pre‑emption superior to that of the preemptor ‑‑‑Validity‑‑‑No improvement in the status by a vendee or further vendee could be put up as a defence when the last sale happened after the period of limitation and during the pendency of the suit.

Mst. Fateh Bibi v. Ahmed Khan and 6 others PLD 1971 Lah. 71; Mool Chand and others v. Ganga Jal and others AIR 1930 Lah. 356; Jas Raj Juniwal v. Gokal Chand Jaini AIR 1935 Lah. 808; Municipal Committee of Lahore v. Rattan Chand AIR 1923 Lah. 31; Dharam Singh v. Kirpal Sindh and others AIR 1923 Lah. 31(2); Her Keshi v. Miwa Ram and others AIR 1923 All. 294; Akbar Ali v. King‑Emperor AIR 1925 Lah. 614; Jan Muhammad v. Nasir Khan and others AIR 1925 Lah. 614(2); Muhammad Ismail Khan and another through their Legal Heirs v. Ghulam Haider and 3 others PLD 1988 Lah. 691; Muhammad Yaqoob and 4 others v. Ghulam Muhammad PLD 1982 Lah. 752.; Muhammad Khan and another v. Sadiq and others PLD 1968 Lah. 929; Muhammad Siddique and 8 others v. Wazir Hussain 1985 CLC 1091; Sarwar Din and another v. Zikri Khan and another 1987 CLC 2476 and Ghulam Muhammad and others v. Bakhsh PLD 1991 SC 562 ref.

Nemo for Appellants.

Ch. Abdul Ghani for Respondents Nos. l and 2.

Muhammad Khalid Alvi for Respondents Nos. 3 and 4.

Date of hearing: 22nd May, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 210 #

2001MLD210

[Lahore]

Before Ch. Ijaz Ahmad, J

SIKANDAR AZIZ and 20 others‑‑‑Petitioners

versus

SECRETARY, MINISTRY OF INDUSTRIES AND

PRODUCTION GOVERNMENT OF PAKISTAN

ISLAMABAD and 4 others‑‑‑Respondents

Writ Petition No.8140 of 1999, decided on 9th October, 2000.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Past and closed transaction‑‑Voluntary Separation Scheme introduced by the Authorities‑‑‑While exercising their option, the petitioners accepted the terms and conditions of the scheme in year 1996‑‑‑Later on another Scheme named Voluntary Retirement Scheme was issued by the Authorities in the year 1999‑‑Petitioners claimed benefits available in the subsequent scheme‑‑‑Validity‑‑Where the petitioners accepted the offer under the provisions of the earlier Scheme, the petitioners had no right to wriggle out of the same after obtaining payment from the Authorities on the basis of the earlier scheme as the same was acted upon‑‑‑Principle of past and closed transaction was attracted in circumstances.

Shamoon Bahadur's case PLD 1979 SC 835 and Miani's case PLD 1973 SC 17 rel.

United Sugar Mills' case PLD 1979 Kar. 410; The Murree Brewery to. Ltd.'s case PLD 1972 SC 279; Messrs Burhan Engineering Co. 1985 PTD 465 and NLR 1998 CLJ 294 (sic) distinguished.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Constitutional petition is not maintainable on apprehension.

National Re‑rolling Steel Mills's case 1968 SCMR 317 rel.

Ijaz‑ul‑Hassan for. Petitioners.

Farooq Amjad Mir for Respondents.

MLD 2001 LAHORE HIGH COURT LAHORE 219 #

2001 M L D 219

[Lahore]

Before Zafar Pasha Cahudhry, J

THE STATE‑‑‑Petitioner

versus

MUNAWAR HUSSAIN‑‑‑Respondent

Criminal Miscellaneous No.2516‑B of 2000, decided on 13th October, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(5)‑‑‑Penal Code (XLV of 1860), Ss.467/468/471/420/409‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Bail, cancellation of‑‑Accused and his co‑accused on account of their non‑cooperative attitude and conduct had hampered the progress of the trial‑‑‑Accused had allegedly misappropriated a substantial amount and his case was hit by the prohibitory clause of S.497(1), Cr.P.C.‑‑‑Co‑accused had already been refused bail‑‑Amount of mens rea or the guilt was far more in the case of a planned crime as committed by the accused than contained in a crime committed out of .some impulsive action or sudden affair‑‑‑Trial Court had not exercised its discretion judiciously in extending an undeserved concession of bail to accused‑‑‑Bail allowed to accused was cancelled in circumstances.

Muhammad Ashraf Shagufta for Respondent.

Syed Zafar Abbas Gillani for the Complainant.

Bilal Khan, Addl. A.‑G. for the State.

MLD 2001 LAHORE HIGH COURT LAHORE 226 #

2001 M L D 226

[Lahore]

Before Maulvi Anwarul Haq, J

Sh. ABDUL KARIM KAPUR‑‑‑Petitioner

versus

Shaikh JAVED IQBAL and others‑‑‑Respondents

Writ Petition No.4166 of 1986, heard on 9th October, 2000.

(a) Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑S. 12(2)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Power of attorney‑‑‑Scope‑‑‑Deciding application under S.12(2), C:P.C: without framing of issues‑‑‑Partition suit was decreed in terms of compromise between the parties‑‑‑Applicant alleged that she had neither‑the knowledge of the suit nor she authorised her attorney to surrender her share in ancestral property in .favour of other shareholders wherein the attorney himself was one of the beneficiaries from the surrendering of the share‑‑Trial Court dismissed the application summarily without framing the issues‑‑‑Lower Appellate Court in exercise of revisional jurisdiction allowed the revision and remanded the application for decision afresh ‑‑‑Validity‑‑Controversy raised by the applicant under S.12(2), C.P.C. could not be resolved by a bare reference to the contents of the powers of attorney and the same had to be determined after the trial.

Mst. Ume Kalsoom v. Zahid Bashir through Legal Heirs and another 1999 SCMR 1696 and Ghulam Muhammad v. M. Ahmad Khan and 6 others 1993 SCMR 662 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Observation qua merits of the case‑‑Where Lower Appellate Court, while allowing revision petition had proceeded to make observations which might tend to affect the trial of the case, such observations were set aside by High Court.

Mian Nisar Ahmad for Petitioner.

Muhammad Nazir Janjua for Respondent No. 14.

Abdul Rehman Madni for Respondents Nos. 10, 13 18(l) and 20.

Respondents Nos. 1 to 9, 11, 12, 15, 16, 10 and 22: Ex Parte.

Date of hearing: 9th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 233 #

2001 M L D 233

[Lahore]

Before Maulvi Anwarul Haq, J

UNIVERSITY OF ENGINEERING AND TECHNOLOGY

through Vice‑Chancellor, Lahore‑‑‑Petitioner

versus

Messrs MODERATE BUILDERS through A. Qutabuddin‑‑‑Respondent

Civil Revision No.767 of 1987, heard on 13th October, 2000.

(a) Arbitration Act (X‑ of 1940)‑‑

‑‑‑‑‑S. 29‑‑‑Award of anti‑litem or pre‑decree interest on amount‑‑Jurisdiction of Court‑‑‑Scope‑‑‑Court was authorized under S.29 of Arbitration Act, 1940 to award interest on the amount adjudged to be ‑due under the award and consequently confirmed in the decree‑‑‑Court had no jurisdiction to grant ante‑litem or pre‑decree interest on the amount, so adjudged.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 15, 29 & 30‑‑‑Award, setting aside of‑‑‑Arbitrator including interest on the amount of award‑‑‑Award was made rule of Court ‑‑Contention was that amount of interest included by the arbitrator and the amount so granted was ante‑litem‑‑‑Validity‑‑‑Arbitrator was not vested with the jurisdiction to award interest‑‑‑Where interest was awarded by the arbitrator, the same was illegal and the award was void to that extent‑‑‑Award being separable, entire award need not be set aside or remitted back to the arbitrator‑‑‑High Court, under the provision of S.15 of Arbitration Act, 1940, was empowered to correct the error by modifying award and the same was modified by deleting the amount of interest included in the award‑‑‑Order and decree passed ,by the Trial Court was set aside and the award was modified accordingly.

Abdul Ghani and 4 others v. Mst. Saida Naeem Hussain 1984 SCMR 597 and Ijaz Haroon v. Inam Durrani PLD 1989 Kar. 304 ref.

Ghulam Abbas v. Trustees of the Port of Karachi PLD 1987 SC 393 rel.

Sajjad Hussain for Petitioner. Muhammad Sarwar.

Rana for Respondent.

Date of hearing: 13th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 248 #

2001 M L D 248

[Lahore]

Before Khawaja Muhammad Sharif and Naeem Ullah Khan Sherwani, JJ

GHULAM QADIR‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.351 and Murder Reference No. 130 of 1995, heard on 24th October, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Ocular account not supported by medical evidence‑‑‑Accused was alleged to have given fist blows to the deceased‑‑‑Such allegation against the accused was contradicted by report of post‑mortem examination ‑‑‑Post‑mortem report contained only one fire‑arm injury and there was no other injury on tire person of the deceased‑‑Effect‑‑‑Where role attributed to the accused was not corroborated by medical evidence, sentence of life imprisonment awarded to the accused by the Trial Court was set aside‑‑‑Accused was acquitted in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S. 302(b)‑‑‑Sentence‑‑‑Mitigating circumstance‑‑‑Non‑repeating of fire shot‑‑‑ Accused was alleged to have caused single fire shot on the deceased and the same proved to be fatal‑‑‑Deceased forcibly removed his minor daughter from the custody of her mother. from the house of his in‑laws and during that incident caused injury to, co‑accused with sugarcane stick‑‑Accused being first cousin of the co‑accused fired at the deceased and as such the single shot proved to be fatal‑‑‑Trial Court convicted the accused and imposed death penalty‑‑‑Validity‑‑‑Where the accused did not repeat the fire and there were mitigating circumstances in his favour the sentence of death awarded by the Trial Court was converted into life imprisonment accordingly.

Sh. Naveed Shehryar for Appellant.

M. Jahangir Wahla, A.A.‑G for the State.

Date of hearing: 24th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 259 #

2001 M L D 259

[Lahore]

Before Khawaja Muhammad Sharif, J

SHEHBAZ AHMAD‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No.6050‑B of 2000, decided on 23rd October, 2000.

(a) Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑‑Ss. 497 & 498‑‑‑Bail before arrest and bail after arrest‑‑‑Considerations for grant. of bail before arrest are totally different from those of after arrest.

(b) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑‑Ss. 497 & 498‑‑‑Penal Code (XLV of 1860), S. 302‑‑‑Bail before arrest‑‑‑Misuse of concession of pre‑arrest bail‑‑‑Triple murder‑‑Indiscriminate firing‑‑‑Eight co‑accused were still at large‑‑‑Three persons were murdered and 150 empty cartridges were recovered from the place of occurrence‑‑‑Accused had won over some of the witnesses during pendency of his application for bail before arrest before the Trial Court and some of them had been won over by him before filing application for interim bail before arrest before High Court‑‑‑‑Accused was named in the F.I.R. with a specific role and had misused the concession of bail‑‑‑Offence fell within the prohibitory clause of S.497 (1), Cr.P.C.‑‑‑Bail was refused in circumstances.

1979 SCMR 137; 1997 PCr.LJ 916; PLD 1996 Lah. 192 and PLD 1997 SC 347 ref.

Ch. Muhammad Ali Sial for Petitioner.

Kazim Iqbal Bhangoo for the State.

MLD 2001 LAHORE HIGH COURT LAHORE 271 #

2001 M L D 271

[Lahore]

Before Khawaja Muhammad Sharif J

MUHAMMAD KHAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.66‑J of 2000, heard on 3rd November, 2000.

Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S. 302(b)‑‑‑Circumstantial evidence‑‑‑Blind murder‑‑‑Nobody was named in the F. I. R. ‑‑‑Accused was arrested on the basis of recoveries of gun, gold ring and Rs.2,000‑‑‑Recovery memo. was prepared on the day when the evidence of recovery witness was recorded in the Trial Court‑‑‑Deceased was not a man of good character and was involved in many cases‑‑‑Trial Court, on the basis of circumstantial evidence, convicted the accused for life imprisonment‑‑‑Validity‑‑‑Every chain of circumstantial evidence should be linked with each other‑‑‑Case being that of circumstantial evidence and some links missing quality and good standard of evidence was required to convict accused on capital charge, which was not available‑‑‑Evidence produced by prosecution was not satisfactory‑‑‑Conviction and sentence awarded by the Trial Court was set aside in circumstances.

Mrs. Siddiqa Altaf Khan for Appellant (at State expenses).

Muhammad Tufail for the State.

Date of hearing: 3rd November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 277 #

2001 M L D 277

[Lahore]

Before Khawaja Muhammad Sharif, J

SAFDAR IQBAL‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.5943‑B of 2000, decided on 27th October, 2000.

(a) Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979, S. 10‑‑‑Bail, grant of‑‑‑Police official who raided house of the accused without any search warrant was complainant‑‑‑Husband of co-accused did not appear as witness before Investigating Officer‑‑‑Report of Chemical Examiner was negative‑‑‑Effect‑‑‑Police had no authority to enter into the house of any citizen without, any search warrant‑‑‑Where police arrested the accused after entering into the house of the accused without any search warrant, bail was granted to the accused.

(b) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10‑‑‑Bail, grant of ‑‑‑Suo motu notice‑‑‑Police entered into house of the accused without any search warrant ‑‑‑Prosecutrix (co‑accused) was arrested ‑from the house without any complaint‑‑‑High Court taking suo Motu notice released the female accused on bail in circumstances.

Muhammad Arif Gondal for Petitioner.

Saif Ullah Khalid for the State.

MLD 2001 LAHORE HIGH COURT LAHORE 282 #

2001 M L D 282

[Lahore]

Before Mian Nazir Akhtar, J

GHULAM MUSTAFA‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No‑3585‑B of 2000, decided on 3rd October, 2000.

Criminal Procedure Code (V of 1898)---

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10‑‑‑Bail‑‑‑Abductee in her statement under S. 164, Cr.P.C. did not mention about her alleged Nikah with the accused., rather she had narrated the background in which she was deceitfully taken away from her house‑‑‑Accused and his co‑accused were stated by the abductee to have subjected her to illicit intercourse‑‑‑Affidavit of abductee submitted before the Investigating Officer was yet to be verified and could not be preferred over her statement recorded by the Magistrate under S. 164, Cr.P.C.‑‑‑Bail was refused to accused in circumstances.

Ch. Muhammad Aslam Sandhu for Petitioner.

Sher Muhammad for the State.

N.A. Butt for the Complainant.

MLD 2001 LAHORE HIGH COURT LAHORE 287 #

2001 M L D 287

[Lahore]

Before Nazir Ahmad Siddiqui, J

MUHAMMAD ZAFAR alias ZAFFAR IQBAL‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos.909‑B and 2000/BWP, decided on 27th October, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S. 337‑A(ii)/337‑F(v)‑‑‑Bail‑‑Accused has been nominated in the promptly lodged F.I.R. with a specific role of causing injuries to the complainant with an iron bar resulting in fracture and dislocation of his bone‑‑‑Grant of bail in all cases of the offences not falling within the prohibitory clause of S. 497(1), Cr.P.C. is not an inflexible rule‑‑‑Bail was declined to accused in circumstances.

1999 PCr. LJ 1348 ref.

Malik M.H. Zafar Misson for Petitioner.

Abdul Manan Baig for the Complainant.

Syed Niaz Ali Shah for the State.

MLD 2001 LAHORE HIGH COURT LAHORE 293 #

2001 M L D 293

[Lahore]

Before Muhammad Asif Jan, J

IMRAN SHAH‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3151‑B of 2000, decided on 31st July, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 11‑‑‑Bail, grant of‑‑‑No allegation of Zina was levelled against accused and there was nothing on record showing kidnapping or abduction or even enticement within meaning of S. 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 against accused‑‑‑Prosecution 'stated that three persons saw the alleged abductee going in the company of accused persons without raising any hue and cry and out of said three persons two were real brothers of the complainant and third one was her brother‑in‑law who could have resisted accused persons from kidnapping or abducting alleged abductee‑‑‑Reasonable grounds within meaning of S. 497(1), Cr.P.C. did not exist to believe that accused was guilty of offence punishable with death or imprisonment for life or imprisonment for ten years‑‑‑Case thus required further inquiry and accused was entitled to grant of bail.

Syed Zafar Abbas Mashhadi for Petitioner.

Shan Gull (on Court's call) assisted by Zafar Iqbal Sulehria for the State.

MLD 2001 LAHORE HIGH COURT LAHORE 299 #

2001 M L D 299

[Lahore]

Before Ch. Ijaz Ahmad, J

KAMAL AFSAR‑‑‑Petitioner

versus

PUNJAB BAR COUNCIL through Secretary and 6 others‑‑‑Respondents

Writ Petition No.8558 of 2000, heard on 25th October, 2000.

General Clauses Act (X of 1897) ------

‑‑‑‑S. 24‑A‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑ Administration of justice‑‑‑Order passed by the Authorities was without reasons and evidence of the parties was not discussed-‑‑Effect‑‑‑After addition of S. 24‑A in General Clauses Act, 1897, it was duty of public functionaries to redress grievance of citizens with reasons‑‑‑Matter was remanded to the Authorities for decision afresh.

Messrs Air Port Support's case 1998 SCMR 2268 ref.

Shahid Hussain Kadri for Petitioner.

Muhammad Ahsan Bhoon for Respondents.

Date of hearing: 25th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 300 #

2001 M L D 300

[Lahore]

Before Khawaja Muhammad Sharif, J

SIKANDAR and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.297 of 1993, heard on 13th October, 2000.

(a) Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S. 410‑‑‑Appeal‑‑‑Presence of accused‑‑‑Accused absconding after bail‑‑Hearing of appeal is valuable right of accused and the accused, who after conviction files appeal before Appellate Court, a duty is cast upon the accused that he should be present in Court or in jail or duly represented by his counsel.

(b) Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S. 410‑‑‑Appeal‑‑‑Hearing of appeal in absence of accused‑‑‑Consequences‑‑‑ Absconder after his arrest loses his right of bail and if the accused after trial is found guilty and after being sentenced the accused files appeal, his sentence is suspended by the Appellate Court and after being released on bail he absents himself then such accused has no right of appeal in circumstances.

‑‑‑‑S. 4]0‑‑‑Penal Code (XLV of 1860), S. 302/307/34‑‑‑Appeal‑‑‑Absence of accused‑‑‑After suspension of sentence, the accused persons failed to appear before High Court at the time of hearing of appeal‑‑‑Effect‑‑‑Such accused persons had no right of appeal and the same was dismissed in circumstances.

Syed Zahid Hussain Bukhari for Appellants.

Syed Ali Raza for the State.

Ch. Muhammad Abdus Saleem for the Complainant.

Date of hearing: 13th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 303 #

2001 M L D 303

[Lahore]

Before Maulvi Anwarul Haq, J

KHAN MUHAMMAD KALYAR and 2 others‑‑‑Petitioners

versus

The COMMISSIONER, SARGODHA DIVISION, SARGODHA and 7 others‑‑‑Respondents

Writ Petition No.21715 of 2000, heard on 7th November, 2000.

Punjab Local Government Election Ordinance (V of 2000)‑‑‑

‑‑‑‑S. 3(2)(c)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑ Delimitation of Union Council‑‑‑Disputed village was added inadvertently to a Union Council to adjust the population and correction of clerical error‑‑‑Validity‑‑‑No justification existed to upset the constitution of the Union Council which was constituted since 1962 only to correct the clerical error‑‑‑Order of delimitation having not been passed with lawful authority was set aside.

Dr. Mohyuddin Qazi for Petitioners.

Ch. Habib Ahmad for Respondent No. 5.

Muhammad Siddiq, A.D.C.(G), Sargodha.

Muhammad Iqbal, ADLG, Sargodha.

Muhammad Hanif Khatana, A.A.‑G. (on Court's call).

Date of hearing: 7th November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 305 #

2001 M L D 305

[Lahore]

Before Khawaja Muhammad Sharif, J

MAQSOOD AHMAD‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3894‑B of 2000, decided on 26th October, 2000.

Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S. 497‑‑‑renal Code (XLV of 1860), S. 302‑‑‑Bail, grant of‑‑‑Delay in recording of statement under S. 161, Cr.P.C.‑‑‑Statements of two witnesses were recorded by police six years after the registration of F.I.R.‑‑‑Accused was arrested on the basis of such statement‑‑‑No explanation had, been given by the two witnesses for remaining silent for six years‑‑‑Case being that of no evidence bail was allowed in circumstances.

Munir Ahmad Bhatti for Petitioner.

Kh. Shaukat Ali for the State.

MLD 2001 LAHORE HIGH COURT LAHORE 307 #

2001 M L D 307

[Lahore]

Before Zafar Pasha Chaudhry, J

ZULFIQAR ALI‑‑‑Petitioner

versus

FAYAAZ BHATTI and 6 others‑‑‑Respondents

Criminal Revision No.379 of 2000, decided on 20th October, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 150‑‑‑Permission granted to prosecution to cross‑examine its own witness‑‑‑Conditions‑‑‑Medical Officer, a prosecution witness, during cross‑examination had made a vague statement intended to help the accused‑‑‑Trial Court, however, observed that the ambiguity could be resolved by subjecting the said witness to reexamination‑‑‑Prosecution, however, was under the apprehension that during re‑examination the said witness might extend some more concession to accused with a view to create dents in the prosecution version‑‑‑High Court, in circumstances, ordered that in case the same was done and it was satisfactorily demonstrated to the Court, the witness might be allowed to be cross‑examined in the interest of justice‑‑‑Revision petition was disposed of accordingly.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑‑

‑‑‑‑Arts. 133 & 150‑‑‑Examination of witnesses‑‑‑Prosecution witness, during the course of statement, deviating from true facts and trying to suppress such facts in order to extend concession to accused or due to some other ulterior motive‑‑‑Procedure and duty of Court in such eventuality stated.

In case any ambiguity crops up during cross‑examination which needs clarification or elucidation then witness can be re‑examined with the permission of the Court. The order of examination as prescribed in the Order is meant to elicit true facts from the witness, the party at whose instance the witness has been produced will, of course, examine him and as such put forth its case. Thereafter, to test the credibility or veracity of the witness, the adverse party has been granted the right of cross‑examining him. If some ambiguity or confusion has arisen during the cross‑examination, the party can re‑examine the witness and if some new facts have been introduced then the adverse party can cross‑examine him further. The examination‑in‑chief, cross‑examination and re‑examination all make one statement. The whole exercise is undertaken to extort truth so that complete justice may be dispensed with. During course of the statement, if a witness produced by the prosecution deviates from the true facts and the same are being suppressed in order to extend concession or due to some other ulterior motive, the Court can permit the party to cross‑examine its own witness. Considering the rationale underlying section 150, the principle should be made applicable to the statement made during re‑examination as well. It is possible that during the course of re‑examination a witness while clarifying or elucidating a fact may suppress the truth or state something which appears to be palpably false or, self‑contradictory or for some allied reasons then permission can be sought to cross‑examine that witness.

Kh. Sultan Ahmad for Petitioner.

Syed Ihsan Qadir Shah for Respondents.

Mansoor Ahmad Mian for the State.

Date of hearing: 20th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 310 #

2001 MLD 310

[Lahore]

Before Riaz Kayani and Khawaja Muhammad Sharif, JJ

GHULAM DASTGIR and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1207 and Murder Reference No. 491/T of 1999, decided on 18th May, 2000.

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑Ss.2 (a), 7 & 10(4)‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑Sentence‑‑‑Gang rape‑‑‑Accused persons not covered under the definition of "adult" as provided under S.2(a) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979‑‑‑Both the accused persons not being adult had committed Zina‑bil‑Jabar with minor girl of 9 years of age‑‑‑Anti‑Terrorism Court convicted and sentenced both of the accused to death ‑‑‑Validity‑‑Where the accused persons were not adult, they could not be convicted under S.10(4), Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and could only be convicted under S.7 of the Ordinance‑‑‑No death having been caused during the commission of offence case was covered under S.7 (b) of Anti‑Terrorism Act, 1997‑‑‑Sentence of death was altered to life imprisonment in circumstances.

(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑Ss. 7 & 10(4)‑‑‑Sentence under S. 10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979‑‑‑Scope‑‑‑Provision of S. 10(4) of the Ordinance is subject and subservient to S.7, Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

Ghulam Nabi Bhatti for Appellants.

Masood Sadiq Mirza for the State.

Malik Tariq Ali Jadran for the Complainant.

Date of hearing: 18th May, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 321 #

2001 M L D 321

[Lahore]

Before Ghulam Mahmood Qureshi, J

Mst. SANOBER JAN‑‑‑Petitioner

versus

SHAUKAT ALI and others‑‑‑Respondents

Civil Revision No.459 of 1999, decided on 15th December, 1999

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Ss. 5 & 14‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Condonation of delay‑‑‑Proceedings in Court without jurisdiction ‑‑‑Refilling of revision in High Court after period of limitation‑‑‑Petitioner filed her revision petition before the District Judge‑‑‑When the revision was filed, period of more than 1/1‑2 months was available to the petitioner for filing the same in the High Court‑‑‑Additional District Judge to whom the case was entrusted did not attend to the value of the revision for jurisdictional purpose and the same was returned to the petitioner with undue delay‑‑‑Validity‑‑‑Had the revision petition been returned without undue delay, the petitioner could have filed her revision in the High Court within period of limitation‑‑‑Delay in filing of revision before High Court was condoned in circumstances.

Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 fol.'

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 12(2) & 115‑‑‑Decree, setting aside of‑‑‑Counsel and client, relationship of‑‑‑Execution of power of attorney in favour of counsel and other documents was denied by the petitioner‑‑‑Suit was decreed by the trial Court in favour of the respondents on the basis of statement recorded by the counsel‑‑‑Petitioner assailed the decree in application under S.12(2), C.P.C.‑‑‑Trial Court framed issues on the application and dismissed the application on the basis of evidence recorded during the proceedings‑‑Contention by the petitioner was that the decree was the result of misrepresentation and fraud‑‑‑Validity‑‑‑Compromise entered into by the counsel on behalf of the party would bind the party‑‑‑Where Wakalatnama was given, the counsel was empowered to compromise the suit without any express authority from his client unless such powers were specifically countermanded by the client‑‑‑Petitioner having failed to prove any fraud and mis-presentation in passing the decree, finding recorded by Trial Court rejecting the application of the petitioner was just and correct and the same suffered from no illegality or material irregularity.

Dr. Ansar Hassan Rizvi v. Syed Mazhar Hussain Zaidi and 3 others 1971 SCMR 634; Mian Ghulam Muhammad v. Maulvi Fazal‑ul‑Haq 1979 CLC 518; Mukhtar Ahmad Farooqi v. Bank of Bahawalpur Ltd., Karachi 1980 CLC 337; Kamal Din and others v. Nazir Ahmad 1987 CLC 1208 and Messrs Azhar Asia Shipping Agency v. Ghafar Corporation PLD 1996 SC 213 ref.

Ch. M. Aslam Zia for Petitioner.

Abdul Wahid Chaudhry for Respondents.

Date of hearing; 15th December, 1999.

MLD 2001 LAHORE HIGH COURT LAHORE 336 #

2001 M L D 336

[Lahore]

Before Ch. Ijaz Ahmad, J

AMIR‑‑‑Petitioner

versus

AHMED, SENIOR CIVIL JUDGE JHANG and 2 others ‑‑‑Respondents

51 of 1998, decided on 10th October, 2000.

(a) Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S.100‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Trial Court had issued warrant of arrest of the petitioner under S.100, Cr.P.C., validity of which had been impugned‑‑‑Trial Court had directed the petitioner to produce the minor in the Court for regulating and implementation of its earlier order‑‑‑Petitioner, however, did not obey such direction of the Court twice‑‑‑High Court keeping in view the conduct of the petitioner declined to exercise its discretion in his favour under the Constitutional jurisdiction and dismissed the Constitutional petition.

Mst. Kausar Parveen's case PLD 1997 Lah. 208 and Mst. Janat Bibi's case PLD 1985 Azad J&K 11 distinguished.

Nawabazada Ronaq Ali's case PLD 1973 SC 236 ‑and Rana Arshad Ali's case 1998 SCMR 1462 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction‑‑‑Nature‑‑‑Constitutional jurisdiction is basically discretionary in character and one who seeks equity must come to the Court with clean hands.

Ch. Muhammad Khan Chadhar for Petitioner.

G.H. Khan for Respondents.

MLD 2001 LAHORE HIGH COURT LAHORE 352 #

2001 M L D 352

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD SANA ULLAH‑‑‑Petitioner

versus

PROVINCE OF PUNJAB and others‑‑‑Respondents

Civil Revisions Nos. 2005, 2006 and 2007 of 1985, heard on 4th October, (a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 21‑‑‑Territorial jurisdiction, objection to‑‑‑When and where to be taken‑‑‑Condition precedent‑‑‑Exception‑‑‑Objection under S.21, C.P,C. has to be taken in the Court of first instance i.e. Trial Court, at the earliest possible opportunity and in case issues are framed then before framing of such issues‑‑‑Such objection, at a subsequent stage can be allowed to be taken‑only where there has been consequent failure of justice‑‑‑Decree passed by a Court having no territorial jurisdiction cannot be set aside unless and until objection is raised in the manner prescribed in S.21, C.P.C.

S.A. Latif v. Nadar Khan PLD 1968 Lah.144 and Hira Lal Patni v. Sri Kali Nath AIR 1962 SC 199 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 12(2) & 21‑‑‑Territorial jurisdiction, objection to‑‑‑Setting aside of decree under the provisions of S.12(2), C.P.C.‑‑‑Petitioner's suit was decreed by the Trial Court and was affirmed by the Lower Appellate Court‑‑Respondents during the pendency of execution application filed application under S.12(2), C.P.C. on the ground that the decree was passed by the Court not having territorial jurisdiction‑‑‑Trial Court allowed the application and set aside the decree, and the order was affirmed by the Lower Appellate Court‑‑‑Validity‑‑‑Where decree passed by the Trial Court was affirmed in appeal, application under S.12(2), C.P.C. was not competent before Civil Judge‑‑‑By setting aside the decree, both the Courts below had proceeded to exercise a jurisdiction not vested in them‑‑‑Orders passed by both the Courts below were set aside and application of respondents filed under S.12(2), C.P.C. was dismissed in circumstances.

Rana Muhammad Sarwar for Petitioner.

Ch. Nizam‑ud‑Din, A.A. ‑G. for Respondent No. 1.

Allah Wasaya Malik for Respondent No.3.

Date of hearing: 4th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 355 #

2001 M L D 355

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. UMAT‑UL‑LATIF‑‑‑Petitioner

versus

Mst. ZAINAB BIBI‑‑‑Respondent

Civil Revision No..2210 of 2000, decided on 4th October, 2000

(a) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 13‑‑‑Talb‑e‑Ishhad‑‑‑Two truthful witnesses, requirement of‑‑‑Failure to produce second witness before Trial Court‑‑‑Effect‑‑Talb‑e‑Ishhad had to be made in the presence of two "truthful" witnesses who were to attest the notice‑‑‑Such notice might not be signed by the witnesses or even by the preemptor but the evidence that such Talb had been made in presence of truthful witnesses could never be dispensed with‑‑‑None‑production of second witness was fatal to the case of pre‑emptor.

Muhammad Ilyas v. Ghulam Muhammad and another 1999 SCMR 958 and Haji Noor Muhammad through his Legal Heirs v. Abdul Ghani 2000 SCMR 329 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.133‑‑‑Veracity of witness‑‑‑Mode and procedure to judge‑‑‑To have his veracity judged the witness should enter the witness‑box, state whatever he has to say on oath and then subject himself to cross‑examination‑‑Examination‑in‑chief and cross‑examination constitute a complete statement made by a witness which enables the Court to judge as to whether the witness is truthful or otherwise.

Ch. Inayatullah for Petitioner.

MLD 2001 LAHORE HIGH COURT LAHORE 360 #

2001 M L D 360

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMAMD BOOTA‑‑‑Appellant

versus

NAZIR AHMED ‑‑‑Respondent

Regular Second Appeal No.46 of 1983, decided on 23rd October, 2000.

(a) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑‑

‑‑‑S. 52‑‑‑Khasra Girdawari‑‑‑Entries‑‑‑Proof‑‑‑Entries in Khasra Girdawari reflect the position existing on the date they were made and could not be related to back position.

Khadim Hussain and others v. Muhammad Nawaz Khan 1981 SCMR 1183 ref.

(b) Words and phrases‑‑‑‑

‑‑‑‑"Year"‑‑‑Meaning.

Wharton's Law Lexicon ref.

‑‑‑‑S. 30‑‑‑General Clauses Act (IX of 1897), S.2(59)‑‑‑West Pakistan General Clauses Act (VI of 1956), S.2(70)‑‑‑Expression "year" ‑‑‑Defined‑‑Limitation for pre‑emption suit‑‑‑Term "year" used in S.30 of Punjab Preemption Act, 1913, means a calendar year, whether it be a year of 365 days or a leap year of 366 days.

(d) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss.21 & 30‑‑‑Pre‑emption suit‑‑‑Limitation‑‑‑Suit was filed within one year of the date of attestation of mutation‑‑Vendee failed to prove his possession over the suit land prior to the date of attestation of mutation‑‑‑Trial Court decreed the suit whereas the Lower Appellate Court dismissed the same as having become time‑barred‑‑‑Validity‑‑‑Lower Appellate Court' having misread the evidence while recording the judgment, High Court found the suit within time and judgment and decree of the Lower Appellate Court were set aside and that of the Trial Court restored.

Ch. Hafeez Ahmad for Appellant.

Ali Ahmad Awan for Respondent.

Date of hearing: 23rd October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 368 #

2001 M L D 368

[Lahore]

Before Maulvi Anwarul Haq, J

SABIR HUSSAIN SHAH through Legal Heirs‑‑‑Petitioner

versus

REHMATULLAH and 2 others‑‑‑Respondents

Civil Revision No. 1101‑D of 1986, heard on 28th September, 2000.

(a) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Suit for declaration‑‑‑Plaintiff's title and possession was supported by Revenue Record‑‑‑Defendant being tenant under the plaintiff was ordered to be ejected from the suit land‑‑‑Order of ejectment was upheld by Collector as well as by Commissioner‑‑‑Defendant resisted the suit and claimed his ownership on the basis of an award which was made rule of the Court‑‑Plaintiff was not a party to arbitration proceedings and the award was passed behind the back of the plaintiff‑‑‑Suit was filed by the plaintiff against the order of the Court whereby award was made rule of the Court‑‑‑Trial Court decreed the suit and appeal filed by the defendant was dismissed by the Lower Appellate Court‑‑‑Validity‑‑‑Where objections against the judgments and decrees of both the Courts below by the defendant were nothing but technicalities, High Court refused to interfere with them as the same had done complete justice between the parties after they had a chance to prove their respective ,pleas by leading evidence‑‑‑Order of Court making award rule of the Court, held ,was illegal, baseless and ineffective upon the rights of the plaintiff in circumstances.

(b) Civil Procedure Code (V of 1908)‑‑---

‑‑‑‑S‑12(2)‑‑‑Specific. Relief Act (I of 1877), S.42‑‑‑Declaration of title‑‑Application under S.12(2), C.P.C.‑‑‑Maintainability‑‑‑Where dispute was regarding title of the suit land, application under S.12(2), C.P.C. was not efficacious remedy as the title could not be decided in such proceedings and the aggrieved party had to approach the Court for declaration of his title.

‑‑‑‑Art. 58‑‑‑Fraud or collusion‑‑‑Onus to prove‑‑‑Where a party alleges that any ejectment order or decree has been delivered by a Court not competent to deliver, or the same has been obtained by fraud, onus to prove the allegation lies upon that party.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Revision‑‑‑Jurisdiction of High Court‑‑‑Jurisdiction of revision is discretionary in nature.

(e) Fraud‑‑‑

‑‑‑‑Onus to prove.

Aftab Iqbal Chaudhary for Petitioner.

Muhammad Asif Ranjha for Respondent No. 1.

Nemo for Respondents Nos.2 and 3.

Date of hearing: 28th September, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 376 #

2001 M L D 376

[Lahore]

Before, Maulvi Anwarul Haq, J

HUMAYOUN and others‑‑‑Appellants

versus

MARATAB ALI and others‑‑‑Respondents

Regular Second Appeal No. 191 of 1981, heard on 4th October, 2000.

Punjab Pre‑emption Act (I of 1913)‑‑‑‑

‑‑‑‑Ss. 4 & 21‑‑‑Pre‑emption suit‑‑‑Right of pre‑emption on the basis of being co‑sharer-‑‑Vendor was sole owner in the entire Khata and the preemptor claimed his co‑ownership on the basis of agreement to sell executed by the vendor in favour of the pre‑emptor regarding some portion of the suit land‑‑‑Trial Court decreed the suit whereas Lower Appellate Court allowed the appeal and dismissed the suit‑‑‑Lower Appellate Court was of the view that the vendor was the sole owner of the entire Khata and transferred specific Killa numbers to the pre‑emptor ‑‑‑Validity‑‑‑If finding of the Lower Appellate Court was supported by the revenue record, pre‑emptor could not be deemed co‑sharer in that Khata‑‑‑Judgment and decree of the Lower Appellate Court being in consonance with sound legal principles was not interfered with.

AIR 1947 Lah. 184; 157 Ind. Cas 964 and Ali Muhammad v. Sher and another 1987 SCMR 207 ref.

Nughman Haider Zaidi for Appellants.

Nemo for Respondents.

Date of hearing: 4th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 382 #

2001 M L D 382

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD NAWAZ and others‑‑‑Petitioners

versus

Mst. GHULAM FATIMA and others‑‑‑Respondents

Civil Revision No.2085 of 1984, heard on 17th October, 2000.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S.4‑‑‑Arbitration‑‑‑Resolution of disputes through arbitration between the parties must exist which needs resolution through arbitration and the same is referred to arbitrator‑‑‑Dispute so resolved if otherwise is found to be in order is made rule of the Court and decree is passed thereon and there is no concept of any arbitration without there being a dispute to be referred to arbitrators.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 4 & 30(c)‑‑‑Arbitration without dispute‑‑‑Validity‑‑‑Where there was no dispute between the parties over which arbitration was required, such arbitration proceedings were declared to be sham in circumstances.

‑‑‑‑O. V, R.16‑‑‑Service of process‑‑‑Procedure‑‑‑Acknowledgement of process by defendant not to be attested by witnesses‑‑‑Where defendant is delivered a copy of summon personally, the serving officer is required under O. VI, R.. 10, C.P.C. to get the signatures of the defendant by way of acknowledgement of service endorsed on the original summons and signatures of the defendant are not required to be attested by witnesses.

(d) Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑O. V, R. 17‑‑‑Service of process‑‑‑Failure to effect service on defendant‑‑‑ Procedure‑‑‑Where the serving officer fails to effect the service and proceeds under the provisions of ON, R. 17, C.P.C. then if a witness is available the serving officer is required to state the name of address of the person by whom the house of addressee has been identified and in whose presence the copy of summon has been affixed on the outer door of the house of the addressee.

(e) Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑O. I, R. 9 & S. 115‑‑‑Misjoinder or non‑joinder of parties‑‑Technicality‑‑‑Suit was dismissed by the Trial Court but was decreed by the First Appellate Court‑‑‑Contention of defendant was that a necessary party was not impleaded by the plaintiff in the appeal‑‑‑Validity‑‑‑Party in question was not even impleaded by the defendant in the revision petition‑‑‑Such defect did not constitute a hurdle in the way of doing complete justice by the First Appellate Court as also in the revision‑-‑High Court directed the defendants to implead that party in the revision and plaintiffs were directed to implead those persons in the appeal and amended memorandum of appeal was directed to be added to the record of the Lower Appellate Court‑‑‑Revision was dismissed with costs throughout in circumstances.

Said Muhammad and others v. M. Sardar and others PLD 1989 SC 532 and Punjab Road Transport Board through its Chairman, Lahore v. Abdul Ghafoor and 6 others PLD 1989 SC 541 ref.

Ch. Ali Muhammad for Petitioner.

Muhammad Farooq Qureshi for Respondents.

Date of hearing: 17th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 392 #

2001 M L D 392

[Lahore]

Before Muhammad Akhtar Shdbbir, J

ABDUL HAYEE‑‑‑Petitioner

versus

WAHID BAKHSH‑‑‑Respondent

Civil Revision No. 115 of 1983, heard on 16th October, 2000.

(a) Punjab Tenancy Act (XVI of 1887)‑‑‑

‑‑‑‑S. 4(5)(8)‑‑‑Landlord and tenant‑‑‑Relationship of‑‑‑Necessary conditions‑‑‑Most important condition of the tenancy and the liability of. the tenant was to pay rent of that land meaning thereby, the share of the crops or lease money to the landlord‑‑‑Where there was no payment of rent or lease money to the landlord, relationship of landlord and tenant would not exist between the parties.

(b) Transfer of Property Act (IV of 1882)‑‑‑‑

‑‑‑‑S. 58‑‑‑Punjab Tenancy Act (XVI of 1887), S. 4(5)‑‑‑"Mortgagee" and "tenant"‑‑‑Distinction‑‑‑Mortgagee had to make payment to mortgagor in advance or to be advanced by way of loan, an existing or future debt‑‑Mortgagee was not to pay share to landlord of the crops sown by him‑‑Payment of share of Batai was the only liability of the tenant‑‑‑Mortgagee was not inherited in the definition of "tenant" accordingly.

‑‑‑‑S. 4‑‑‑Punjab Tenancy Act (XVI of 1887), S.4(5)‑‑‑Pre‑emption‑‑Establishing of superior right‑‑‑Mortgagee's right of pre‑emption as against that of collateral ‑‑‑Pre‑emptor was son of vendee, while vendor was mortgagee of suit‑land‑‑‑Trial Court decreed the suit in favour of the preemptor but the same was dismissed by the Lower Appellate Court‑‑Validity‑‑‑Mortgagee, under the provisions of S.4(5) of Punjab Tenancy Act, 1887, was not inherited in the definition of tenant‑‑‑Vendee who contested the superior right of pre‑emption had to prove his superior or equal right at the time of sale, at the time of institution of suit and at the time of decree of suit ‑‑‑Pre‑emptor had established his superior right as son of the vendor continuously at three different stages as required by law‑‑‑Judgment of the Lower Appellate Court suffered from illegalities and infirmities, therefore, could not sustain in law and was set aside while that of the Trial Court was restored‑‑‑Suit of the pre‑emptor was decreed.

Tahir Mehmood for Petitioner.

Kanwar Akhtar Ali for Respondent.

Date of hearing: 16th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 401 #

MLD 2001 LAHORE HIGH COURT LAHORE 407 #

2001 M L D 407

[Lahore]

Before Karamai Nazir Bhandari, J

Sh. FAZAL HUSSAIN ‑‑‑Appellant

versus

BOARD OF GOVERNORS, DIVISIONAL PUBLIC

HIGH SCHOOL, LYALLPUR‑‑‑Respondent

Letters Patent Appeal No.8 of 1971, decided on 1st December, 2000.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 30‑‑‑Award, setting aside of‑‑‑Incompetent reference‑‑‑Award on an incompetent reference could be set aside under S. 30 of Arbitration Act, 1940, as the same would be "otherwise invalid "‑‑‑Where the arbitration had taken place without intervention of the Court and the objections to the reference had not been examined by the Court on an earlier occasion, such award was invalid.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 20 & 39‑‑‑Arbitration‑‑‑Award‑‑‑Application for arbitration under S.20; Arbitration Act, 1940‑‑‑Order directing filing of agreement and making reference to arbitration‑‑‑Scope‑‑‑Trial Court ordered for filing of agreement of arbitration and the order of the Trial Court was not appealed against‑‑‑Validity‑‑‑Application under S. 20 of Arbitration Act, 1940, was treated as suit and order directing filing of agreement and making reference to arbitration being final, in circumstances, amounted to a decree‑‑‑Such order of the Trial Court allowing agreement to be filed amounted to a "decree" and having not been appealed against became final‑‑‑Trial Court had rightly passed the award in the case.

Riaz Karim Qureshi for Appellant.

Ch. Muhammad Aslam Sindhu for Respondent.

Dates of hearing: 31st October and 3rd November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 414 #

2001MLD414

[Lahore]

Before Muhammad Akhtar Shabbir, J

KHAN MUHAMMAD ‑‑‑Appellant

versus

MAHMOOD and another‑‑‑Respondents

Regular First Appeal No.35 of 2000; decided on 10th October, 2000

Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑Ss. 96, 115 & O. VII, R.11‑‑‑Rejection of plaint‑‑‑Appeal against order passed in revision‑‑‑Trial Court refused to reject the plaint but the Lower Appellate Court in exercise of revisional jurisdiction set aside the order of the Trial Court and rejected the plaint‑‑‑Plaintiff assailed the order of Lower Appellate Court before High Court under the provisions of S. 96, C.P.C.‑‑Validity‑‑‑Appeal to High Court would lie only if the Court by exercising original jurisdiction had passed the judgment‑‑‑Lower Appellate Court had rejected the plaint in exercise of its revisional jurisdiction and not in exercise of its original jurisdiction, appeal to High Court against such judgment was not maintainable‑‑‑Appellant might avail of the alternate remedy under the law‑‑‑High Court, however, directed the office to return the original documents/certified copies of the Annexures to the appellant.

Abdul Razzaq v. Custom Authority 1995 CLC 1435 ref.

Ch. Abdul Ghani for Appellant.

Ch. Muhammad Hussain Jahania fox Respondents

MLD 2001 LAHORE HIGH COURT LAHORE 416 #

2001MLD416

[Lahore]

Before Asif Saeed Khan Khosa and Tassaduq Hussain Mani, JJ

JAVED IQBAL‑‑‑Appellant

versus

Mst. NAZIRAN BEGUM‑‑‑Respondent

Regular First Appeal No.34 of 2000, heard on 28th September, 2000.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 84‑‑‑Comparison of thumb‑impression‑‑‑Jurisdiction of Court‑‑Scope‑‑‑Disputed thumb‑impression can be compared with the admitted one by the Court under the provisions of Art. 84 of Qanun‑e‑Shahadat, 1984.

(b) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Specific performance of agreement to sell‑‑‑Defendant was a lady residing abroad and the plaintiff was initially a tenant in her house‑‑‑Plaintiff on the basis of alleged agreement to sell the house filed the suit‑‑‑Defendant denied execution of the agreement‑‑‑High Court compared the thumbimpression of the defendant on the disputed agreement with the impression on admitted documents‑‑‑Validity‑‑‑Some person other than the defendant had been used and employed by the plaintiff for impersonating the defendant for the purpose of creating evidence regarding the alleged execution of agreement to sell the house in question and regarding receipt of earnest money‑‑‑High Court took no exception to the findings recorded by the Trial Court in circumstances.

Ch. Imdad Ali Khan; Mirza Manzoor Ahmad and Sahibzada Mehboob Ali for Appellant.

Mian Arshad Latif for Respondent.

Date of hearing: 28th September. 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 423 #

2001 M L D 423

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD MALIK and another‑‑‑Petitioners

versus

MUHAMMAD SHARIF and another‑‑‑Respondents

Civil Revision No.502‑D of 1987, heard on 27th October, 2000.

Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑O. XIII, Rr. 1 & 2‑‑‑Taking into consideration certified copies after the close of evidence‑‑‑Dispute as to payment of money in execution proceedings‑‑‑Trial Court accepted the certified copies of execution proceedings as the same proved that in execution of the decree the warrant for attachment was issued and partial amount was paid in the presence of the bailiff while the remaining amount was paid in the Court‑‑‑Suit was decreed by the Trial Court and appeal was dismissed by the Lower Appellate Court‑‑Validity‑‑‑Held, it was proved on the record that the respondent did pay the amount and the Trial Court committed no fault in taking into consideration the certified copies‑‑‑High Court refused to interfere in the judgments and decrees passed by the lower Courts.

Muhammad Anwar Waraich for Petitioners.

M. Akhtar Javed for Respondent No. 1.

Nemo for Respondent No.2.

Date of hearing: 27th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 425 #

2001 M L D 425

[Lahore]

Before Ch. Ijaz Ahmad, J

Mst. MEHMOODA IQBAL‑‑‑Petitioner

versus

UNIVERSITY OF THE PUNJAB through Vice‑Chancellor

Lahore and 3 others‑‑‑Respondents

Writ Petition No.4529 of 2000, decided on 29th November, 2000.

Educational institution‑‑‑

‑‑‑‑ Eligibility of candidate to appear in examination‑‑‑Candidate who had to qualify examination within prescribed five chances having failed to qualify the same within the prescribed chances, was not eligible to appear in subsequent examination.

Akhtar Ali Javed's case 1994 SCMR 532; Nadir Khan and others' case 1995 SCMR 421; Muhammad Hamid Shah's case 1996 SCMR 1101; Rahat Siddiqui's case PLD 1975 Lah. 257 and 1977 SCMR 213 ref.

Muhammad Riaz Lone for Petitioner.

Sh. Saleem, Legal Advisor for Respondents.

MLD 2001 LAHORE HIGH COURT LAHORE 427 #

2001 M L D 427

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. HAMEEDA BEGUM and others‑‑‑Petitioners

versus

KHADIM HUSSAIN and others‑‑‑Respondents

Civil Revision No.517 of 1987, heard on 27th October, 2000.

(a) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S. 42‑‑‑Provisions of S. 42, West Pakistan Land Revenue Act, 1967, are not mandatory in nature.

Muhammad Ishaq and 2 others v. Ghafoor Khan and another 2000 SCMR 519 ref.

(b) Qanune‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 30‑‑‑Wrong admission‑‑‑Binding effect‑‑‑Admission, wrong in fact, was not binding.

Ahmad Khan v. Rasul Shah and others PLD 1975 SC 311 and Barkhurdar v. Muhammad Razzak PLD 1989 SC 749 ref.

‑‑‑‑S. 115‑‑‑Revisional jurisdiction, exercise of‑‑‑Judgment of Trial Court based on proper reading of evidence of the parties on record, was set aside by Appellate Court without properly reading the evidence‑‑‑Judgment of Appellate Court falling within the mischief of S. 115. C.P.C. was set aside by High Court and that of Trial Court was restored.

Sh. Navid Sheharyar for Petitioners.

Abdul Hamid Khan Rana for Respondents.

Date of hearing: 27th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 431 #

2001 M L D 431

[Lahore]

Before Ch. Ijaz Ahmad, J

Mirza NASIR‑and 2 others‑‑‑Petitioners

versus

Mirza HAKIM‑UD‑DIN, MANAGING DIRECTOR, JAHANGIR ENGINEERING COMPANY, GUJRANWALA and 2 others‑‑‑Respondents

Writ Petition No.2454 of 1989, heard on 27th October, 2000.

(a) Conciliation Courts Ordinance (XLIV of 1961)---

‑‑‑‑S. 5(1)(4)‑‑‑West Pakistan Conciliation Courts Rules, 1962, R. 16(b)‑‑Conciliation Court‑‑‑No written agreement was executed between the parties-‑‑Chairman, Conciliation Court failed to provide opportunity to the parties to nominate their representatives and did not issue certificate in accordance with S. 5(4)(b) of the Act read with R. 16(b), West, Pakistan Conciliation Courts Rules, 1962 to the effect that conciliation had failed‑‑Chairman, in circumstances, had wrongly assumed jurisdiction as envisaged by S. 5(4)(a)(b) of the Act.

Shujjat Ali's case 1986 MLD 774; Zameer‑ud‑Din's case PLD 1969 SC 57; Mir Ahmad's case PLD 1974 Pesh. 42; Yasin's case 1985 PCr.LJ 584; Hafeez Ullah Khan's case PLD 1968 Pesh. 190 and Mst. Sayed Khanim's case PLD 1965 Pesh. 149 ref.

(b) Approbate and reprobate‑‑‑

‑‑‑‑ Estoppel and waiver, principle of‑‑‑Applicability‑‑‑Person who himself had participated before a forum, could not be allowed to challenge competency of proceedings before said forum on well‑known principle of estoppel, waiver and acquiescence‑‑‑Such person thus, could not be allowed to approbate, reprobate and would not be heard to contend that the forum did not have the jurisdiction.

Muhammad Hussain's case NLR 1995 Civil Law Judgments 625; Ch. Altaf Hussain's case PLD 1965 SC 68 and Tufail Muhammad's case PLD 1965 SC 269 ref.

‑‑‑‑ He who seeks equity must come with clean hands.

Nawabzada Ronaq Ali's case PLD 1973 SC 236 ref.

Ch. Muhammad Rafique Warraich for Petitioners.

Nemo for Respondents.

Date of hearing: 27th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 436 #

2001 M L D 436

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD TUFAIL and 3 others‑‑‑Appellants.

versus

GHULAM MUSTAFA and 8 others‑‑‑Respondents

Regular Second Appeal No. 1020 of 1978, heard on 11th October, 2000.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 15‑‑‑"Stranger"‑‑‑Meaning‑‑‑Term "stranger" could not be used in its ordinary dictionary meaning, but had to be construed in the context of S. 15, Punjab Pre‑emption Act, 1913‑‑‑If a vendee having a superior or equal right of pre‑emption to that of the pre‑emption joined with him in the sale a person having no such right, then the person so joined would be a stranger.

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 15 & 21‑‑‑Right'of pre‑emption ‑‑‑Rule of sinker, enforcement of‑‑Rule of sinker though not part of Punjab Pre‑emption Act, 1913 (unlike in case of erstwhile North‑West Frontier Province Pre‑emption Act, 1950) was applicable to Punjab and had been consistently enforced by Courts in Punjab Province including High Courts and Supreme Court, while dealing with the cases of Punjab Pre‑emption Act, 1913.

‑‑‑‑Ss. 4, 15 & 21‑‑Superior right of pre‑emption ‑‑‑Proof‑‑‑Pre‑emptor on the basis of evidence on record had proved that he was a collateral of vendors and the vendee could not deny such claim of pre‑emptor, suit was rightly decreed in favour of pre‑emptor.

Sawar Muhammad Sharif and 2 others v. Makhmool and others 1991 SCMR 1419; Ghulam Rasool and another v. Muhammad Latif and 2 others PLD 1993 SC 52 and Ali Muhammad and another v. Muhammad Din and others AIR 1941 Lah. 444 ref.

Ch. Arshad Mehmood and Zafar Iqbal Chaudhry for Appellants.

Ch. Mozammal Khan for Respondents.

Date of hearing: 11th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 440 #

2001 M L D 440

[Lahore]

Before Ch. Ijaz Ahmad, J

KALEEM ULLAH‑‑‑Petitioner

versus

ADDITIONAL DISTRICT JUDGE, and 3 others‑‑‑Respondents

Writ Petition No.5223 of 1988, heard on 24th October, 2000.

Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑S. 11, O. 11, R. 2, O. VII, R. 11 & O. XXIII, R. 1(3)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑‑Res judicata, principle of‑‑‑ Applicability‑ ‑‑Second suit on same cause of action‑‑‑Earlier suit was not withdrawn with permission to file fresh suit‑‑‑Trial Court allowed application of defendant under O. VII, R. 11, C.P.C. and rejected the subsequent plaint‑‑‑District Judge in exercise of revisional jurisdiction dismissed the application filed under O. VII, R. 11, C.P.C.‑‑‑Validity‑‑Second suit on the basis of same cause of action was not maintainable by virtue of O. XXIII, R. 1(3), C.P.C. unless and until the original suit was withdrawn by the plaintiffs with permission to file fresh one‑‑‑Where the plaintiffs did not get such permission, the judgment of the Revisional Court was not sustainable in the eye of law same having been passed in violation of the mandatory provisions of i.e. S. 11, O. 11, R.2 and O.XXIII, R. 1(3), C.P:C.‑‑‑Plaint was rejected in circumstances.

Rabnawaz's case 1990 ALD 411; Jewan's case 1989 CLC 2393; Saeed Ahmad's case 1990 MLD 788; Waheed Ahmad's case 1990 CLC 220 and Mst. Mehrunnisa's case 1990 CLC 1334 ref.

M. A. Aziz for Petitioner.

Nemo for Respondents.

Date of hearing: 24th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 443 #

2001 M L D 443

[Lahore]

Before Maulvi Anwarul Haq, J

Khaleefa GHULAM RASOOL and others‑‑‑Petitioners

versus

Mst. SURRAYA BEGUM and others‑‑‑Respondents

Civil Revision No.371 of 1996, heard on 22nd November, 2000.

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 15‑‑‑Suit for pre‑emption ‑‑‑Suit‑land was agricultural partly being Null Chahi and partly Nehri‑‑‑Suit was resisted contending that Abadi where the land was located was urban area where no custom of pre‑emption existed‑‑Validity‑‑‑Status of land and not area where the land was situated would determine its status for purpose of suit under S.15 of Punjab Pre‑emption Act, 1913 and date of sale would be relevant for that purpose.

Abdul Aziz v. Muhammad Hassan 1996 CLC 1410 ref.

Muhammad Zainul Abidin for Petitioners.

Arsahd Mehmood Chaudhry for Respondents.

Date of hearing: 22nd November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 448 #

2001 M L D 448

[Lahore]

Before Tassaduq Hussain Jilani and Asif Saeed Khan Khosa, JJ

MUHAMMAD UMAR KHAN‑‑‑Appellant

versus

Mst. AZIZ BEGUM and another‑‑‑Respondents

Regular First Appeal No. 131 of 1995, heard on 17th October, 2000.

(a) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 8‑‑‑Contract Act (IX of 1872), S.11‑‑‑Civil Procedure Code (V of 1908), S.96‑‑‑Suit for possession‑‑‑Land owned by plaintiff was alienated by his parents at the time when plaintiff was minor‑‑‑None of the parents of plaintiff got himself/herself appointed as a guardian of land of plaintiff from Guardian Court‑‑‑Parents of plaintiff, in circumstances, could not alienate land of plaintiff (minor) especially when the alienation had not been made out of necessity for the exclusive benefit of the plaintiff.

Karim Bakhsh v. Gul Rehman 1990 CLC 1200; Manzur Hussain Shah and another v. Ghulam Hussain and 22 others PLD 1972 Lah. 855 and Manzoor Hussain and others v. Bhole Khan and others 1991 CLC 640 ref.

(b) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 8‑‑‑Contract Act (IX of 1872), S.11‑‑‑Suit for possession‑‑‑Land of plaintiff was alienated by his parents at the tithe when he was a minor‑‑Plaintiff, on attaining majority, filed suit for possession of said properties but Trial Court raised an adverse inference against the plaintiff on account of his filing the suit at a time when the period of limitation was about to run out‑‑‑Validity‑‑‑Suit having been filed within the prescribed period of limitation, no adverse inference could be drawn against the plaintiff on the basis of filing of suit at a particular stage within the period of limitation.

‑‑‑‑S. 41‑‑‑Transfer by ostensible owner‑‑‑Purchaser had to convince the Court about his bona fide in order to claim protection of the provisions of S.41 of Transfer of Property Act, 1882.

Manzur Hussain Shah and another v. Ghulam Hussain and 22 others PLD 1972 Lah. 855 ref.

Amin‑ud‑Din Khan for Appellant:

Nemo for Respondent No. 1.

Malik Sharif Ahmad for Respondent No.2.

Date of hearing: 17th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 453 #

2001 M L D 453

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUSHTAQ AHMAD‑‑‑Petitioner

versus

MEMBER (JUDICIAL‑I), BOARD OF REVENUE, LAHORE‑‑‑Respondent

Writ Petitions Nos. 10201, 10417 of 1999, 4202 and 2398 of 2000, heard on 14th September, 2000.

Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Allotment of tenancy under Horse Breeding Scheme‑‑Memorandums and statements of conditions issued by the Government from time to time had provided that tenancy would be allotted to the persons only with the condition of keeping a mare for further procreation of animals/horses and that after the death of the original tenant, the tenancy would not be declared open but preference would be given to the heirs of the deceased tenant and no outsider, under the Scheme, would be allotted tenancy if the suitable heir of deceased tenant was available‑‑‑Sons of deceased tenant were entitled to be allotted tenancy under the Scheme‑‑Order of Authority resuming land after death of original tenant and depriving the sons from allotment of tenancy, was declared to be illegal by High Court.

Subedar Muhammad Asghar's case PLD 1976 SC 435 ref.

Ch. Muhammad Hussain Jahanian for Petitioners.

Muhammad Hayee Gillani, A.A.‑G. for Respondent.

Date of hearing: 14th September, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 459 #

2001 M L D 459

[Lahore]

Before Tassaduq Hussain Jilani and Asif Saeed Khan Khosa, JJ

PROVINCE OF PUNJAB through Collector, Muzaffargarh

and 2 others‑‑‑Appellants

versus

MIJHAMMAD RAMZAN and 47 others‑‑‑Respondents

Regular First Appeals Nos. 77 of 1994 and 41 of 1995, heard on 10th October, 2000.

(a) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss. 4, 18, 31(2) & 54‑‑‑Acquisition of land‑‑‑Application to refer matter to the Court‑‑‑Application was objected to on the ground that the amount of compensation determined in the award having been accepted and received by the landowners without any protest, they could not file application by virtue of the provisions of the second proviso to S.31(2) of Land Acquisition Act, 1894‑‑‑Such an objection was not at all taken by the appellant/Authority in their reply to the reference under S.18 of Land Acquisition Act, 1894 before referee Court and no such issue was claimed or framed and no argument in that respect was advanced before the Court‑‑Question whether the landowners had received the amount under the award without protest or not was a question of fact which could not be agitated before or adjudicated by High Court in the first instance in the absence of any material in that regard‑‑‑Objection was rejected in circumstances.

Muhammad Iqbal v. Commissioner, Multan Division, Multan and 2 others 1991 CLC 131; Suresh Chandra Roy v. The Land Acquisition Collector, Chinsurah AIR 1964 Cal. 283; Umar Farooq v. Acquisition Collector, Barinu and 4 others PLD 1975 Pesh. 103 and Province of Punjab and others v. Mufti Muhammad Ishaq and others PLD 1984 Lah. 261 ref.

(b) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss. 4, 18 & 23‑‑‑Acquisition of land‑‑‑Determination of amount of compensation‑‑‑Referee Court had enhanced rate of compensation on the basis of market price of the land in question as well as sales taken place in the area‑‑‑Evidence produced by landowners was not rebutted by the Authorities‑‑‑Amount of compensation as determined by Referee Court on the basis of evidence on record could not be interfered with.

‑‑‑‑Ss. 18 & 54‑‑‑Appeal‑‑‑Maintainability‑‑‑Appeal was objected to on the ground that WAPDA could not file an appeal before High Court against orders passed by Civil Court/Referee Court‑‑‑Province of Punjab through Collector as well as the Land Acquisition Collector, were also co‑appellants of WAPDA in the appeal‑‑‑Even if WAPDA was taken out of the array of appellants, appeals had been competently filed by the Province of Punjab and the Land Acquisition Collector.

Water and Power Development Authority v. Ghulab Din 1988 CLC 1979; Muhammad , Mushtaq Ahmed Khan and 2 others v. The Assistant Commissioner, Sialkot and 3 others PLD 1983 Lah. 178; Pir Khan through his Legal Heirs v. Military Estate Officer, Abbottahad and others PLD 1987 SC 485 and Rehman Khan and 54 others v. Military Estate Officer and 2 others 1988 SCMR 1160 ref.

Masood Akhtar Government Pleader.

Muhammad Ashraf Sheikh and Malik Muhammad Rafique Rajwana for Appellants.

Ch. Muhammad Ashraf Kamboh for Respondents.

Date of hearing: 10th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 467 #

2001 M L D 467

[Lahore]

Before Muhammad Nawaz Abbasi, J

Mst. RIZWANA IBRAR‑‑‑Petitioner

versus

AAMAR KHAN and another‑‑‑Respondents

Criminal Miscellaneous No. 5284/CB of 2000, decided on 17th October, 2000.

(a) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(5)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10/11‑‑‑Bail, cancellation of‑‑‑Allegations of abduction and Zinabil‑Jabr‑‑‑--Accused had claimed that abductee had entered into a marriage contract with him and that his suit for restitution of conjugal right was pending adjudication before Family Court ‑‑‑Abductee who had also filed suit for jactitation of marriage against accused, had totally denied claim of accused in her statements made under Ss‑161 & 164, Cr.P:C.‑‑‑Nikahnama on basis of which the plea of valid marriage was taken by accused, being subject to scrutiny, same would not undo statements of abductee and could not be allowed to be used as shield to the commission of an offence of abduction and Zina‑bil‑Jabr‑‑‑Statements of abductee could not be dislodged unless it was established at the trial that execution of alleged Nikahnama was wilful‑‑‑Mere pendency of suit before Family Court or plea of marriage would not be helpful to the accused to extend him the benefit of such pleas at bail stage.

Ghulam Ghaus v. Muhammad Amin and others 1997 SCMR 37; Pathan and others v. The State 1993 PCr.LJ 1879 and Muhammad Tariq v. The State 1994 PCr.LJ 1879 ref.

(b) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Bail, grant of‑‑‑Discretion of Court‑‑‑Provision of subsection (2) of S.497, Cr.P.C. was not to be stretched in favour of an accused unless it was found in the investigation/inquiry that he was not guilty of an offence with which he was being charged.

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)(3)‑‑‑Bail, grant of‑‑Discretion of Court‑‑‑Plea of valid marriage could be a consideration for exercise of discretion for grant of bail for an offence under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, as the element of consent could favour the offender, but in case of an offence under S. 10(3) of the Ordinance no such plea of consent implied or express, would be available and relevant for grant of bail.

Sahibzada Riaz Anwar for Petitioner.

M. Akram Qureshi for Respondents.

MLD 2001 LAHORE HIGH COURT LAHORE 472 #

2001 M L D 472

[Lahore]

Before Dr. Munir Ahmad Mughal, J

MUHAMMAD YOUNAS KHAN‑‑‑Petitioner

versus

SENIOR SUPERINTENDENT OF POLICE, SIALKOT and 8 others‑‑‑Respondents

Writ Petition No. 14907 of 2000, decided on 8th December, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 154 & 173‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑ Constitutional petition ‑‑‑F.I.R., registration of ‑‑‑Investigation‑‑‑Procedure‑‑ Investigation before registration of F. I. R.‑‑‑Validity‑‑‑Station House Officer is bound to record version of the complainant at verbatim‑‑‑Where from the version no cognizable case is made out, the same is informed or notified to the informant so that he may seek his remedy before the competent Court‑‑‑If cognizable case is made out from the contents of the F.I.R. the Station House Officer has to take further proceedings in accordance with law‑‑ During investigation, if the F.I.R. is found false, the matter is to be presented before the competent Magistrate to order the cancellation of the same‑‑‑Where the contents of F.I.R. are found true, a report under S. 173, Cr.P.C. is to be submitted to the competent Court within a fortnight‑‑‑Police having not acted in accordance with law, High Court directed the police to record the statement of the petitioner at verbatim and to proceed further in accordance with law.

Ch. Muhammad Yaqoob Sabir for Petitioner.

Sh. Shahid Hussain, Asstt. A.‑G. for Respondents.

MLD 2001 LAHORE HIGH COURT LAHORE 477 #

2001 M L D 477

[Lahore]

Before M. Javed Buttur and Ali Nawaz Chowhan, JJ

MUHAMMAD SAEED‑‑‑Appellant

versus

TIDE STATE‑‑‑Respondent

Criminal Appeal No.574 and Criminal Revision No. 422 of 1990, heard on 22nd November, 2000.

(a) Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S. 103‑‑‑Search to be made in presence of witnesses‑‑‑Dispensation of the provision‑‑‑Investigating Officer, no doubt, is duty bound to comply with the requirements of S. 103, Cr.P.C. and to make efforts for the attestation of the recovery memos. by involving members of the locality in the recovery proceedings, but keeping in view the tendency of people in not volunteering to become witness,' Courts do not insist on strict compliance of the provisions of S.103, Cr.P.C. and examine the other evidence produced by the prosecution to prove recovery with care and caution‑‑‑Adoption of such a course is permissible and the evidence of police official or Investigating Officer is to be accepted like other prosecution witnesses and cannot be discarded merely because the same has been given by a police officer and it would be accepted if it does not otherwise suffer from any infirmity.

Mirza Shah v. The State 1992 SCMR 1475 and Mushtaq Ahmad v. The State PLD 1996 SC 574 rel.

(b) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S. 302‑‑‑Oaths Act (X of 1873), S.13‑‑‑Appreciation of evidence‑‑Complainant and the police officer were the witnesses of the recovery and there was no reason to disbelieve them‑‑‑Prosecution had complied with all the formalities in proving the post‑mortem report and the injuries on the person of the deceased had thus been proved‑‑‑Irregularity of recording the statements of prosecution witnesses on solemn affirmation and not on the oath prescribed by the High Court was neither pointed out nor. objected to by anybody at the trial stage in the year 1990 and retrial of the case was not to be ordered after ten years merely due to the irregularity of administration of oath by the Trial Court which was curable under S.13 of the Oaths Act, 1873‑‑‑Complainant who was living in the house of the deceased was a natural witness and the account of occurrence narrated by him was straightforward, consistent and confidence inspiring which was ,fully corroborated by the medical evidence qua the number of injuries, nature of injuries and the time of infliction of injuries on the deceased‑‑‑F. I. R. had been promptly lodged‑‑‑ "Chhuri" recovered from the accused was found to be stained with human blood as per reports of the Chemical Examiner and the Serologist‑‑‑Complainant had no enmity or motive for false implication of accused and his statement could not be discarded merely because of his close relationship with the deceased‑‑‑Occurrence had taken place in day time and there was no question of substitution‑‑‑Conviction and sentence of accused were upheld in circumstances.

Mirza Shah v. The State 1992 SCMR 1475; Mushtaq Ahmad v. The State PLD 1996 SC 574; Muhammad Hussain and another v. The State 1993 SCMR 1614; Sajjad Ahmad and another v. The State 1992 SCMR 408; State through Advocate‑General, Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1; Qazi Sirajud Din v. Misbahul Islam and 3 others PLD 1977 SC 14 and Khuda Bukhsh v. The State 1996 PCr.LJ 1967 ref.

‑‑‑‑S. 302‑‑‑Oaths Act (X of 1873), S.13‑‑‑Criminal trial‑‑‑Recording of evidence of prosecution witnesses without oath‑‑‑Effect‑‑‑Trial Court had not recorded the evidence of prosecution witnesses on oath‑‑‑Such flow was not fatal to vitiate the whole trial, but was an irregularity which was curable under S. 13 of the Oaths Act, 1873.

Sajjad Ahmad and another v. The State 1992 SCMR 408 ref.

(d) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S. 302‑‑‑Criminal trial‑‑‑Production, of evidence‑‑‑Prosecution is not under an obligation to produce each and every eye‑witness of the occurrence at the trial.

(e) Witness‑‑‑

‑‑‑‑ Child witness‑‑‑Evidence of child witness has to be assessed with care and caution and it is not safe to rely upon evidence of child witness unless corroborated.

Malik Muhammad Nusrat Mahal for Appellant.

A. H. Masood for the State. Nemo for the Complainant.

Date of hearing: 22nd November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 488 #

2001 M L D 488

[Lahore]

Before Sayed Zahid Hussain, J

Maj. MUHAMMAD NAWAZ KHAN ‑‑‑Petitioner

versus

JAMAAT‑E-AHMADIA through Amir Jaranwala and 5, others‑Respondents

.Writ Petition ‑No. 3613 of 1984, decided on 14th December, 2000.

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑ ‑‑

‑‑‑‑S. 2(4)‑‑‑Expression "house" ‑‑‑Area/land attached with house‑‑Entitlement‑‑‑Extent to which a person is entitled to area in addition to main house is three times the plinth area.

Muhammad Aslam Khan v. Chief Settlement Commissioner 1972 SCMR 545; Muhammad Bashir v. Settlement and Rehabilitation Commissioner PLD 1983 SC 143 and Muhammad Din and others v. Ghulam Muhammad Naseem Sindhu and others PLD 1991 SC 1 ref.

(b) Displaced Person (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑‑‑

‑‑‑‑S. 2(4)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Cancellation of excess land‑‑‑Petitioner was allotted bungalow under Displaced Persons (Compensation and Rehabilitation) Act, 1958‑‑ Alongwith the bungalow area four times the plinth area was in possession of the petitioner‑‑‑Settlement Authorities having found the area in excess, ordered for correction of the area ‑‑‑Validity‑‑‑Petitioner could not lay claim over and above three times the plinth area of the house transferred to him by virtue of transfer documents issued by the Settlement Department‑‑‑Area transferred in excess of entitlement was not sanctified by law and the same had to be dealt in accordance with law‑‑‑Settlement Authorities had rightly passed the order to carry out measurement of the area and to work out the surplus for disposal in accordance with law‑‑‑No illegality with the order of the Authorities was found so as to warrant interference by High Court in equitable jurisdiction under Art. 199 of the Constitution.

Iftikhar Ahmed Mian for Petitioner:

Ch. Aamar Rehman for Respondent No. 1.

Nemo for the Remaining Respondents.

Date of hearing: 8th December, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 500 #

2001 M L D 500

[Lahore]

Before Muhammad Nawaz Abbasi, J

Messrs MAPLE LEAF CEMENT FACTORY LIMITED

through Director and 2 others‑‑‑Petitioners

versus

THE FEDERATION OF PAKISTAN through Secretary

of Finance, Government of Pakistan, Islamabad and 4 others‑‑‑Respondents

Writ Petition No. 1261 of 2000, decided on 28th August, 2000

(a) Constitution of Pakistan (1973)‑‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Judicial review‑‑Scope‑‑‑Abuse of power and fraud on statute‑‑‑Where the power conferred on Authority is exercised in bad faith or for any purpose against the, concept of law, act of such Authority can be struck down by the High Court which is equipped with power of judicial review under the Constitution‑‑‑Such power of judicial review is exercised within the Constitutional limits and care is taken not to encroach upon the domain of Constitutional authority of the Government.

(b) Constitution of Pakistan (1973)‑‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Judicial review ‑‑‑Scope‑‑Restraining public functionaries from discharging of their lawful business/duties‑‑‑Power of judicial review can be exercised by the superior Courts against act done, proceedings taken or order passed by a public functionary but the same cannot be exercised in the form of a prohibitory order restraining the Government or its functionaries from discharging their lawful business.

‑‑‑‑Sixth Sched.‑‑‑Notification S.R.O. No.580(1)/91, dated 27‑6‑1991‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Maintainability‑‑‑Apprehension of withdrawal of exemptions of sales tax‑‑Petitioners were running cement plants and apprehended withdrawal of exemptions extended to them under the Notification S.R.O. No.580(1)/91, dated 27‑6‑1991, resulting ‑in reduction of profit and private respondents with the expectation of more gain in business pleaded their individual interest‑‑‑Validity‑‑‑Gain and loss during the course of business due to act of Government done in public interest in good faith, would not be economic injustice‑‑‑Constitutional petition having been filed without any substantial cause of action was not maintainable.

Jibendra Kishore Achharyya Chaudhry and 58 others v. The Province of the East Pakistan PLD 1957 SC (Pak.) 9; Waris Meah v. The State PLD 1957 SC (Pak.) 157; Government of Baluchistan v. Aziz Ullah Memon PLD 1993 SC 341; Collector of Customs, Excise and Sales Tax, Peshawar and 3 others v. Messrs. Flying Kraft Paper Mills (Pvt.) Limited 1998 SCMR 1041; Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139; Ahmad Din and others v. Faiz Ali and others PLD 1954 Lah. 414; Messrs Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh and others AIR 1954 SC 224; Fasih Chaudhary v. Director General. Doordarshan and others AIR 1989 SC 157; Jugal Kishore v. State of Maharashtra and others AIR 1989 SC 159; Richpal Singh and another v. Raj Singh and others AIR 1981 SC 1960 and Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 6 others PLD 1997 SC 582 ref.

Raja Muhammad Akram and Nauman Akram Raja for Petitioners.

Tanveer Bashir Ansari, Dy.A.‑G. for Respondents No. 1.

Farhat Nawaz Lodhi for the CBR.

Raja Muhammad Bashir for Respondent No.4.

Date of hearing: 28th August, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 518 #

2001 M L D 518

[Lahore]

Before Iftikhar Hussain Chaudhary and Zafar Pasha Chaudhary, JJ

ABDUL KARIM and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 375 and Murder Reference No.134 of 1994 and Criminal Revision No. 82 of 1995, heard on 15th May, 2000.

Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑Ss. 302(b)/34‑‑‑Appreciation of evidence ‑‑‑F.I.R. had been registered belatedly and that version was incorporated in the inquest report at a later stage which had made the whole prosecution case shaky and doubtful‑‑Complainant and other eye‑witnesses were not found to have witnessed the incident‑‑‑Accused had been involved in the case on account of longstanding enmity between the parties‑‑‑Medical evidence had belied the ocular account furnished by the interested and inimical witnesses‑‑‑Case of accused was not distinguishable from that of acquitted co‑accused‑‑‑Court was not required to solve mysteries and it had to come to the conclusion that from the evidence on the file inference legally and logically deduced had sufficiently connected the accused with the commission of the offence‑‑‑Prosecution case was flawed in numerous respects and the accused were not connected with the crime on the basis of evidence led at the trial‑‑‑Accused were acquitted in circumstances.

Kh. Sultan Ahmad for Appellants.

M.A. Zafar for the Complainant.

M. Azam for the State.

Date of hearing: 15th May, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 530 #

2001 M L D 530

[Lahore]

Before Maulvi Anwarul Haq, J

Messrs URDU DIGEST PRINTERS REGISTERED

through Managing Director‑‑‑Petitioner

versus

Hakim MUHAMMAD IDRIS and 3 others‑‑‑Respondents

Writ Petitions Nos. 536 of 1987 and 2430 of 1983., heard on 22nd November, 2000.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975), S.8‑‑‑Evacuee trust property ‑‑‑Ejectment application by a private person‑‑‑ Competence‑‑‑Evacuee Trust Property Board had been declared to be the owner of property in question by Supreme Court by its decision ‑‑‑Ejectment petition tiled against occupants of said property by private persons assuming themselves to be owners of said property, was incompetent.

Evacuee Trust Property Board, Lahore and another v. Syed Abdus Saleem and others 1990 SCMR 143; Syed Abdus Saleem and 153 others v. The Chairman, Evacuee Property Trust Board,. Lahore and another PLD 1975 Lah. 960; Secretary, District Evacuee Trust Property v. Qazi Habibullah and 2 others PLD 1991 SC 586; Province of Punjab through Education Secretary and another v. Haji Abdul Ghani PLD 1985 SC 1; K.S.M. Gurusawami Nadar v. N.G. Ranganathan AIR 1954 Mad. 402; Kalimullah v. Amin Hazin and others 1976 SCMR 77 and Muhammad Anwar through Legal Representatives v. Abdul Shakoor 1982 SCMR 1120 ref

Asadullah Siddiqui for Petitioner.

Ch. Muhammad Younas for Respondents Nos. l and 2.

Ch. Fazal‑e‑Hussain for the Evacuee Trust Property Board.

Date of hearing: 22nd November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 539 #

2001 M L D 539

[Lahore]

Before Maulvi Anwarul Haq, J

MALIK TALKIES DISTRIBUTORS through Malik Bari

and others‑‑‑Appellants

versus

Kh. MEHBOOB ELLAHI and others‑‑‑Respondents

Second Appeal from Order No. 56 of 1997, heard on 24th November, 2000.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss. 5‑A & 15‑‑‑Default in payment of rent ‑‑‑Ejectment of tenants was sought on the ground that they had not paid statutory increase in rent under S.5‑A, West Pakistan Urban Rent Restriction Ordinance, 1959‑‑‑Tenants contended that neither they were aware of the statutory provisions nor landlords ever demanded rent with said increase‑‑‑Tenants immediately after service of notice in ejectment petition tendered rent to the landlords with statutory increase and on refusal of landlords to receive the same they deposited the rent in the Court‑‑‑Validity‑‑‑Ignorance of law as pleaded by tenants though was no excuse, but absence of demand by 'the landlords over a period of several years for statutory increase in rent and prompt efforts on the part of the tenants to pay or deposit the increased rent in Court, should have been considered by forums below‑‑‑Tenants having not committed wilful default in payment of amount of statutory increase in rent, ejectment orders passed against tenant, were set aside by High Court.

National Development Finance Corporation, Shahrah‑e‑Quaid‑e-Azam, Lahore v. Shaikh Naseem‑ud‑Din and 4 others PLD 1997 SC 564 and Muhammad Irfan v. Muhammad Zahid Hussain Anjum 2000 SCMR 207 ref.

Muhammad Saeed Mirza for Appellants.

Shoaib Saeed for Respondents.

Date of hearing: 24th November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 542 #

2001 M L D 542

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD SHARIF and another‑‑‑Petitioners

versus

MUHAMMAD DIN through Legal Heirs and 2 others‑‑‑Respondents

Writ Petition No. 2433 of 1990, heard on 1st December, 2000, (a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Preamble‑‑‑Provisions of law of pre‑emption must strictly be complied with to attract its rigour and even technicalities were relevant‑‑‑Person who wished to avail right under pre‑emption law, was required to be vigilant and to see that he had complied with all the conditions imposed upon him.

Khurshid Akbar's case 1982 SCMR 824; Bhai Khan's case 1986 SCMR 849; Bashir Ahmed's case 1998 MLD 1789; Ishtiaq Ahmad's case 1976 SCMR 420; Muhammad Shamoon's case PLD 1984 SC (AJ&K) 94; Muhammad Nawaz's case 1995 SCMR 105; Kisan Dewaloo Mali's case AIR 1939 Nag. 279; Shah Wali's case PLD 1966 SC 893 and Haji Nawab's case 1976 SCMR 502 ref.

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 21 & 25‑‑‑Civil Procedure Code (V of 1908), O. XX, R. 14(1)(a)‑‑Passing of title to successful pre‑emptor ‑‑‑Title would pass to successful preemptor by virtue of O.XX, R.14(1)(a), C.P.C. only when full sale price of suit land was deposited in accordance with the judgment and decree of the Court.

Bhai Khan's case 1986 SCMR 846 ref.

‑‑‑‑Ss. 21 & 25‑‑‑Civil Procedure Code (V of 1908), S. 96(3)‑‑‑Suit for pre emption ‑‑‑Fixation and payment of price of suit land with consent of parties‑‑‑ Appeal‑‑‑Competence‑‑‑Issue with regard to fixation and payment of price of suit land having been decided by Trial Court with consent of parties, plaintiff had no right to file appeal by virtue of S. 96(3), C.P.C. against said issue.

Salim Ahmad's case 1974 SCMR 224; Muhammad Akbar's case PLD 1970 SC 241 and Mehr Din's case PLD 1970 SC 311 ref.

Ch. Arshad Mehmood for Petitioners.

Malik Mujeeb‑ur‑Rehman for Respondents

Date of hearing: 1st December, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 548 #

2001 M L D 548

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD RASHID and 4 others‑‑‑‑Petitioners

Versus

MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB and 7 others‑‑‑‑Respondents

Writ Petition No.2045 of 1986, heard on 18th October, 2000.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 21‑‑‑West Pakistan Land Revenue Act (XVII of 1967), Ss. 161 & 164‑‑‑Pre‑emption suit‑‑‑Suit was decreed by Trial Court which was challenged in appeal by defendant‑‑‑Appellate Court suspended the operation of decree ‑‑‑Pre‑emptor during pendency of said proceedings filed application before Tehsildar for recovery of amount for purchase of produce which was accepted‑‑‑Validity ‑‑Appeal being pending before Appellate Court in which operation of decree was suspended, application filed by preemptor was not competent and orders passed by Revenue Authorities were not sustainable in the eye of law.

Lachman Singh's case AIR 1930 Lah. 273; F.A. Khan's case PLD 1964 SC 520 and Maulvi Abdul Qayyum's case 1992 SCMR 241 ref.

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 4‑‑‑Right of pre‑emption ‑‑‑Nature‑‑‑Pre‑emption was right of substitution of pre‑emptor in place of vendee.

Khair Din's case 1987 SCMR 1131; Akram's case PLD 1984 SC 334; Malik Hussain's case PLD 1970 SC 299 and Abdul Karim's case PLD 1967 SC 411 ref.

‑‑‑‑Ss.21 & 25‑‑‑Pre‑emption suit ‑‑‑Pre‑emptor would become owner of suit property from the date of payment of the pre‑emption money.

Akram's case PLD 1984 SC 334 and Dr. Niaz Muhammad Manan's case 1988 SCMR 1016 ref.

(d) Constitution of Pakistan (1973)‑‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑High Court had ample jurisdiction to take into consideration the subsequent events.

Nasir Mantal's case 1990 CLC 1069 ref.

(e) Constitution of Pakistan (1973)‑‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Scope‑‑‑Substantial justice having been done between the parties, High Court declined to exercise its discretion in favour of the petitioner.

Nawabzada Ronaq Ali's case PLD 1973 SC 236 ref.

Mian Jehanzeb Wahla for Petitioners.

M. Sharif Khokhar for Respondents.

Date of hearing: 18th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 553 #

2001MLD553

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD RAMZAN and others‑‑‑‑Petitioners

versus

JAN MUHAMMAD and others‑‑‑‑Respondents

Civil Revisions Nos.251 and 252 of 1988, heard on 24th November, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.12‑‑‑Transfer of Property Act (IV of 1882), S. 53‑A‑‑‑Suit for specific performance of agreement‑‑‑Plaintiff had proved that defendant who was his brother had agreed to sell half of his share in the suit property to him and after receiving consideration had delivered possession of the house to him‑‑Trial Court decreed suit, but Appellate Court reversed finding of Trial Court holding that agreement which was a sale‑deed being not a registered document was not admissible in evidence‑‑‑Plaintiff, in performance of his part of agreement, had paid settled consideration to defendant and plaintiff was in possession of . suit property‑‑‑Effect‑‑‑On equitable principle underlying in S.53‑A of Transfer of Property Act, 1882, plaintiff even in absence of registration of agreement would be fully entitled to protect his possession against defendant‑‑‑Execution of document of sale and payment thereunder having stood proved, Appellate Court could not non‑suit the plaintiff on a mere technicality‑‑‑Finding of Appellate Court was reversed and that of Trial Court was restored by High Court.

Muhammad Siddique v. Muhammad Akram 2000 SCMR 533 ref.

Asmat Kamal Khan for Petitioners. S.M. Tayyib for Respondents.

Date of hearing: 24th November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 557 #

2001 M L D 557

[Lahore]

Before Maulvi Anwarul Haq, J

REHMAT ALI ‑‑‑‑Petitioner

versus

HASSAN MUHAMMAD‑‑‑‑ Respondent

Civil Revision No. 1149 of 1986; heard on 17th November, 2000.

Punjab Pre‑emption Act (I of 1913)‑‑‑‑

‑‑‑‑Ss. 4, 15, 21 & 28‑‑‑Land Reforms Regulation 1972, (M.L.R. 115), para. 25‑‑‑Suit for pre‑emption ‑‑‑Superior right of rival pre‑emptor ‑‑‑Suit filed by petitioners on ground of being owner in estate was decreed by Civil Court whereas suit by respondent on ground of non‑occupancy tenant was decreed by the Collector‑‑‑Petitioner did not deny status of respondent as tenant of the suit‑land‑‑‑Appellate Court recorded finding that respondent who proved to be tenant of suit‑land, had superior right of pre‑emption as against the petitioner‑‑‑Finding of Appellate Court being just and not suffering from defect, could not be interfered with in revisional jurisdiction of High Court.

Noor Ahmad v. Assistant Commissioner/Collector, Gujranwala and 5 others PLD 1992 SC 573; Malhi Khan v. Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others PLD 1991 SC 824; Muhammad Khan v. Abdul Khaliq Khan PLD 1981 SC 153 and Syed Phul Shah v. Muhammad Hussain and 10 others PLD 1991 SC 1051 ref.

Mian Nisar Ahmed for Petitioner.

Khurshid Ahmad Chaudhry for Respondent.

Date of hearing: 17th November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 563 #

2001 M L D 563

[Lahore]

Before Syed Jamshed Ali, J

Ch. HAKIM ALI ‑‑‑‑Appellant

versus

SULTAN KHAN and 3 others‑‑‑‑Respondents

Regular Second Appeal, No. 569 of 1980, heard on 26th April, 2000.

(a) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S.54‑‑‑Sale‑‑‑Mutation, non‑attestation of‑‑‑Effect‑‑‑Whole consideration amount was paid to the vendor and possession was also handed over to the vendee ‑‑‑Mutation was neither entered nor attested‑‑‑Validity‑‑‑Such transaction was a perfected sale and merely because the promised mutation was not entered and attested, the same did not dilute its effect as a sale.

Abdul Aziz and others v. Deputy Commissioner/Collector, Rahimyar Khan and others PLD 1981 Lah. 457 ref.

(b) Transfer of Property Act (IV of 1882)‑‑‑‑

‑‑‑‑S.54‑‑‑Sale‑‑‑Scope‑‑‑Wherc entire sale consideration was paid by the vendee who was already in possession of the land, nothing was required to perfect the sale.

‑‑‑‑S.54‑‑‑Registration Act (XVI of 1908), S. 17‑‑‑Oral sale, non‑registration of‑‑‑Plaintiff assailed sale of agriculture land situated in rural area which was orally sold and the sale was not registered as required under the provisions of S.54 of Transfer of Property Act, 1882‑‑Suit was decreed by Trial Court but the same was dismissed by Lower Appellate Court on appeal by respondents‑‑‑Validity‑‑‑Provisions of S. 54 of Transfer of Property Act, 1882, were not applicable to agriculture lands in rural areas of Punjab‑‑Agreement only affirming oral sale of such land was not required to be registered under S. 17 of Registration Act, 1908‑‑‑Appeal was dismissed accordingly.

Pir Bakhsh v. Budhoo PLD 1978 BJ 86; Chhappar Khan and another v. The Chief Land Comnussioner, West Pakistan, Lahore and 3 others PLD 1976 Kar. 747; Hafiz Manzoor Ahmed v. Muhammad Azam 1988 MLD '2248; Tasawar Hussain and 3 others v. Walayat Hussain and 2 others 1988 CLC 1608; Mehmood Hassan v. Mst. Sheeran Bano 1990 MLD 1107; Mst. Sahar Begum v. Salahuddin 1991 MLD 1594; Ghulam Haider v. Allah Bakhsh and others 1991 CLC 1622; Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411 and Abdul Aziz and others v. Deputy Commissioner/Collector, Rahimyar Khan and others PLD 1981 Lah. 457 ref.

Muhammad Ramzan Ch. for Appellant.

M.A. Zafar for Respondents.

Date of hearing: 26th April, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 566 #

2001 M L D 566

[Lahore]

Before Zafar Pasha Chaudhary, J

TALIB HUSSAIN ‑‑‑‑Petitioner

versus

THE STATE‑‑‑‑Respondent

Criminal Miscellaneous No.2132‑B of 2000, decided on 12th January, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/34‑‑‑Bail, grant of‑‑‑Case of further inquiry‑‑‑ Blind murder‑‑‑Benefit of doubt‑‑‑Extra judicial confession‑‑‑Accused was arrested on the statement of prosecution witnesses wherein it was stated that the accused had made extra‑judicial confession before them‑‑‑Validity‑‑‑Such confession, unless corroborated by some evidence would be extremely insufficient to warrant conviction‑‑‑Case of the accused was one of further inquiry‑‑‑Benefit of doubt was to be extended to accused even at bail stage‑‑‑Bail was allowed in circumstances.

Ch. Abdul Ghaffar for Petitioner.

Miss Nosheen Taskeen for the State.

MLD 2001 LAHORE HIGH COURT LAHORE 568 #

2001 M L D 568

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD JAMIL‑‑‑Petitioner

versus

MUNICIPAL COMMITTEE, MANDI BAHAUDDIN through Chairman and another‑‑‑Respondents

Civil Miscellaneous No. 1‑C of 1999 in Civil Revision No. 459 of 1996 and Civil Miscellaneous No.2‑C of 1999 in Civil Revision No. 460 of 1995, decided on 1st November, 2000.

(a) Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑O. III, R. 4‑‑‑Appointment and authority of Advocate‑‑‑No person would "act" for any person in any Court unless he was appointed for the purpose by a document in writing signed by the appointing person‑‑‑Term "act" was very wide and would include every conceivable action with relation to the proceedings in which Advocate had been authorised to act by a party‑‑Counsel had an implied authority to do whatever he considered best for his client and such acts were binding upon client unless express limitations had been imposed upon his authority‑‑‑In the absence of any provision to the contrary in the document appointing an Advocate to act, he could withdraw or compromise or settle the dispute.

Dr. Ansar Hassan Rizvi v. Syed Mazahir Hussain Zaidi and 3 others 1971 SCMR 634; Sourendra Nath Mitra and others v. Tarubala Dasi AIR 1930 PC 158 and Mst. Noor Jahan v. Azmat Hussain Farooqi and another 1992 SCMR 876 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑O. III, RA(a)‑‑‑Word "act" used in O. III, RA(a), C.P.C. elaborated.

Rana Muhammad Sarwar for Petitioner.

Shahzeb Masood for Respondents

MLD 2001 LAHORE HIGH COURT LAHORE 570 #

2001 M L D 570

[Lahore]

Before Ch. Ijaz Ahmad, J

NATIONAL HIGHWAY AUTHORITY, MINISTRY OF

COMMUNICATION, GOVERNMENT OF PAKISTAN through

General Manager (LM&EA)‑‑‑Petitioner

versus

THE SECRETARY TO GOVERNMENT OF THE

PUNJAB, INDUSTRIES AND MINERAL DEVELOPMENT

DEPARTMENT, LAHORE and another‑‑‑Respondents

Writ Petition No.23391 of 1997, heard on 1st November, 2000.

Constitution of Pakistan (1973)‑‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Rate of royalty existing at time of execution of agreement between the parties was increased by respondent‑Authority arbitrarily without notice to the petitioner‑‑Petitioner had challenged the increase in royalty contending that vested rights having been accrued to petitioner on basis of agreement, respondent had no authority to increase the rate of royalty existing at the time the execution of the agreement‑‑‑Validity‑‑‑Agreement arrived at between the parties having provided that rate of royalty was subject to revision by Government from time to time, petitioner could not challenge the increase‑‑‑Constitutional petition having no merits was dismissed.

Al‑Samrez Enterprises' case 1986 SCMR 1917; Commissioner of Sales Tax, West Karachi's case PLD 1974 SC 180; The Chief Land Commissioner, Sindh and others' case 1988 SCMR 715; Ahtned Daud Khan's case PLD 1971 Lah. 462; Pakistan Mineral Development Department Corporation's case PLD 1986 Quetta 181 and Ch. Muhammad Shafi's case PLD 1976 SC 254 ref.

Jehanzeb Khan Bharwana for Petitioner.

Kh. Saeed‑uz‑Zafar, Dy. A.‑G. for Respondent.

Date of hearing: 1st November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 573 #

2001 M L D 573

[Lahore]

Before Ch. Ijaz Ahmad, J

SHAHID BASHIR---Petitioner

versus

CHAIRMAN, PUNJAB BOARD OF TECHNICAL

EDUCATION and 2 others---Respondents

Writ Petition No. 10928 of 2000, decided on 23rd October, 2000.

Constitution of Pakistan (1973)--

----Art.199---Constitutional Petition---Maintainability---Petitioner had failed to point out that the respondents-Authorities had violated any rules and regulations framed by them on the subject---Constitutional petition was not maintainable if the petitioner had not alleged any malice against the respondents.

Rehat Siddiqui's case PLD 1975 Lah. 257; Rehat Siddiqui's case 1977 SCMR 213; Farrukh-ud-Din's case PLD 2000 Kar. 154; Amjad Yasin's case 1999 SCMR 2604; Ghulam Rasool's case PLD 1971 SC 376; Ali Mir's case 1994 SCMR 433 and Saeed Nawaz's case PLD 1981 Lah. 371 ref.

Khalid Ikram Khatana for Petitioner.

Shahid Waheed for Respondents.

MLD 2001 LAHORE HIGH COURT LAHORE 577 #

20Q1 M L D 577

[Lahore]

Before Ch. Ijaz Ahmad, J

MANAGING DIRECTOR, RAVI RAYON LIMITED, KALA SHAH KAKU‑‑‑Petitioner

versus

PROVINCE OF PUNJAB through Secretary Labour, Civil Secretariat, Lahore and 2 others‑‑‑Respondents

Writ Petition No.667 of 1988, heard on 25th October, 2000.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑‑Art. 203‑G‑‑‑Enforcement of Injunctions of Islam‑‑‑Jurisdiction of High Court‑‑‑High Court in view of Art. 203‑G of Constitution of Pakistan (1973) had no authority to examine enforcement of Injunctions of Islam.

Messrs Bank of Oman Ltd.'s case PLD 1987 Kar. 404 and Habib Bank Ltd.'s case PLD 1987 Kar. 612 ref. , (b) Interpretation of statutes‑

‑‑‑‑ Special law would exclude general law.

Sayed Abu‑al‑A'la Madoodi's case PLD 1964 SC 673; Zakir Ahmad's case PLD 1965 SC 90; Messrs Anwar Jamil's case 1981 PLC 380: Flour Mill Employees' Union's case 1964 PLC 593; Muhammad Ibrahim's case 1973 PLC 61; Hakim Khan's case PLD 1992 SC 595; Sh. Abdur Rashid's case 1998 PLC (C.S.) 8 and Zia‑ur‑Rehman's case PLD 1973 SC 49 ref.

‑‑‑ Principles of natural justice must be read in each statute unless prohibition was specified and expressed in the statute itself.

Fazal‑ur‑Rehman's case PLD 1964 SC 410; Messrs Farid Sons Ltd.'s case PLD 1961 SC 537; Ghulam Mustafa Jatoi's case 1994 SCMR 1299; Tariq v. PIA 1998 SCMR 429; Chief Commissioner's case PLD 1959 SC 55; Aneesa Rehman's case 1994 SCMR 2232; Swadesh Cotton Mill's case AIR 1981 SC 818 and Pakistan and others v. Public‑at‑Large PLD 1987 ref.

Umar Alvi for Petitioner.

Malik Akhtar A. Awan, Addl. A.‑G. for Respondents.

Date of hearing: 25th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 583 #

2001 M L D 583

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD AYUB and another‑‑‑Petitioners

versus

SARWAR KHAN‑‑‑Respondent

Civil Revisions Nos.2296 and 2297 of 1985, heard on 15th November, 2000.

Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑‑.

‑‑‑‑S. 10(4)‑‑‑Civil Procedure Code (V of 1908), S. 115‑‑‑Grant in favour of widow‑‑‑ Proprietary rights, issuance of‑‑‑Female allottee was not at limited owner‑‑‑Plaintiffs assailed mutation of inheritance on the ground that the allottee was a limited owner and after her death the same had to revert back‑‑‑Plaintiffs claimed to be collateral of the husband of the deceased widow hence liable to inherit the suit land‑‑‑Validity‑‑‑Grant was made in favour of the widow under the provisions of S. 10(4) of Colonization of Government Lands (Punjab) Act, 1912, and the same was subject to terms and conditions of that law‑‑‑Suit land did not constitute limited estate and upon opening of succession the same would not revert to the collateral of the husband of the deceased widow‑‑‑Deceased widow was the owner of ‑the suit land and it devolved upon the defendant who was her collateral‑‑‑High Court refused to interfere in the judgment and decree passed by the Lower Appellate Court in favour of the defendant.

Additional Settlement Commissioner (Land), Sargodha v. Muhammad Ismail and others PLD 1971 SC 791 distinguished.

S.M. Masood for Petitioners.

Waheed Ahmad Mian for Respondent.

Date of hearing: 15th November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 586 #

2001 M L D 586

[Lahore]

Before Ch. Ijaz Ahmad, J

SARFRAZ and 5 others‑‑‑Petitioners

versus

SULTAN AHMAD and 4 others‑‑‑Respondents

Writ Petition No.3077 of 1983, heard on 15th November, 2000.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑‑

‑‑‑‑Ss. 21, 25 & 29‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.164‑‑‑Suit for pre‑emption ‑‑‑Alterations of date fixed in decree for depositing pre‑emption amount‑‑‑Member, Board of Revenue accepting revision against judgments of forums below altered the date fixed in the decree for depositing the pre‑emption amount‑‑‑Validity‑‑‑Member, Board of Revenue had only authority to reverse the concurrent findings of fact of the forums below in revisional jurisdiction, in case forums had passed the orders in violation of the law laid down by the superior Courts or their orders were a result of, misreading or‑ non‑reading of the record‑‑‑Orders did not reveal that Member, Board of Revenue had found any illegality committed by the forums ‑‑‑~ember, Board of Revenue had authority only to reverse the concurrent findings of fact after satisfying himself upon three principles; viz. that the order of subordinate forum was within its jurisdiction; that the case was one in which the forum ought to exercise jurisdiction; and that in exercise of jurisdiction, the forum had not acted illegally‑‑‑Member, Bard of Revenue having not mentioned in the order that the forums below had violated said principles, order of Member; Board of Revenue was set aside.

Shah Wali's case PLD 1966 SC 983; Haji Naji Nawab Khan's case 1976 SCMR 502; Manzoor Ahmed's case 1999 MLD 135; Dullah's case PLD 1994 Lah. 200; Ghulam Rasool's case 1994 CLC 1311; 1996 SCMR 502 and 1994 CLC 1311 ref.

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑‑

‑‑‑‑Preamble, Ss. 21 & 25‑‑‑Suit for pre‑emption ‑‑‑Provisions of pre‑emption law must strictly be complied with, to attract its rigour and even the technicalities were also relevant to the said law‑‑‑Person who wished to avail himself of a right under such law was required to be vigilant and see that he had complied with all the conditions imposed upon him.

M. Sarwar Rana for Petitioners.

Nemo for Respondents.

Date of hearing: 15th November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 591 #

2001 MLD591

[Lahore]

Before Sheikh Abdur Razzaq, J

ARIF ALI and another‑‑‑Petitioners

versus

MUHAMMAD BUTA‑‑‑Respondent

Civil Revision No. 165‑D of 1978, heard on 3rd October, 2000.

(a) Specific Relief Act (I of 1877)‑‑‑‑

‑‑‑‑S. 42‑‑‑Suit for declaration‑‑‑Suit was filed to the effect that sale‑deed executed in respect of plaintiff's land was forged, collusive and false which was liable to be cancelled on the ground that plaintiff had neither sold the land to defendants nor had received any consideration for the said land‑‑Courts below concurrently decreed the suit‑‑‑Onus was on the defendants to prove the execution of sale‑deed as they were the beneficiaries of the said document, but they had failed to discharge the onus by examining the witnesses regarding the sanctity of the document as well as its marginal witnesses and also the attesting witnesses who contradicted each other on material points‑‑‑Defendants had contradicted their own stand which had given support to the contention of plaintiff that alleged sale‑deed was the result of fraud and misrepresentation‑‑‑Courts below rightly decreed the suit concurrently.

(b) Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑S. 115‑‑‑Revisional jurisdiction‑‑‑Scope‑‑‑Principles‑‑‑Judgments and decrees of the Courts below could not be interfered with in revisional jurisdiction of High Court as provision of S. 115, C.P.C. would apply to cases involving illegal assumption, non‑exercise or irregular exercise of jurisdiction‑‑‑Section 115, C.P.C. could not be invoked against conclusion of law or fact which did not in any way, effect the jurisdiction of High Court, 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‑‑An 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, all error of law was manifestly shown to have been committed‑‑‑Concurrent judgments and decrees of Courts below not suffering from any infirmity or any irregularity were unexceptionable and could not be interfered with in revision.

Mst. Harridan Begun v. Mst. Murad Begum and others PLD 1975 SC 624; Muhammad Bashir v. Mst. Sattar Bibi and another PLD 1995 Lah. 321; Mst. Sahib Noor v. Haji Ahmad 1988 SCMR 1703; Mushtaq Ahmad Gormani v. Z.A. Sulehri and another PLD 1958 (W.P.) Lah. 747; Ch. Abdul Hameed v. Deputy Commissioner and another 1985 SCMR 359; Pirla and others v. Noora and others PLD 1976 Lah. 6; Taj Din v. Muhammad Zafar and 4 others 1982 CLC 970; Allah Ditta and others v. Syed Mehdi and others 1982 CLC 1445; Pir Abdullah Shah and others v. Humayun and 5 others PLD 1957 (W.P.) Lah. 1054; Jewan v. Hafiz Faiz Muhammad PLD 1957 BJ 31 and Muhammad Suleman and another v. Javed lqbal and others PLD 1985 SC (AJ&K) 1 ref.

Muhammad Mahmood Bhatti for Petitioners.

Ch. Naseer Ahmad for Respondent.

Date of hearing: 3rd October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 597 #

2001 M L D 597

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD AZIZ ‑‑‑ Petitioner

versus

MUHAMMAD ARIF and another‑‑‑Respondents

Civil Revision No.41‑D of 1984, decided on 15th December, 2000.

(a) Co‑sharer.‑‑‑

‑‑‑‑Definition‑‑‑Word "co‑sharer" denotes a person who holds an existing joint interest whether absolute or limited in an undivided property ‑‑‑Co‑sharer signifies persons owning a share or shares in whole of the property or properties of which other sharers were subject to sale‑‑‑Whatever the interest of co‑sharer, in the joint property may be, is a co‑owner in every inch of that property to the extent of his share until partition takes place which he can claim as a matter of right.

Mardan Shah v. Shah Nazar Khan PLD 1970 SC 245 and Rajindra Singh v. Umrao Singh and others AIR 1925 Lah. 223 ref.

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑‑

‑‑‑‑Ss. 4 & 21‑‑‑Right of pre‑emption ‑‑‑Co‑sharer‑‑‑Plea of undivided property ‑‑‑Validity‑‑‑Pre‑emptor had earlier purchased specific Killa numbers and not undivided share from sole proprietor‑‑‑On the sale of specific Killa numbers to the vendee the pre‑emptor filed suit for possession through pre‑emption on the basis of being co‑sharer in suit land‑‑‑Trial Court dismissed the suit whereas Lower Appellate Court allowed the appeal and decreed the suit-‑‑Validity‑‑‑Where the vendor had not alienated unspecific or undefined share in favour of pre‑emptor, the pre‑emptor would not be construed a co‑sharer of the property in dispute, with vendor‑‑‑Lower Appellate Court had misconstrued and misapplied the law laid down by the superior. Courts and as such committed an illegality while passing the Judgment and decree which suffered from infirmity and called for interference by High Court.

Mardan Shah v. Shah Nazar Khan PLD 1970 SC 245 fol.

Sher Singh v. Nand Lal AIR 1947 Lah. 184; Mardan Shah v. Shah Nazar Khan PLD 1970 SC 245; Ali Muhammad v. Shera and another 1987 SCMR 207; Nawab Din and 2 others v. Hassan Muhammad 1987 CLC 1656; Ghulam Yasin v. Muhammad Luqman 1989 MLD 200; Mir Alain Khan v. Muhammad Ji alias Aslam arid another PLD 1984 Pesh. 71; Ilahi Bakhsh and others v. Faialur Rahman and others 1993 SCMR 1079;1 Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC 9; Muhammad Sharif and 6 others v. Shabbir Hussain and 2 others 1986 CLC 2672 and Faqir Shah and another v. Muhammad Rafiq and 6 others PLD 1992 SC 834 ref.

Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC 9 and Faqir Shah and another v. Muhammad Rafiq and 6 others PLD 1992 SC 4 distinguished.

‑‑‑‑Art. 189‑‑‑Judgment of Supreme Court‑‑‑Binding all Courts‑‑‑Judicial duty to follow the dictum laid down by the apex Court of the country and the findings of the highest Court of the country are binding on all the Courts 'subordinate to it, provided the issue resolved by the Supreme Court and the principles settled are fully applicable to the facts of the case in hand.

Ch. Abdus Sattar for Petitioner.

Raja Muhammad Sohail Iftikhar for Respondents.

Date of hearing: 15th December, 2000:

MLD 2001 LAHORE HIGH COURT LAHORE 606 #

2001 M L D 606

[Lahore]

Before Sheikh Abdur Razzaq, J

Mst. GHULAM SAKINA‑‑‑Petitioner

versus

STATE LIFE INSURANCE CORPORATION OF

PAKISTAN through General Manager‑‑‑Respondent

Civil Revision No. 139‑D of 1983, heard on 13th November, 2000.

Insurance‑‑‑

‑‑‑‑Suit for recovery of insurance policy‑‑‑Dispute was raised by the Insurance Company regarding medical certificate submitted by the deceased at the time of getting insurance policy‑‑.‑Defendant company refused to pay the amount of policy for the reason that the deceased was suffering from tuberculosis and the medical certificate submitted was fake‑‑‑Plaintiff proved that the deceased was not suffering from any disease at the time of obtaining policy and he died as a result of heart attack‑‑‑Deceased had not committed any fraud with the, company at the time of obtaining the policy‑‑‑Findings of Lower Appellate Court were not sustainable‑‑‑Judgment and decree of Lower Appellate Court were set aside and that of the Trial Court was restored.

M. Jaffar Hashmi for Petitioner.

Inamullah Hashmi for Respondent.

Date of hearing: 13th November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 609 #

2001 M L D 609

[Lahore]

Before Muhammad Akhtar Shabbir, J

WAHID BAKHSH---Petitioner

versus

NOOR AHMAD---Respondent

Civil Revision No.26-D of 1985, heard on 6th December, 2000.

(a) Punjab Pre-emption Act (I of 1913)----

----S. 4---Pre-emption right, exercise of---Scope---Such right, under the provisions of S. 4 of Punjab Pre-emption Act, 1913, arises in respect of property only in case of sale.

(b) Punjab Pre-emption Act (I of 1913)----

----Ss. 4 & 21---Specific Relief Act (I of 1877), S. 12---Pre-emption suit--Agreement to sell and decree for specific performance---Points of similarity--No suit for pre-emption can be filed in respect of agreement to sell the property---Agreement to sell the property does not create any title or any interest in the property itself---Decree passed in the suit for specific performance of contract is mere declaration of right of decree-hold- ad does not even amount to a defective sale---Mere decree, unless same is registered by Registrar, does not create any title/right in favour of decree-holder which can form basis for pre-emption.

Hafiz Manzoor Ahmad v. Muhammad Azam 1988 MLD 2248; Syed Ghaffar Hussain v. Ilahee Bakhsh 1990 MLD 739; Syed Manzoor Hussain Shah v. Khurshid Ahmad and 4 others 1989 CLC 1372 and Muhammad Ishaq v. Muhammad Siddique PLD 1975 Lah. 909 ref.

----S. 21---Suit for pre-emption ---Decree for specific performance of agreement to sell---Such decree was passed in favour of the vendee and the pre-emptor filed suit for pre-emption after such decree---Trial Court dismissed the suit being pre-mature but appeal was allowed by Lower Appellate Court and the suit was decreed---Validity---Where neither any sale had been registered in favour of the vendee/decree-holder by the Sub-Registrar, nor sale was perfected nor sale-deed was signed by the Court on behalf of the vendor under O.XXI, R.34(5), C.P.C., suit for pre-emption was not maintainable and was rightly dismissed by Trial Court being premature.

Muhammad Shafi v. Alam Din and another 1990 MLD 1967 ref.

(d) Punjab Pre-emption Act (I of 1913)----

----S. 4---Partial pre-emption ---Including left over portion of suit property in suit for pre-emption already filed---Limitation---Scope---Such inclusion by amendment must be sought within period of limitation ---Pre-emptor has to sue for whole of the property under sale or transfer---Where departure from such principle is made such suit is not sustainable by virtue of rule of partial pre-emption.

(e) Punjab Pre-emption Act (I of 1913)---

----Ss. 4 & 21---Civil Procedure Code (V of 1908), S. 115---Suit for pre\emption---Partial pre-emption ---Including remaining portion of suit land in the suit after the period of limitation ---Effect---Pre-emptor sought amendment for inclusion of such portion after the period of limitation---Trial Court refused to allow the amendment and the suit was dismissed for partial pre-emption ---Lower Appellate Court allowed the amendment and the suit was decreed---Validity---By allowing the amendment in the plaint, Lower Appellate Court had prejudiced the vested right of the opposite-party created after the expiry of period of limitation---Where Appellate Court had failed to take into consideration legal proposition, High Court would interfere in its revisional jurisdiction to set at naught such findings---Judgment and decree of Appellate Court were set aside and that of the Trial Court was maintained---Revision was allowed in circumstances.

Hafiz Manzoor Ahmad v. Muhammad Azam 1988 MLD 2248; Syed Ghaffar Hussain v. Ilahee Bakhsh 1990 MLD 739; Syed Manzoor Hussain Shah v. Khurshid A" and 4 others 1989 CLC 1372; Muhammad Ishaq v. Muhammad Siddiqui PLD 1975 Lah. 909; Mst. Bashiran and 7 others v. Abdul Ghani and 4 others 1995 SCMR 1833 and Syed Najmul Hassan and others v. Shah Sawar and others 1980 CLC 1866 ref.

Altaf Hussain v. Lal Khan 1993 CLC 1580 and Nur Ahmad and others v. B. Muhammad Ibrahim and another PLD 1953 Lah. 470 distinguished.

Sh. Hakim Ali for Petitioner.

Sardar Muhammad Aslam Khan for Respondent.

Date of hearing: 6th December, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 614 #

2001MLD614

[Lahore]

Before Sheikh Abdur Razzaq, J

ALLAH RAKHIA and 12 others‑‑‑Petitioners

versus

GHULAM QADIR and 34 others‑‑‑Respondents

Civil Revision No. 196‑D of 1981, heard on 15th November, 2000.

Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑S. 115‑‑‑Revisional jurisdiction‑‑‑Scope‑‑‑Provisions of S. 115, C.P.C. would apply to a case involving illegal assumption, non‑exercise or irregular exercise of jurisdiction‑‑‑Section 115, C.P.C. could not be invoked against conclusions of law or .fact which did not, in any way, affect the jurisdiction of High Court, no matter how 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 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‑‑‑Concurrent judgments and decrees of Courts below not suffering from any infirmity or any irregularity or perversity or arbitrariness, could not be interfered with in revisional jurisdiction of High Court.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Aswar Muhammad and others v. Sharif Din and others 1983 SCMR 626 and Haji through his Legal Heirs and others v. Khuda Yar through his Legal Heirs PLD 1987 SC 453 ref.

M.M. Bhatti for Petitioner.

Aijaz Ahmad Ansari for Respondent Nos. l to 11.

Respondents Nos. 12 to 35: Ex parse.

Date of hearing: 15th November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 619 #

2001 M L D 619

[Lahore]

Before Raja Muhammad Sabir and Zafar Pasha Chaudhary, JJ

THE STATE ‑‑‑ Petitioner

versus

MUHAMMAD HUSSAIN and 2 others‑‑‑Respondents

Criminal Appeal No.31 of 1985 and Criminal Appeal No. 92 of 1984, heard on 15th November, 2000.

(a) Criminal‑trial‑‑‑‑

‑‑‑‑Burden of proof‑‑‑Burden, of proof in a criminal case always remains on the prosecution and the same has to be discharged beyond any doubt.

(b) Criminal trial‑‑

Counter‑versions‑‑‑Burden of proof‑‑‑When prosecution and defence come forward with counter pleas, both have to be juxta posed and onus to discharge is heavier on the prosecution than that on the defence.

‑‑‑‑Ss. 304, Part I & 302‑‑‑Criminal Procedure Code (V of 1898), S. 417‑‑Appeal against acquittal of accused of the charge under S. 302, P.P.C.‑‑- Accused had opened the attack who, being injured, his presence at the spot had not been disputed‑‑‑Accused had fired a shot at an old woman (deceased) which led to an exchange of firing between the parties‑‑‑Accused could not escape his liability merely because he had received serious injuries after he had fired the fatal shot at the said old woman‑‑‑Conviction of accused under S. 304, Part I, P:P.C. was consequently set aside and he was convicted under S. 302, P.P.C.‑‑‑However, a single injury was attributed to the accused which was not repeated by him and the igniting cause of the occurrence had remained shrouded in mystery‑‑‑Accused was sentenced to imprisonment for life with fine in circumstances.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 304, Part II‑‑‑Appreciation of 'evidence‑‑‑Accused admittedly had caused only a pellet wound on non‑vital part of the body of a prosecution witness‑‑‑Occurrence had taken place twenty years back and to imprison the accused at such stage was not just as he had already undergone adequate imprisonment‑‑‑Conviction of accused was upheld in circumstances and his sentence was reduced to the imprisonment already undergone by him with a fine of Rs.10,000.

(e) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S. 302‑‑‑Criminal Procedure Code (V of 1898), S. 417‑‑‑Appeal against acquittal‑‑Accused had no community of purpose with his co‑accused as his house was situate across the street on the corner‑‑Possibility could not be ruled out that as the accused could be an important witness against the complainant party he had been arrayed as an accused in the case‑‑Appeal against acquittal of accused by Trial Court was., dismissed accordingly.

Raja Saeed Akram, A.‑A.G. for the State.

Abdul Shakoor Paracha and Malik Rab Nawaz Noon for Respondents.

Date of hearing: 15th November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 634 #

2001 M L D 634

[Lahore]

Before Sheikh Abdur Razzaq, J

Syed TASSADUQ ABBAS BUKHARI‑‑‑Petitioner

versus

CHAIRMAN, APPEAL COMMITTEE, PUNJAB‑I, PAKISTAN BAR

COUNCIL, ISLAMABAD and 20 others‑‑‑Respondents

Writ Petition No.3842/BWP of 2000, decided on 10th October, 2000.

Punjab Rules of Business of Bar Associations Memorandum of Association Rules, 1981‑‑‑‑

‑‑‑‑R. 60‑‑‑Legal Practitioners and Bar Councils Act (XXXV of 1973), S.13(2)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Election of Bar Association‑‑‑Validity of vote‑‑‑Putting of "Tick" mark instead of "Cross" mark on ballot paper‑‑‑Executive Committee of Provincial Bar Council Accepted election petition filed by tj16 respondent candidate, resultantly votes of both the candidates had become equal‑‑Contention of the petitioner was that one of the votes in favour of the respondent did not contain "Cross" mark as the same was the requirement of R. 60 of Punjab Rules of Business of Bar Association/Memorandum of Association Rules, 1981, thus, the respondent had lost election by one vote‑Validity‑‑‑Although under the provisions of R.60 of Punjab Rules of Business of Bar Associations/Memorandum of Association Rules, 1981, every person exercising his right of vote was required to put "Cross" mark against candidate of his own choice, yet the rule did not contain any penal provision‑‑‑Where a voter had not put "Cross" mark against candidate of his own choice but had simply put "Tick" mark against the name of his favourite candidate, the same would not make the ballot paper invalid‑‑‑By putting any of the two marks a voter signified his intention in favour of his candidate‑‑Intention of the voter had to be looked into and taken into consideration while judging the validity or invalidity of a ballot paper‑‑‑Mere fact that R.60 of Punjab Rules of Business of Bar Associations/Memorandum of Association Rules, 1981, required a "Cross" mark to be made against the name of one's favourite candidate did not mean that if any voter had put a "Tick" mark instead of "Cross" mark, that would invalidate the vote‑‑Restricted interpretation upon R. 60 of Punjab Rules of Business of Bar Associations/Memorandum of Association Rules, 1981, would create difficulties and would not be in the interest of justice‑‑‑Executive Committee of Provincial Bar Council had rightly found the disputed ballot paper as a valid one and as such counted the same in favour of the respondent‑‑‑Both the candidates were carrying equal votes, therefore, the Executive Committee had divided the tenure equally between the parties‑‑‑Order of the Executive Committee being fair and justified was upheld by the High Court‑‑‑Order of the Executive Committee was not suffering from any illegality to invoke the Constitutional jurisdiction of High Court.

M.Y. Khan v. M.M. Aslam and 2 others 1974 SCMR 196; Rashid Akhtar and others v. The State through Minister, Consolidation Department and 16 others 1989 MLD 4496; Muhammad Saleem Chotia, Advocate v. Zafar Iqbal Awaisi, Advocate, Bahawalpur and 4 others PLD 1999 Lah. 446; Sahibzada Abdul Latif v. Sardar Khan and others 1996 SCMR 1496; Anwar Hussain v. The Agricultural Development Bank of Pakistan and others 1992 SCMR 1112 and University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali 1992 SCMR 1093 ref.

Malik Ghulam Haider Channer for Petitioner.

Mehmood Iqbal Khakwani, Bilal Ahmed Qazi and Permoon Bashir for Respondents.

Date of hearing: 10th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 638 #

2001 M L D 638

[Lahore]

Before Riaz Kayara, J

MUHAMMAD IQBAL ‑‑‑ Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3562‑B of 2000, decided on 6th July, 2000.

Criminal Procedure Code (V of 1898)‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/ 109/34‑‑‑Bail‑‑‑Allegation against accused was that of conspiracy alone ‑‑‑Co‑accused with similar allegation had already been released on bail by the High Court‑‑‑Fact whether the accused had participated in the conspiracy was yet to be proved‑‑‑Rule of consistency was applicable to the case of accused‑‑‑Bail was allowed to accused in circumstances.

Ijaz Ahmad Awan for Petitioner.

Ijaz Ahmad Bajwa, Addl. A.‑G. for the State.

MLD 2001 LAHORE HIGH COURT LAHORE 639 #

2001 M L D 639

[Lahore]

Before Sheikh Abdur Razzaq, J

Syed NAYYER HUSSAIN BOKHARI‑‑‑‑Petitioner

versus

PROVINCE OF PUNJAB through SECRETARY, COMMUNICATION AND WORKS DEPARTMENT, CIVIL SECRETARIAT, LAHORE and 3 others‑‑‑‑Respondents

Writ Petition No. 1699 of 1999, heard on 27th March, 2000.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Toll tax, collection of‑‑‑Toll Plaza was constructed in Federal Capital territory over a road established and managed by Provincial Government‑‑‑Contention by the petitioner was that the toll was to be recovered by the Federal Capital‑‑‑Validity‑‑‑Area upon which the Toll Plaza had been established exclusively belonged to the Provincial Government and not Federal Capital‑‑‑Provincial Government was competent to recover the tax from the vehicles plying on that road in accordance with law.

Hashwani Hotels Ltd., Karachi v. Government of the Punjab and another PLD 1981 Lah. 211 distinguished.

Ch. Naseer Ahmed for Petitioner.

Syed Sajjad Hussain Shah, A.A.‑G. and Qazi Ahmed Naeem Qureshi; Standing Counsel for Respondents.

Date of hearing: 27th March, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 641 #

2001 M L D 641

[Lahore]

Before Maulvi Anwarul Haq, J

SADAN MAI and 7 others‑‑‑Petitioners

versus

MUHAMMAD and 3 others‑‑‑Respondents

Civil Revisions Nos.2677 to 2679 of 2000, decided on27th November, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.12(2)‑‑‑Decree, setting aside of‑‑‑Fraud and misrepresentation‑‑ Counsel and client, relationship of‑‑‑Plea of collusion of the counsel with other party‑‑‑Suits were decreed by the Trial Court and the respondents filed application under S.12(2), C.P.C. for setting aside of the decrees‑‑‑Trial Court summarily dismissed the applications, but the same were allowed by the Lower Appellate Court on the ground that such allegation could not be decided unless the issues were framed‑‑‑Validity‑‑‑Where the allegations were made against the counsel, such allegations could not have been decided without framing of issues‑‑‑Lower Appellate Court had rightly directed the Trial Court to decide the matter after framing of issues and recording of evidence‑‑‑Order of the Lower Appellate Court was upheld.

Abdur Razzaq v. Muhammad Islam and others 1999 SCMR 1714 fol.

Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296 and Amiran Bibi and others v. Muhammad Ramzan and others 1999 SCMR 1334 ref.

Mian Jaffer Ali for Petitioner

MLD 2001 LAHORE HIGH COURT LAHORE 643 #

2001 M L D 643

[Lahore]

Before Sheikh Abdur Razzaq, J

FEDERATION OF G‑6 WELFARE ASSOCIATION, ISLAMABAD through President‑‑-Petitioner

versus

GOVERNMENT OF PAKISTAN through Secretary, Housing and Works, Islamabad and 2 others‑‑‑Respondents

Writ Petition No. 1498 of 1999, heard on 5th April, 2000

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Directive from Prime Minister Secretariat for proprietary rights of residential quarters‑‑‑Quarters were owned by Federal Government‑‑‑Petitioners/residents of the quarters were Government employees and monthly rent was being deducted out of their monthly salaries‑‑‑Contention by the petitioners was that since a directive from Prime Minister Secretariat was issued for allotment, the quarters should be allotted to them‑‑‑Validity‑‑‑Proprietary rights of the quarters could not be conferred upon the petitioners through a directive, even if the same had been issued by the Prime Minister‑‑‑In order to confer proprietary rights in respect of the quarters Federal legislation was necessary which was lacking‑‑‑No vested right had been created in favour of the petitioners on the basis of the directive issued by the .Prime Minister.

Asif Iqbal v. Karachi Metropolitan Corporation and 2 others PLD 1994 Kar. 60; Pakistan through Secretary, Ministry of Commerce and 2 others v. Salahuddin and 3 others PLD 1991 SC 546 and Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 ref.

(b) Estoppel‑‑‑

‑‑‑Promissory estoppel, doctrine of‑‑‑Applicability‑‑‑Where as a result of promise some tangible steps are taken to implement the promise, promissory estoppel can be pressed into service.

Sahibzada Ahmad Raza Khan Kausri for Petitioner.

Malik Muhammad Nawaz for the CDA.

Qazi Ahmad Naeem Qureshi for the Federation.

Date of hearing: 5th April, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 661 #

2001 M L D 661

[Lahore]

Before Ch. Ijaz Ahmad, J

GHULAM RASOOL and 12 others‑‑‑Petitioners

versus

SHANA and 12 others‑‑‑Respondents

Review Application No. l of 2001 in Writ Petition No.2749 of 1987 connected with Writ Petition No. 3861 of 1987 and Writ Petition No. 2576 of 1988, decided on,16th January, 2001.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Civil Procedure Code (V of 1908), Preamble‑‑‑Provisions of C.P.C. were applicable to the proceedings under Art. 199 of the Constitution.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXIII, R.1‑‑‑Withdrawal of suit or abandonment of part of claim‑‑Object of R.1 of O.XXIII, C.P.C. was to prevent a plaintiff from filing fresh suit after having failed to conduct the first one with care and diligence.

AIR 1914 PC 249 ref.

‑‑‑‑O.XXIII, R.1‑‑‑Withdrawal of suit‑‑‑Plaintiff had the right to withdraw a suit whenever he desired, but could not file a fresh suit on the same subject-matter.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXIII, R.1‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Withdrawal of suit/ Constitutional petition‑‑‑Second suit/Constitutional petition‑‑Maintainability of‑‑‑ Second suit/Constitutional petition qua the same subject‑matter was not maintainable unless and until same had been withdrawn with permission to file fresh suit/Constitutional petition.

Mushtaq Hussain and others' case 1999 MLD 3384; Karim Gull and another's case 1970 SCMR 141; Maula Bakhsh's.case PLD 1990 SC 596; Raja Bashir Ahmed Khan's case 1998 CLC 213; Shabbir Ahmed's case PLD 1994 SC 598; Haji Abdur Rashid Sowdogar's case PLD 1959 SC 287; Jewan's case 1989 CLC 2393; M/s. Meharun Nisa's case 1990 CLC 1334; Mst. Mahroof Jan's case 1990 CLC 19; Waheed Ahmad's case 1990 CLC 220; Haji Nawab Din v. Qazi Abdul Saeed 1973 SCMR 143; Muhammad Zafar Ullah Khan v. Muhammad Khan and another 1975 SCMR 473 and Mst. Shamim Akhtar v. Syed Ali Hussain and others 1975 SCMR 16 ref.

Ch. Muhammad Rafique Warraich for Petitioners.

Syed Seerat Hussain Naqvi for Respondents.

MLD 2001 LAHORE HIGH COURT LAHORE 665 #

2001 M L D 665

[Lahore]

Before Ch. Ijaz Ahmad, J

Messrs KASUR OIL MILLS (PVT.) LIMITED‑‑‑Petitioner

versus

FEDERATION OF PAKISTAN, LAW, JUSTICE & HUMAN RIGHTS DIVISION through

President of Pakistan, Islamabad and others‑‑‑Respondents

Writ Petition No.5583 of 2000, decided on 22nd September, 2000

(a) Review‑‑‑‑

‑‑‑‑Power of review was not a matter of mere procedure but of jurisdiction and unless that power was conferred expressly it could not be exercised‑‑Review was a substantive right and could not by intendment be invoked‑‑Right of review being a substantive right was always the creation of a relevant statute on the subject.

Muhammad Tafiq Pirzada v. Government of Pakistan 1999 CLC 583; Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94 and Malik Azam Jan's case 1995 CLC 234 ref.

(b) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (P.O. 1 of 1983)‑‑‑‑

‑‑‑‑Art. P‑‑President of Pakistan while exercising jurisdiction under Art.27 was not bound or required to give hearing to the party before passing the order.

‑‑‑‑Arts. 9 & 27‑‑‑Wafaqi Mofitasib has no power to review its earlier order.

Ch. Muhammad Saeed Warraich for Petitioner.

Muhammad Saeed Akhtar, Dy. A.‑G. for Respondents.

MLD 2001 LAHORE HIGH COURT LAHORE 667 #

2001 M L D 667

[Lahore]

Before Mian Muhammad Najum‑uz‑Zaman, J

HASSAN ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Revision No.33 of 1997/BWP, decided on 17th April, 2000.

Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑Ss. 302/394/458/411‑‑‑Criminal Procedure Code (V of 1898), Ss. 265‑D & 439‑‑‑Simultaneous trial in challan case and complaint case ‑‑‑Validity‑‑Trial Court had framed charge in challan case as well as in complaint case by taking cognizance in both the cases simultaneously‑‑‑Set of accused persons in the complaint case and in the challan case were not entirely different‑‑‑ Petitioner had been arraigned as accused in both the cases‑‑‑Trial Court had rightly started proceedings in both the cases simultaneously so that the story in both the cases should be put in juxtaposition for coming to the right conclusion‑‑‑No prejudice, prima facie, seemed to have been caused to the accused by the mode of trial adopted by the Trial Court in both the cases and he would have a fair opportunity of trial‑‑‑Trial Court had specifically observed in the impugned order that the fairness of the trial required that evidence in both the cases should be recorded separately and the judgment in the cases be announced simultaneously‑‑‑Said observations of the Trial Court were just, fair and appropriate and did not call for any interference‑Revision petition was dismissed accordingly.

Nur Elahi v. The State end 2 others PLD 1966 SC 708 and Rashid Ahmad v. Asghar Ali and 2 others PLD 1986 SC 737 ref.

Ch. Muhammad Ashraf Mohandra for Petitioner.

Mat' Sajid Feroze and Abdul Rashid for Respondent.

Abdul ant for the State.

Date of hearing: 17th April, 2000

MLD 2001 LAHORE HIGH COURT LAHORE 670 #

2001 M L D 670

[Lahore]

Before Muhammad Nasim Chaudhri, J

ABDUL GHAFOOR‑‑‑Petitioner

versus

S.H.O., POLICE STATION FATEHPUR, DISTRICT LAYYAH

and others‑‑‑Respondents

Writ Petition No. 2005 of 2000, decided on 8th March, 2000.

Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S. 550‑‑‑Constitution of' Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Police had taken into possession the car in dispute under S.550, Cr.P.C.‑‑‑Authority under S. 550, Cr.P.C. could be exercised by the police by seizing any property alleged or suspected to have been stolen or which might be found under circumstances creating suspicion of the commission of any offence‑‑‑Dispute about the car in question revolved around its ownership and it could not be taken into possession under S. 550, Cr.P.C.‑‑Police had coined a device to settle the dispute of civil nature of the instant category by projecting its authority‑‑‑Contesting parties could get determined their ownership of the car from the competent Court‑‑‑Police had no jurisdiction to decide such dispute and was directed to return the car to the petitioner‑‑‑Constitutional petition was disposed of accordingly.

Abdul Nazir Khan Niazi for Petitioner.

Tahir Haider Wasti, Asstt.‑A.G. for Respondent No. l

Noor Mustafa for Abdul Majid.

Date of hearing: 8th March, 2000

MLD 2001 LAHORE HIGH COURT LAHORE 672 #

2001 M L D 672

[Lahore]

Before Nasim Sikandar, J

INTIZAR ALI ‑‑‑Petitioner

versus

THE SATE‑‑‑Respondent

Criminal Miscellaneous No. 849‑B of 2000, decided on 19th June, 2000.

Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 324/34‑‑‑Bail‑‑‑Recording of evidence in the case was being prolonged due to adjournments being sought by the complainant ‑‑‑Co‑accused had been enlarged on bail on the statement of the complainant‑‑‑Accused was not a previous convict and it was not alleged that he would be misusing the concession of bail if the same was granted to him‑‑‑Injuries attributed to accused were on non‑vital part of the body of the victim‑‑‑Accused was admitted to bail in circumstances.

Jan Muhammad v. Haji Noor Jamal and another 1‑998 SCMR 500 and Karam Ilahi v. The State PLD 1992 Pesh. 111 ref.

Zafar Khan Sial for Petitioner.

Abdul Aziz Khan Niazi for the Complainant.

Qazi Yaqub Siddiqui for the State.

MLD 2001 LAHORE HIGH COURT LAHORE 677 #

2001 M L D 677

[Lahore]

Before Zafar Pasha Chaudhary, J

MUHAMMAD JAVED‑‑‑Petitioner

versus

S.P., C.I.A., and others‑‑‑Respondents

Criminal Miscellaneous No. 1647/H of 2000, decided on 16th October, 2000.

Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S. 491‑‑‑Habeas corpus petition‑‑‑Bailiff‑‑‑No record of arrest of the alleged detenu was shown to the bailiff by the police‑‑‑Stance taken by the police was that the detenu was required as an accused registered under S.381‑A, P.P.C. and that the stolen motorcycle had been recovered from him‑‑‑Any irregularity on the part of the police might be taken into consideration by the higher Authority, but the same did not absolve the alleged detenu of his guilt and he was to be Proceeded against in accordance with law ‑‑‑Detenu being required in the case, he was directed to be taken into custody by the police officials and petition was disposed of accordingly.

Iqbal Mehmood Malik for Petitioner.

N.A. Butt for Respondent No.3.

MLD 2001 LAHORE HIGH COURT LAHORE 678 #

2001 M L D 678

[Lahore]

Before Riaz Kayani, JJ

MUHAMMAD ASLAM, PROJECT MANAGER, PUNJAB MINERAL

DEVELOPMENT CORPORATION, KHUSHAB‑‑‑Petitioner

versus

SPECIAL JUDGE, ANTI‑CORRUPTION, SARGODHA, and others‑‑‑Respondents

Writ Petition No.4290 of 1999, decided on 12th May, 2000.

Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑Ss. 403/406/409/420/463/464/471‑‑‑Prevention of Corruption Act (II of 1947), Ss. 5‑A, 3 & 5‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Special Judge, Anti‑Corruption, by means of the impugned order had found that the local police had no jurisdiction to register and investigate the case and discharge the accused‑‑‑Section 5‑A of the Prevention of Corruption Act, 1947, had to be read with Ss. 3 & 5 of the said Act‑‑‑Section 3 of the Act spoke of offences punishable under Ss.161, 162, 163, 164; 165 & 165‑A, P.P.C. and S. 5 referred to the definition of general misconduct which was based on bribery and illegal gratification received by .a public servant as a motive or reward to show favour or disfavour to the person giving gratification or the person against whom action had to be taken‑‑‑Forgery and bogus preparation of a document by a public servant was not strictly envisaged either under S. 3 or S. 5 of the Prevention of Corruption Act, 1947‑‑‑Impugned order had been passed by the Special Court without taking into consideration the dictum laid down by the superior Courts in this behalf and the same suffered from an inherent illegality‑‑‑Said order was consequently set aside and the case was remanded to the Special Court, Anti‑Corruption with the direction to deal with it from the stage when the impugned order was passed.

M. Abdul Latif v. G.M. Piracha and others 1981 SCMR 1101; Mirza Muhammad Iqbal and others v. Government of Punjab PLD 1999 Lah. 109 and Shafqat Hussain v. Malik Sarfraz I.C.A. No. 778 of 1999 ref.

M. Kaleem Khurshid for Petitioner.

Tariq Shamim for Respondents Nos. 3 to 5. A.H. Masood for the State.

Date of hearing: 12th May, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 681 #

2001 M L D 681

[Lahore]

Before Naeem Ullah Khan Sherwani, J

MUHAMMAD SALEEM‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.4393‑B of 2000, decided on 29th August, 2000.

Criminal Procedure Code (V of 1898)‑‑ .

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S: 324‑‑‑Bail‑‑‑Case was on the border line between an accident and deliberate attempt at the lives of the victims by the accused‑‑‑Whether provisions of S. 324, P.P.C. were applicable to the facts and circumstances of the case was a vital question which could be determined by the Trial Court after recording material evidence and weighing the same‑‑‑Case of accused fell within the ambit of further inquiry and he was admitted to bail accordingly.

N.A. Butt for Petitioner.

Hamid Ali Mirza and Ch. Muhammad Aslam for the Complainant.

Ashfaq Ahmad Ghuman for the State.

MLD 2001 LAHORE HIGH COURT LAHORE 683 #

2001 M L D 683

[Lahore]

Before Raja Muhammad Sabir, J

MUHAMMAD SHAHID ‑‑‑Petitioner

versus

MUHAMMAD SADIQ‑‑‑Respondent

Criminal Miscellaneous No.459‑B of 1999, decided on 31st May, 1999:

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S. 497(5)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10/11‑‑‑Cancellation of pre‑arrest bail‑‑‑Complainant had involved all the family members of the accused in the case‑‑‑Father, mother and sister of the accused did not appear to have joined him in the abduction of the girl‑‑‑Parents were not expected to join such a nefarious act of their son‑‑‑Allegation in the F.I.R. on the face of it appeared to be false‑‑Impugned order passed by Sessions Court granting pre‑arrest bail to accused did not suffer from any perversity or error of law‑‑‑Petition for cancellation of bail was dismissed in limine accordingly.

Chaudhry Muhammad Ashraf Mohandra for Petitioner.

MLD 2001 LAHORE HIGH COURT LAHORE 686 #

2001 M L D 686

[Lahore]

Before Sheikh Abdur Razzaq, J

QADIR BAKHSH and another‑‑‑Petitioners

versus

Mst. SHAHAL and 7 others‑‑-Respondents

Civil Revision No.31‑D of 1979, heard on 27th November, 2000.

(a) Adverse possession‑‑‑‑

‑‑‑‑ Proof of‑‑‑Concurrent findings of fact by the Courts below‑‑‑Plaintiffs filed the suit on the basis of adverse possession.‑‑Trial Court and Lower Appellate Court dismissed the suit and appeal of the plaintiffs respectively‑‑Validity‑‑‑Mere fact that the plaintiffs had been shown to be occupying the suit land without payment of Lagan would not confer upon them rights of ownership on account of adverse possession‑‑‑Besides the entries in ,the Revenue Record, it had to be proved by the plaintiffs claiming such right that they had been in possession of the suit land and their possession was open, hostile and to the exclusion of rightful owners-‑‑Onus having not been discharged by the plaintiffs, they failed to prove their adverse possession over the suit land‑‑‑Findings recorded by the Courts below did not suffer from any misreading and non‑reading of evidence‑‑‑Interference was declined by High Court.

Barkhurdar v. Muhammad Razzaq PLD 1989 SC 749 and Abdul Majeed and 6 others v. Muhammad Subhan .and 2 others 1999 SCMR 1245 ref.

(b) Adverse possession‑‑‑

‑‑-‑Claim of‑‑‑Prerequisites‑‑‑In order to claim adverse possession, one has to prove that he has been occupying the property/land openly, continuously and to the exclusion of the rights of other party.

‑‑‑Adverse possession against co‑sharers‑‑‑Validity‑‑‑Mere possession, however long may be, cannot be construed as adverse possession against co-sharer.

Naeem‑ud‑Din Sheikh v. Maulvi Sher Ali PLD 1967 Dacca 811 ref.

(d) Co‑sharer‑‑‑

‑‑‑‑Possession of one co‑sharer is possession of other co‑sharer.

Sh. Hakim Ali for Petitioners.

S.M. Anwar Shah for Respondents.

Date of hearing: 27th November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 690 #

2001 M L D 690

[Lahore]

Before Ch. Ijaz Ahmad, J

BOARD OF INTERMEDIATE AND SECONDARY

EDUCATION, LAHORE through Secretary and 2 others‑‑‑Petitioners

versus

FARRAKH MANSHA and 3 others‑‑‑Respondents

Writ Petition No.8857 of 2000, decided on 31st October, 2000.

(a) Constitution of Pakistan (1973)‑‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Interim relief‑‑‑Scope‑‑‑Total relief cannot be granted in the garb of interim relief.

Farid Ahmad's case 1968 SCMR 88 and Muhammad Zaman Khan's case 1997 SCMR 1508 ref.

(b) Void order‑‑‑

‑‑‑‑ Where basic order is without lawful authority, the superstructure falls on the ground automatically.

Yousaf Ali's case PLD 1958 SC 104 and Crescent Sugar Mill's'case PLD 1982 Lah. 1 ref.

‑‑‑‑Earlier Constitutional petitions were dismissed by High Court and Intra-Court Appeals also dismissed‑-‑Lower Appellate Court decided the matter without adverting to such fact ‑‑‑Lower Appellate Court passed the order without application of mind and in a mechanical manner‑‑‑Such order was not in accordance with law.

Mollah Ejahar Ali's case PLD 1970 SC 173 ref.

(d) General Clauses Act (X of 1897)‑‑‑

‑‑‑‑S. 24‑A‑‑‑Orders passed by public functionaries‑‑‑Reasons to be recorded‑‑‑ Functionaries art duty‑bound to redress grievances of citizen with reasons.

Messrs Airport Support Service's case 1998 SCMR 2268 ref.

(e) Administration of justice‑‑‑ . .

‑‑‑‑Improper advice of counsel‑‑‑Judge must wear all the laws of the country on the sleeve of his robe and failure of the counsel to properly advise is not an excuse.

Muhammad Sarwar's case PLh 1969 SC 278 and Salina Ifroze's case PLD 1992 SC 263 ref.

(f) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 201‑‑‑Judgment of High Court is binding on each and every organ of the Province.

(g) Words and phrases‑‑‑

----Just all exceptions"‑‑‑Connotation‑‑‑Expression does not contain express directions.

Qadeer Ahmad's case PLD 1990 SC 787 ref: ‑

(h) Punjab Board of Intermediate and Secondary Education Act (XIII of 1976)‑‑‑

‑‑‑‑Ss. 29 & 31‑‑‑Constitution of Pakistan (1973), Art. 199‑-‑Constitutional petition‑‑‑Quashing of contempt proceedings‑‑‑Jurisdiction of Civil Court‑‑‑Lower Appellate Court directed the Authorities to issue result car provisionally to the candidate with "just all exceptions "‑‑‑Authorities did not issue the result card and the Lower Appellate Court initiated contempt proceedings against the authorities‑‑‑ Validity‑‑‑ Jurisdiction of Civil Court being expressly barred by virtue of Ss. 29 & 31 of Punjab Board of Intermediate and Secondary Education Act, 1976, contempt proceedings initiated by the Lower Appellate Court against the Authorities were quashed.

Ghulam Muhammad v. Irshad Ahmad .PLD 1982 SC 282; Muhammad Zaman Khan's case 1997 SCMR 1508; Qadeer Ahmad's case PLD 1990 SC 787; Said Muhammad v. Sultan Ahmad 2000 CLC 387 and Muhammad Rafique's case 1983 SCMR 1024 ref.

Shahid Waheed for Petitioners.

Nisar A. Butt, Representative of F.C. College.

MLD 2001 LAHORE HIGH COURT LAHORE 695 #

2001 M L D 695

[Lahore]

Before Bashir A. Mujahid, J

BASHIR AHMED ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Revision No.220 of 1999, heard on 7th June, 1999.

Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S.514‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.7‑‑‑Forfeiture of bail bond‑‑‑Surety having failed to produce the accused in the Court, bail bond of surety was forfeited‑‑‑Surety had submitted that the accused, after having been enlarged on bail, had gone abroad without informing him and he undertook that as and when the accused would come to the country, he would try to produce him before the Court‑‑Surety had further submitted that he was a poor and old man and had stood surety for the accused out of benevolence and that penalty imposed on him was too heavy and that in several cases Court had reduced same to the tune of one‑fourth of the total amount‑‑‑Court taking into consideration submissions of the surety, reduced amount accordingly.

Haji Miran Malik for Petitioner.

A.H. Masood for the State.

Date of hearing: 7th June, 1999.

MLD 2001 LAHORE HIGH COURT LAHORE 699 #

2001 M L D 699

[Lahore]

Before Maulvi Anwarul Haq, J

SAMBU CONSTRUCTION COMPANY LTD.

GENERAL CONTRACTOR‑‑‑Petitioner

versus

ADMN. ZILA COUNCIL, MUZAFFARGARH‑‑‑Respondent

Writ Petition No.4782 of 1996, decided on 20th September, 2000.

(a) Interpretation of statutes‑‑

‑‑‑‑ Parent statute‑‑‑Efficacy‑‑‑Power to frame rules under‑ the parent statute does not include the power to enhance or curtail, the effect of such statute.

(b) Punjab Local Government Ordinance (VI of 1979)‑‑‑‑

‑‑‑‑S.137 & Sched. II, Para. II, Item No. 7‑‑‑Punjab Zila Council (Goods Exit) Tax Rules, 1990, R.5(1)‑‑‑Goods in transit‑‑‑Levy of tax for export of such goods‑‑‑Jurisdiction of Zila Council ‑‑‑Sc6pe‑‑‑Zial Council has been authorized only to levy a tax for the export of goods or animals from the Zila‑‑‑Goods during transit, under the provisions of R.5(1) of Punjab Zila Council (Goods Exit) Tax Rules, 1990, have no nexus with Item No.7 of Para. II of Sched. II to Punjab Local Government Ordinance, 1979‑‑‑Zila Council has no jurisdiction to levy and charge the export tax/goods exit tax o the goods which are in transit.

‑‑‑‑R.2(c)‑‑‑"Export"‑‑‑Defined‑‑‑Term "export" means export from Zila Council limits.

(d) Punjab Local Government Ordinance (VI of 1979)---

‑‑‑‑S.137 & Sched.II, Para. II, Item No.7‑‑‑Punjab Zila Council (Goods Exit) Tax Rules, 1990, R.5(1)‑‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑Goods in transit‑‑‑Levy of tax for export of such goods ‑‑‑Zila Council was charging the export/goods exit tax from petitioner in respect of his goods which were in transit within the limits of Zila Council‑‑‑Contention by the petitioner was that levy of such tax was against the provisions of R.5(1) of Punjab Zila Council (Goods Exit) Tax Rules, 1990‑‑‑Validity‑‑‑Levy, imposition charge of export/goods exit tax by the Zila Council from the petitioner was illegal and without lawful authority.

Hilal Tanneries Ltd., v. Zila Council, Gujrat through Chairman and another 1994 MLD 2366 and Mitchell's Fruit Farm (Pvt.) Ltd., v. Zila Council Okara 1996 MLD 1617 fol.

(e) Punjab Zila Council (Goods Exit) Tax Rules, (1990)‑‑‑‑

‑‑‑‑Rr.5(3) & 6(3)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Refund of tax recovered from petitioner by the Authorities‑‑‑Scope‑‑‑Where levy of the tax was declared illegal by High Court, the same was ordered to be refunded to the petitioner accordingly.

Hilal Tanneries Ltd. v. Zila Council, Gujrat through Chairman and another 1994 MLD 2366 and Mitchell's Fruit Farm (Pvt.) Ltd. v. Zila Council, Okara 1996 MLD 1617 ref.

Muhammad Rafiq Rajwana for Petitioner.

Muhammad Khalid Alvi for Respondent.

Date of hearing: 19th September, 2000,

MLD 2001 LAHORE HIGH COURT LAHORE 703 #

2001 M L D 703

[Lahore]

Before Rashid Aziz Khan and M. Javed Buttur, JJ

MUHAMMAD ASLAM and 3 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.271 and Murder Reference No.50.of 1992, decided on 17th September, 1997.

(a) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑Ss.302/34‑‑‑Appreciation of evidence‑‑‑No discrepenacy existed between the ocular account and the medical evidence‑‑‑Presence of eye‑witnesses at the spot could not be doubted as they were residents of the same area and had fully explained their presence at the time and venue of the occurrence‑‑Recoveries had been proved and the reports of Chemical Examiner and that of Serologist were also positive‑‑‑Motive had stood proved in view of longstanding enmity between the parties which itself was admitted by the accused‑‑‑Prompt lodging of the F.I:R. had ruled out any possibility of substitution or the prosecution story being an afterthought‑‑‑Belated despatch of sealed parcels to the office of Chemical Examiner and Serologist was of no consequence as Investigating Officer was not cross‑examined as to why the same were not sent earlier to the concerned offices‑‑‑Complainant was the real father of the deceased and had no consideration to falsely implicate the accused in such a heinous offence leaving out actual culprits in an occurrence which took place at a very busy place‑‑‑Ocular account was unanimous, straightforward and was in consonance with medical evidence as well as the recoveries and was worthy of reliance‑‑‑Conviction of accused persons was maintained, but one of the accused having acted under the influence of his father who exhorted him to attack the deceased, case against him was not that of capital punishment and death penalty awarded to the said accused by Trial Court was converted into imprisonment for life‑‑‑Sentence as awarded to other accused persons was maintained.

Mukhtar Hussain and another v. The State 1985 SCMR 479; Ziaullah v. The State 1993 SCMR 155; Amjad alias Gogi v. State 1992 PCr.LJ 290 and Liaqat Shah and others v. The State 1985 SCMR 1415 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/34‑‑‑Sentence‑‑‑Penalty of death‑‑‑Extreme penalty, of death was not called for when the accused acted under the influence of any of his immediate elders.

Asif Mahmood Chughtai for Appellants Nos. l and 3.

Ch.Asghar Ali for Appellant No.2.

J.V. Gardner for the State.

Date of hearing: 17th September, 1997.

MLD 2001 LAHORE HIGH COURT LAHORE 711 #

2001 MLD 711

[Lahore]

Before Ch. Ijaz Ahmad, J

Mst. IRSHAD BIBI---Appellant

versus

Syed ZAMIR HUSSAIN SHAH---Respondent

Regular First Appeals Nos. 198 and 199 of 1992,, heard on 16th October, 2000.

Civil Procedure Code (V of 1908)----

----O. XXXVII, R.2---Suit for recovery of amount on basis of pronote--Application for leave to defend----If leave to defend the suit was granted conditionally and defendant failed to perform the condition, that would tantamount as if no leave to defend the suit had been given.

Muhammad Yousaf's case PLD 1987 Lah. 101; Muhammad Aslam's case 1990 CLC 1119; PLD 1996 SC 749; Ahmad Auto's case PLD 1990 SC 497 and PLD 1995 SC 362 ref.

Bashir Hussain Khalid for Appellant.

Nemo for Respondent.

Date of hearing: 16th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 717 #

2001 M L D 717

[Lahore]

Before Ghulam Mahmood Qureshi, J

KHUDA BAKHSH through Legal Heirs‑‑‑Petitioner

versus

EVACUEE TRUST BOARD, GOVERNMENT OF PAKISTAN, LAHORE through Chairman and 3 others‑‑‑Respondents

Writ Petitions Nos.314‑R of 1983, 327‑R, 206‑R and 328‑R of 1984, decided on 21st December, 2000.

Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)‑‑‑

‑‑‑‑Ss. 8, 10 & 17‑‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑Declaring evacuee‑ property as trust property‑‑Allotment made, prior to the target date as given under S.10; Evacuee Trust Properties (Management and Disposal) Act, 1975‑‑‑Cancellation of such allotment‑‑‑Disputed property was purchased by Chela in his independent capacity and not inherited as religious disciple of Guru‑‑‑Chairman, Evacuee Trust Properties Board declared the disputed property as evacuee trust property and cancelled the allotment‑‑‑Validity‑‑‑Allotment to the original allottees was made prior to the target date as given under S.10 of Evacuee Trust Properties (Management and Disposal) Act, 1975‑‑‑No evidence was produced before the Chairman to establish that the property was ever treated as a trust property and the Chairman also failed to consider the mutation of the disputed property, wherein the same was not entered as trust property‑‑High Court directed the Chairman to decide as to whether the mere devolution of the property from Guru to Chela was a trust‑‑‑Orders of the Chairman having been passed without lawful authority and being of no legal effect, petition was allowed accordingly.

District Evacuee Trust Property Committee, Hyderabad v. Bashir ud Din and another PLD 1973 Note 22 at p. 32; Muhammad Khurshid and 4 others v. Chief Administrator Aquaf, West Pakistan, Lahore PLD 1973 Note 38 at p. 50; Rauf Ahmad v. Secretary to the Government of Pakistan, Ministry of Religious and Minorities Affairs, Islamabad and 9 others PLD 1991 Lah. 33; Mst. Bani and 5 others v. Government of Pakistan through Secretary, Ministry of Religious and Minorities Affairs, Islamabad and ‑4 others 1999 ‑SCMR 2927; Rettigon Customary Laws, paras. 84, 93; Hindu Laws by Mullah, paras. 19, 327; Abdul Ghafoor and others v. Custodian, Evacuee Property PLD 1968 Lah. 1050; Evacuee Trust Property Board v. Rahim Khan and 3 others 1989 SCMR 1605; 1989 SCMR 1610; 1989 CMR 1636; Secretary, District Evacuee Trust Property v. Qazi Habibullah and 2 others PLD 1991 SC 586; Divisional Evacuee Trust Committee, Karachi v. Abdullah and 2 others 1970 SCMR 503; Pandit Parma Nand v. Nihal Chand and another AIR 1938 PC 195; Baba Kartar Singh Bedi v. Dayal Das and others AIR 1939 PC 201; Raghbir Lala v. Muhammad Said AIR 1943 PC 7; Mahanth Ramasran Das v. Jai Ram Das and another AIR 1943 Pat. 135; Evacuee Trust Property Board, Lahore and another v. Syed Abdul Saleem and others 1990 SCMR 143 and District Evacuee Trust Committee v. Muhammad Umar and others 1990 SCMR 25 ref.

Syed Muhammad Zain‑ul‑Abidin for Petitioner

Ch. Fazal‑e‑Hussain for Respondents.

Date of hearing: 9th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 725 #

2001 M L D 725

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. RASHIDA BEGUM‑‑‑Petitioner

versus

MUHAMMAD AMEEN and 4 others‑‑‑Respondents

Civil Revision No. 1045 of 1990,, heard on 20th November, 2000.

(a) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.39‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 72, 79 & 124‑‑‑Suit for cancellation of power of attorney and sale‑deed‑‑‑Defendant on the basis of power of attorney allegedly executed by' one of the brothers of plaintiff, had executed sale‑deed in respect of property of plaintiff and her brothers in favour of his sons‑‑‑Plaintiff being sister of alleged executant of power of attorney had stated on oath that she or her relatives having not heard of him for more than ten years before filing of the suit, he would be deemed to be dead and he being dead person how could he appoint defendant as his attorney‑‑‑Burden was on defendant to prove that executant of power of attorney in his favour was alive and that both power of attorney or sale‑deed were valid documents‑‑‑Defendant failed to discharge the burden by whatever evidence‑‑‑Suit was rightly decreed by the Trial Court.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑‑

‑‑‑‑Arts.85, 87 & 88‑‑‑Public document‑‑‑Admissibility of certified copies in evidence‑‑‑Document which was inadmissible in evidence, even if exhibited without any objection, could not be legally read into evidence‑‑‑Certified copies of only such documents were admissible in evidence as were public documents as defined in Art. 85, Qanun‑e‑Shahadat, 1984 and only such registered documents were public documents, execution whereof was not disputed.

Khan Muhammad Yusuf Khan Khattak v. S.M Ayub and 2 others PLD 1973 SC 160 ref.

‑‑‑‑S. 115‑‑‑Revisional jurisdiction, exercise of‑‑‑Judgment and decree passed by Appellate Court below being without lawful authority, were set aside by High Court in exercise of its revisional jurisdiction.

Khan Muhammad Virk for Petitioner.

Mian Nisar Ahmad for Respondents.

Date of hearing: 20th November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 729 #

2001 M L D 729

[Lahore]

Before Ch. Ijaz Ahmad, J

PROVINCE OF PUNJAB through Secretary, Housing

and Physical Planning Department, Government of the Punjab, Lahore‑‑‑Petitioner

versus

ADDITIONAL COMMISSIONER (REV.) and 6 others ‑‑‑ Respondents

Writ Petition No. 1309 of 1987, decided on 16th November, 2000.

(a) Interpretation of statutes‑‑‑

‑‑‑‑Preamble of an enactment‑‑‑Object‑‑‑Preamble is key to understand the Act.

(b) Punjab Acquisition of Land (Housing) Act (VIII of 1973)‑‑‑

‑‑‑‑Preamble‑‑‑Object of Punjab Acquisition of Land (Housing) Act, 1973‑‑Punjab Acquisition of Land (Housing) Act, 1973, was enacted for Housing Schemes in Urban and Rural areas of the Province and for matters incidental thereto.

‑‑‑‑Ss. 3, 7, 8, 9, 10 & 15‑‑‑Acquisition of land‑‑‑Maxim: "Sales populi est suprema lex"‑‑‑Applicability‑‑‑Provisions of Punjab Acquisition of Land (Housing) Act, 1973, directly interfered with the inviolable right of the people regarding their disposal of property and they were founded upon the maxim "Sales populi suprema lex".

(d) Maxim‑‑‑

‑‑‑‑" Sales papuli est suprema lex"‑‑‑Meaning‑‑‑Interest of public are supreme and the private interests are subordinate to the interests of the State.

(e) Interpretation of statutes‑

‑‑‑‑ Principle of narrow construction‑‑‑Applicability‑‑‑Where a statute is based upon the maxim "Sales populi est suprema lex", in construing the provisions of such statute the principle of narrow construction is to be adopted with an object of giving benefit to the subjects.

(f) General Clauses Act (X of 1897)‑‑‑

‑‑‑‑S.6‑‑‑Repeal of enactment‑‑‑Fresh legislation on the same subject‑‑Effect‑‑‑Whenever there is repeal of a legislation, the consequences laid in S.6 of General Clauses Act, 1897, have to follow, unless the legislation itself indicates different intention‑‑‑In case the repealed legislation is followed by fresh legislation on the same subject, it is necessary not only to look into the repealed legislation, but also the provisions of repealing legislation‑‑‑Where the legislation is repealed and enacted in substantially the same terms, the new legislation has to be taken to have been drafted with knowledge of the judicial decision on the old, and the same has to be interpreted in the light of those decisions.

Muhammad Aslarti v. Deputy Commissioner, Sheikhupura 1990 MLD 1725; Budget's case (1894) 2 Ch. 557; James v. James (1964) P.303; Fire Auto and Marine Co. Ltd.'s case (1964) 2 QB 687; Veovel Glove Co. .Ltd.'s case (1965) Ch. 148 and Alford v. Alford (1965) P. 117 ref.

(g) Punjab Acquisition of Land (Housing) Act (VIII of 1973)‑‑‑

‑‑‑‑Ss. 3, 7, 8, 9, 10 & 15-‑‑Punjab Acquisition of Land (Housing) Repeal Act (XII of 1985), S.3‑‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑ Acquisition of land‑‑‑Dispute regarding compensation‑‑‑Land was acquired under the provisions of Punjab Acquisition of Land (Housing) Act, 1973‑‑‑Acquisition Collector announced the award of compensation at the rate of Rs.26,672 per acre but the same was enhanced by the Appellate Authority at the rate of Rs.1,26,577.60 per acre‑‑Compensation was enhanced on the basis of S.3 of Punjab Acquisition of Land (Housing) Repeal Act, 1985‑‑‑Validity‑‑‑Under the provision of proviso 1 of S.3 of Punjab Acquisition of Land (Housing) Repeal Act, 1985, the compensation had to be determined under the provisions of Land Acquisition Act, 1894, in case the award had not been made under S.7 of the Punjab Acquisition of Land (Housing) Act, 1973 at the time of commencement of the Repealing Act‑‑‑Award was announced on 5‑11‑1985 and the Repealing Act came into force on 13‑11‑1985, therefore, the compensation orders passed by the Appellate Authority were in violation of the Repealing Act‑‑‑Such orders of the Appellate Authority were set aside and award of the Collector was upheld in circumstances.

Nawabzada Ronaq Ali's case PLD. 1973 SC 236; Muhammad Sabir's case 1995 SCMR 305; F.A. Khan's case PLD 1964 SC 520; Province of East Pakistan v. Muhammad Hossain Mia PLD 1965 SC 1; F.A. Khan v. Government of Pakistan PLD 1964 SC 520; Mst. Amina Begum v. Mehar Ghulam Dastgir PLD 1978 SC 220 and Malik Abdullah v. Multan Development Authority 1986 C L C 2073 ref.

Ijaz Ahmed Chaudhry for Petitioner.

Malik Muhammad Azam Rasool for Respondents.

Date of hearing: 16th November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 740 #

2001 M L D 740

[Lahore]

Before Ch. Ijaz Ahmad, J

TASSADAQ HUSSAIN and another‑‑‑Petitioners

versus

AFZAL MUMTAZ and 2 others-‑‑Respondents

Writ Petition No. 2527 of 1989, heard on 14th November, 2000.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXXII, Rr.3, 4 & 7‑‑‑Appointment of Reader of the Court as guardian for defending the suit against minor‑‑‑Such guardian entering into compromise with the respondent‑‑‑Validity‑‑‑Duty of the Court‑‑‑Trial Court accepted statement of the guardian without applying its judicial mind as to whether compromise arrived at between the parties was for the benefit of minor or not‑‑‑Compromise, therefore, was not in accordance with mandatory provisions of O. XXXII, R.7, C.P.C.

Mst. Sarel Bibi and others v. Shamsul Din Khan and others PLD 1956 Kar. 150; Rashid Ahmad v. The State PLD 1972 SC 271; Mansab Ali v. Amir and 3 others PLD 1971 SC 124; Syed Muhammad Anwar, Advocate v. Sh. Abdul Haq 1985 SCMR 1228; Muhammad Alamgir v. Muhammad Iqbal 1985 CLC 2919; Col. Attaur Rehman v. Ahmad Yar Khan and others PLD 1980 Lah. 181; Jane Margrete William v. Abdul Hamid Mian 1994 SCMR 1555; Muhammad Khan and others. v. Mst. Ghulam Fatima and others 1991 SCMR 970; Muhammad Zahoor v. Lal Muhammad and others 1988 SCMR 322; Muhammad Sharif and another v. Muhammad Afzal and others PLD 1981 SC 246; Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522; Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131; Mst. Sattan v. Waryam and others 1998 CU 59; Nazir Dad Khan v. Qamar Aftab and others 1985 CLC 1122; Ghulam Muhammad Khan v. Allah Ditta 1986 MLD 682; Mst. Afzal Begum and others v. YMCA PLD 1979 SC 18; Muhammad Din v. Sarfraz 1988 CLC 768; Iftikhar Hussain Khan v. Bleant Singh AIR 1946 Lah. 232; Nazir v. Dharam Pal and others AIR 1941 Lah. 47; Mst. Bishan Devi and others v. Jagat Singh and others AIR 1937 Lah. 353; Chand v. Lala Shanti Lal AIR 1942 All. 85; Auodhesh v. Widow of Tribani Prasad and others AIR 1940 Pat. 663; Virji Kallionji v. Emperor AIR 1953 Sindh 95; Bishundeo Narain and others v. Seogani Rai and thers AIR 1951 SC 280; Sh. Shukrullah and others v. Mst. Zohra Bibi and others AIR 1937 PC 35; Mir Ata Ullah Khan v. Sardar Mahboob Ali Khan and others PLD 1965 Kar. 341 and Missal Khan v. Fazal Karim PLD 1963 Pesh. 93 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXXII, Rr.3, 4 & 7‑‑‑Appointment of guardian for defending suit against minor defendant‑‑‑ Compromise by guardian without leave of the Court‑‑‑Validity‑‑ ‑Compromise statement of such guardian recorded without leave of the Court was, violative of R.7 of OXXXII, C.P.C.

Jaffar Abbas and others. v. Ahmad and another PLD 1991 SC 131 ref.

‑‑‑‑Arts. 199 & 203‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑Where revisional Court had passed order in violation of settled law or by misreading of the record, High Court in exercise of its Constitutional jurisdiction would have ample power to interfere with the order of revisional Court.

Muhammad Sharif and others v. Muhammad Afzal and others PLD 1981 SC 246 and Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522 ref.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Order of Appellate Court passed by misreading of evidence on record, without appreciating evidence and without adverting to the reasoning of the Trial Court, being not sustainable in law, was set aside by High Court in exercise of its Constitutional jurisdiction.

Abdul Majeed Khan for Petitioners.

Mirza Naseer Ahmad for Respondents.

Date of hearing 14th November, 2000

MLD 2001 LAHORE HIGH COURT LAHORE 746 #

2001 M L D 746

[Lahore]

Before Maulvi Anwarul Haq, J

ASAD AHMAD ZUBAIRI and others‑‑‑Petitioners

versus

Dr. MUHAMMAD MUNAWAR KHAN and others‑‑‑Respondents

Civil Revision No. 500 of 1989, heard on 27th November, 2000.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VIII, Rr.1 & 10‑‑‑Filing of written statement‑‑‑Extension of time to file written statement‑‑‑Striking off defence‑‑‑Time given for filing of written statement ordinarily would not exceed thirty days, but no penalty had been prescribed in case of failure on the part of defendant‑‑‑Trial Court was vested as well as jurisdiction to extend time to file written statement‑‑‑Defence of defendant for non‑filing of written statement could only be struck off when defendant who, by order of Court, was required to file written statement, had failed to comply with the same.

Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others 1987 SCMR 1365 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.115‑‑‑Revision‑‑‑No case for interference with order of Appellate Court having been made out within meaning of S. 115, C.P.C., revision was dismissed with costs.

Masood Ahmad Ghuman for Petitioner. No. 1.

Muhammad Aslam Hayat for Respondent No. 1.

Nemo for the Remaining Respondents.

Date of hearing: 27th November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 748 #

2001 M L D 748

[Lahore]

Before Maulvi Anwarul Haq, J

Syed MUKHTAR HUSSAIN NAQVI‑‑‑Petitioner

versus

Syed ALI GHAZANFAR RIZVI‑‑‑Respondent

Civil Revisions Nos. 1274 to 1277 of 1988, decided on 15th November, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VIII, R.10‑‑‑Striking off defence for non‑filing of written statement‑‑Trial Court; without examining the plaint, proceeded to strike off defence of defendants and decreed the suit for non‑filing of written statement‑‑‑Nothing was on record to show that summons issued to defendants required them to file a written statement or not‑‑‑Any routine order stating that written statement be filed, could not be interpreted to mean an order requiring defendant to file written statement‑‑‑Trial Court decreed the suit without applying conscious mind to contents of the plaint and said decree was upheld by Appellate Court‑‑‑Courts below having acted with material irregularity in exercise of their respective jurisdictions while passing judgments and decrees, such judgments and decrees were set aside by High Court.

Mst. Hakumat Bibi v. Imam Din PLD 1987 SC 22 and Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others 1987 SCMR 1365 and Shamroz Khan and another v. Muhammad Amin and others PLD 1978 SC 89 ref.

Nemo for Petitioner.

Muhammad Naqi Syed for Respondent.

Date of hearing: 15th November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 751 #

2001 M L D 751

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD HASEEB‑‑‑Petitioner

versus

BOARD OF INTERMEDIATE & SECONDARY EDUCATION, LAHORE through Chairman‑‑‑Respondent

Writ Petition No. 18847 of 2000, decided on 7th November, 2000.

(a) Educational institution‑‑‑

‑‑‑‑ Re‑evaluation of answer book‑‑‑Examiner being the best Judge of the performance of candidate qua the answer of questions, High Court had no jurisdiction to give direction to the Authority for its re‑evaluation.

Salma Afroze's case PLD 1992 SC 263; Khurshid Ahmed's case 1999 CLC 694; Saeed Ahmad Khan's case PLD 1974 SC 151; Aman Ullah Khan's PLD 1990 SC 1092; Azhar Ali's PLD 1971 Lah. 972; M. Ramiz‑ul-Haq's case PLD 1992 SC 221; Rana Muhammad Ajmal's case 1984 CLC 378 and Rana Muhammad Ajmal's case 1984 CLC 3316; Board of Intermediate and Secondary Education, Lahore v. Saima Azad 1996 SCMR 676 and Tahir Saeed Qureshi v. Board of Intermediate and Secondary Education, Sargodha 1996 SCMR 1872 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Petitioner could not point out that respondent‑Authority had violated its Rules and Regulations‑‑Petitioner had also failed to allege any specific malice against the respondent-Board‑‑‑Constitutional petition was not maintainable.

Ali Mir's case 1984 SCMR 433 and Saeed Nawaz's case PLD 1981 Lah. 371 ref.

Qazi Muhammad Arshad Bhatti for Petitioner.

Shahid Waheed, Legal Advisor for Respondents,

MLD 2001 LAHORE HIGH COURT LAHORE 754 #

2001 M L D 754

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD RASHID and others‑‑‑Appellants

versus

KHALID ASGHAR and others‑‑‑Respondents

Regular Second Appeals Nos.4 and 13 of 1985, heard on 17th November, 2000.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss.4 & 15‑‑‑Suit for pre‑emption ‑‑‑Right of pre‑emption ‑‑‑Meaning and nature‑‑‑Agricultural land‑‑‑Right of pre‑emption would accrue to the person who was armed with any of the qualifications mentioned in S. 15 of Punjab Pre‑emption Act, 1913, to acquire the property in preference to other persons‑‑‑Successful pre‑emptor would stand substituted for the vendee in documents of sale and ultimately would become himself the vendee of the land.

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss.4, 15, 21 & 25‑‑‑Civil Procedure Code (V of 1908), O. XX, R.14‑‑Suit for pre‑emption ‑‑‑Accrual of title to pre‑emptor ‑‑‑Court, after having satisfied that pre‑emptor had a right to acquire suit land according to law, would fix consideration with orders to deposit same for payment to the vendee ‑‑‑As soon as said deposit was made, title would accrue to pre‑emptor per terms of O.XX, R.14. C.P.C.

Gultaj Begum v. Lal Hussain and others PLD 1980 SC (AJ&K) 60; Shahabuddin and others v. Maryam Bibi and others 1995 MLD 45; Sh. Allah Diya Saleem v. Abdul Qadeer PLD 1971 Lah. 311 and Jiwibai w/o Karsondas Bhatia v. Ramkuwar Shriniwas Murarka Agarwala AIR 1947 Nag. 17 ref.

Syed Muhammad Zainul Abiddin for Appellants.

Ch. Imdad Ali Khan for Respondent No. 1.

Nemo for the Remaining Respondents.

Date of hearing: 17th November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 764 #

2001 M L D 764

[Lahore]

Before Falak Sher and Muhammad Asif Jan, JJ

THE STATE‑‑‑Appellant

versus

SAHIB KHAN and 9 others‑‑‑Respondents

Criminal Appeals Nos.823, 198 and Criminal Revision No. 167 of 1991, heard on 6th October, 1997.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/307/148/149‑‑‑Appreciation of evidence‑‑‑Three eye‑witnesses had given a consistent straightforward and truthful account of the occurrence‑‑‑Out of all those three eye‑witnesses two suffered fire‑arm injures‑‑‑Witnesses had been subjected to lengthy cross‑examination but nothing had been brought on record to shake their consistency and credibility‑‑‑Motive was admitted‑‑‑Prosecution case emerged as being nearer to the truth and nothing improbable was available about the presence of the eye‑witnesses as their presence at the place of occurrence was fortified by their injuries‑‑‑No indication was given of a free fight‑‑‑Injuries to the deceased persons were specifically attributed 'to only two persons‑‑‑Accused who pleaded total denial and false implication due to enmity could not lead any evidence m defence‑‑‑Case of prosecution having been proved beyond all reasonable doubts., prosecution version was accepted and the accused were sentenced accordingly.

M. Aslam Malik for the State.

Sardar Muhammad Latif Khan Khosa for Respondents.

Date of hearing: 6th October, 1997.

MLD 2001 LAHORE HIGH COURT LAHORE 771 #

2001 M L D 771

[Lahore]

Before Sheikh Abdur Razzaq and Dr. Munir Ahmad Mughal, JJ

NOOR KHAN and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 296 of 1996, heard on 18th November, 1997.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/148/149‑‑‑Appreciation of evidence‑‑‑Fire‑arm injury to the deceased by the accused was fully supported by medical evidence‑‑‑Presence of co‑accused at the place of occurrence was doubtful as the same was not supported by the medical evidence or any other independent evidence‑‑Witnesses who were examined by the prosecution had close relationship with the complainant party ‑‑‑Co‑accused were acquitted of the charges giving them the benefit of doubt‑‑‑Only one fire shot having been alleged' to have been made by the accused alone, his conviction under S.302(a), P.P.C. was not proper, but keeping in view the ends of justice, sentence awarded to him was altered to under S. 302(b), P.P.C. and he was sentenced to imprisonment for life.

Kh. Sultan Ahmad for Appellants.

Syed Ali Raza for the State.

Malik Muhammad Qasim Joya for the Complainant.

Date of hearing: 18th November, 1997.

MLD 2001 LAHORE HIGH COURT LAHORE 778 #

2001 M L D 778

[Lahore]

Before Sheikh Abdur Razzaq, J

ZAHOOR AHMAD‑‑‑Petitioner

versus

MANZOOR AHMAD and another‑‑‑Respondents

Civil Revision No. 206‑D of 1986/BWP, heard on 28th November, 2000.

Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts.117 & 120‑‑‑Parenthood‑‑‑Proof‑‑‑Fact, proof of‑‑‑Dispute was with regard to parenthood of the plaintiff and assertion was trade that the mutation of inheritance excluded the name of the plaintiff‑‑‑Mother of the plaintiff got divorce from her first husband and married father of the plaintiff‑‑‑Defendant produced copy of second Nikahnama of the mother of the plaintiff and also produced school leaving certificate in proof of the date of birth of the plaintiff‑‑‑Documents produced by the defendant showed shat the plaintiff was not the son of the deceased‑‑‑Trial Court decreed the suit in favour of the plaintiff but Appellate Court disbelieved the evidence produced by the plaintiff and dismissed the suit‑‑‑Validity‑‑‑Appellate Court had rightly believed the evidence of the defendant‑‑‑Plaintiff had failed to establish that he was son of the deceased‑‑‑Judgment of Appellate Court was based upon the findings after discussing, analysing and scanning the evidence of the parties in true perspective and there was no misreading, non‑reading of any evidence on the part of Appellate Court‑‑‑Petition was dismissed in ,circumstances.

Syed Iqbal‑ud‑Din Ahmed for Petitioner.

A.A. Ansari for Respondents.

Date of hearing: 28th November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 782 #

2001 M L D 782

[Lahore]

Before Sheikh Abdur Razzaq, J

AHMAD BAKHSH‑‑‑Petitioner

versus

PROVINCE OF PUNJAB through Collector, Bahawalpur‑‑‑Respondent

`Civil Revision No.249‑D of .1979, heard on 15th November, 2000.

Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑O.XVII, R.3 & S.115‑‑‑Specific Relief Act (I of 1877), S. .42‑‑‑Suit for declaration' ‑‑‑Closing of evidence and dismissal of suit‑‑‑Revisional jurisdiction, exere6e of‑‑‑Plaintiff failed to produce his evidence for one reason or the other despite various opportunities were granted to him‑‑‑Trial Court, in circumstances, was not left with any alternate, but to invoke the provision of O.XVII, R. 3, C.P.C. and such order of Trial Court was upheld in appeal‑‑‑Orders of Courts below not suffering from any illegality or material irregularity could not be interfered with in revision.

A.R. Tayyib for Petitioner.

M.A. Farazi for Respondent.

Date of hearing: 15th November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 784 #

2001 M L D 784

[Lahore]

Before Sheikh Abdur Razzaq, J

BASHIR AHMAD‑‑‑Petitioner

versus

Mst. MAQSOOD MAI and another‑‑‑Respondents

Civil Revision No.458 of 1984/BWP, heard on 12th October, 2000.

Punjab Pre‑emption Act (I of 1913)‑‑‑‑

‑‑‑‑Ss. 15 & 21‑‑‑Civil Procedure Code (V of 1908), O.III, RA & OAXIII, R.3‑‑‑Suit for pre‑emption ‑‑‑Suit tiled by daughter of vendor on ground of superior right of pre‑emption was decreed on the statements of one of the vendees and their duly appointed counsel‑‑‑Other vendee had challenged the decree contending that he being not present on the date when statements were recorded, decree passed without his consent was not binding on him‑‑‑Validity‑‑‑Suit was decreed on the statements of one of the vendees and their counsel and nothing was on record that the vendee had withdrawn his Wakalatnama from his counsel‑‑‑Counsel duly appointed by both the vendees being authorised to enter into compromise with the other party, contention of vendee was devoid of any force‑‑‑Judgments and decrees passed by the Courts below not suffering from any illegality or material irregularity, could not be interfered with in revision by the High Court.

Abdul Khaliq v. Khuda Bakhsh and 4 others 1989 CLC 1316; Kulsoombai and 5 others v. Mst. Shirinbai and 6 others 1989 CLC 234 and Dr. Ansar Hassan Rizvi v. Syed Mazhar Hussain Zaidi and 3 others 1971 SCMR 634 ref.

P.A. Farooqi for Petitioner.

Zafar Ali Hashmi for Respondent No. 1. .

Date of hearing: 12th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 788 #

2001 M L D 788

[Lahore]

Before Maulvi Anwarul Haq, J

SARFRAZ KHAN and another‑‑‑Petitioners

versus

RETURNING OFFICER FOR ELECTIONS OF UNION COUNCIL

No.122‑139, DISTRICT SARGODHA and another‑‑‑Respondents

Writ Petition No.24977 of 2000, decided on 19th December, 2000.

Punjab Local Council Election Rules, 2060‑‑‑

‑‑‑‑R. 18(3)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑ Returning Officer, jurisdiction of‑‑‑Rejection of nomination papers of the candidate‑‑‑ Returning Officer having not been satisfied that the candidate was Matriculate, papers of nomination were rejected‑‑‑Contention of the candidate was that the papers could not have been rejected by the Returning Officer and the matter should have been left to be decided by Election Tribunal after the elections‑‑‑Validity‑‑‑Jurisdiction of Returning Officer under the provisions of R. 18(3), Punjab Local Council Election Rules, 2000, could not be limited or circumscribed as contended by the candidate‑‑'‑ Nature of inquiry and satisfaction as to existence of conditions mentioned in R. 18(3) of Punjab Local Council Election Rules, 2000 had been left to the Returning Officer‑‑‑High Court in exercise of Constitutional jurisdiction refused to interfere in the order passed by the Returning Officer‑‑‑Returning Officer under the provisions of R.18(3) of Punjab Local Council Election Rules, 2000, had sufficient powers to reject nomination papers on his satisfaction as to the existence of the conditions laid down therein for such rejection.

Dr. M. Mohy‑ud‑Din Qazi for Petitioners.

MLD 2001 LAHORE HIGH COURT LAHORE 789 #

2001 M L D 789

[Lahore]

Before Ch. Ijaz Ahmad, J

FARRUKH HASSAN ZAIDI‑‑‑Petitioner

versus

THE CHAIRMAN, WAPDA and 5 others‑‑‑Respondents

Writ Petitions Nos.5537, 5684, 9883, 13934, 13933, 9507, 9709, 9718 9794, 9795, 11157, 9873, 11037, 11036, 9243, 8570, 8262, 7959, 7730 13935. 13936, 13937, 13938, 13939, 13940, 13941, 16872, 11078 and 21392 of 2000, heard on 21st November, 2000.

(a) Estoppel‑‑‑‑

‑‑‑‑Promissory estoppel, principle of‑‑‑Vested right once accrued cannot be taken away by notification retrospectively and principle of promissory estoppel is attracted in circumstances.

Salauddin's case PLD 1991 SC 546; Army Welfare's case 1992 SCMR 1652 and Collector, Customs and Central Excise, Peshawar v. Messrs Raees Khan Ltd. 1996 SCMR 83 ref.

(b) Locus poenitentiae, principle of‑‑‑‑

‑‑‑‑Applicability‑‑‑When vested right has once accrued, the same cannot be taken away by a notification retrospectively‑‑‑Principle of locus poenitentiae is applicable in circumstances.

Pakistan through Secretary v. Muhammad Hamayatullah Farooqi PLD 1969 SC 407 and Director, Social Welfare, N.‑W.F.P‑ v. Saad Ullah Khan 1996 SCMR 1350 = 1996 PLC (C.S.) 927 ref.

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑ ‑Locus oenitentiae, principle of‑‑Applicability‑‑‑ Locus standi‑‑‑Office order, retrospective effect of‑‑‑Dispute was with regard to continuance of studies of children of non‑employees of WAPDA in the school owned by WAPDA‑‑‑Earlier admissions were granted to the children but subsequently after few years WAPDA decided to withdraw the facility ‑‑‑Validity‑‑‑Office order had prospective effect and not retrospective‑‑‑Relief granted by High Court under Art. 199 of the Constitution must be in relation to the grievance of the petitioner and not to the grievance of any third person‑‑‑Principle of locus poenitentiae was applicable in the case and to avoid administrative problems to WAPDA High Court accepted the Constitutional petition to the extent of only the children of the petitioners accordingly.

Chairman, Regional Transport Authority v. Pakistan Mutual Insurance Company PLD 1991 SC 14; Gel Caps v. Federation of Pakistan NLR 1999 Civil 563; Messrs Presson Manufacturing Ltd. v. Secretary, Ministry of Petroleum and Natural Resources 1995 MLD 15; Muhammad Balal v. The Principal, National College Pakistan Engineering, Faisalabad 1991 MLD 1605; Pakistan through Secretary, Ministry, of Finance v. Muhammad Hamayat Ullah Farooqi PLD 1969 SC 407; Lt.‑Col. G.L. Battachary v. The State PLD 1964 SC 503; Messrs Army Welfare Sugar Mills v. Federation of Pakistan 1992 SCMR 1652; Chairman, Selection Committee/Principal, King Edward Medical College v. Waseem Zameer Ahmad 1997 SCMR 15; Khurram Pervaiz v. University of Engineering and Technology, Lahore 1997 SCMR 1466; Ch. Jalai‑ud‑Din v. Settlement Commissioner, Lahore 1968 SCMR 995; Anjuman Arain and 5 others' case PLD 1973 Lah. 500; Abdul Qadoos Bari's case 1988 CLC 645; and Lt.‑Col. Nafees‑ud‑Din Ansari's case PLD 1989 Lah. 26 ref.

Kh. Mukhtar A. Butt for Petitioner.

Ilyas Khan and A.R. Madni for Respondents.

Date of hearing: 21st November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 795 #

2001 M L D 795

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL RASHEED and 13 others‑‑‑Petitioners

versus

GHULAM GHAZI and another‑‑‑Respondents

Civil Revision No.2495 of 1989, heard on 15th December, 2000.

West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)‑‑‑‑

‑‑‑‑S. 15‑‑‑Redemption of mortgaged land‑‑‑Limitation‑‑‑Suit for declaration was filed on the ground that the defendants failed to get their mortgaged land redeemed in due time‑‑‑Defendants controverted the claim of the plaintiffs‑‑Contention of the defendants was that before expiry of period of limitation proceedings for redemption had been filed and were pending with the Revenue Authorities‑‑‑Defendants were in possession of suit land and the mortgage was effected by means of, a mutation‑‑‑Effect‑‑‑Limitation for redemption was to start from the date of attestation of the mutation‑‑Both the Courts below had rightly dismissed the suit in circumstances.

Abdul Hanan and 8 others v. Kapoor Khan and 16 others 1970 SCMR 633 fol.

Sh. Naveed Masood on behalf of Maqbool Ahmad for Petitioners.

Inayat Ullah Khan for Respondents.

Date of hearing: 15th December, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 797 #

2001 M L D 797

[Lahore]

Before Sheikh Abdur Razzaq, J

AURANGZEB ABBASI‑‑‑Petitioner

versus

CENTRAL BOARD OF REVENUE, ISLAMABAD through

Chairman and another‑‑‑Respondents

Writ Petition No.619 of 2000, decided on 9th May, 2000.

Constitution of Pakistan (1973)‑‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑-‑Vehicle, detention of‑‑‑Customs Authorities detained the vehicle for verification of its import documents‑‑‑No incriminating evidence could be collected against the petitioner by the Authorities‑‑‑Validity‑‑‑Where the Authorities were not in possession of any evidence enabling them to detain the vehicle; the detention memo. made by the Authorities was illegal and the same was set aside‑‑‑High Court directed the Authorities to hand over the vehicle to the petitioner‑‑‑Petition was allowed accordingly.

Muharram Ali Abbasi for Petitioner:

Raja Iftikhar Javed, Standing Counsel and Zaka Farooq Sheikh for Respondent No. l:

Respondent No.2 in person.

Date of hearing: 9th May, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 802 #

2001 M L D 802

[Lahore]

Before Ch. Ijaz Ahmad, J

AES PAK GEN. (PVT.) COMPANY through Officer/Manager‑‑‑Petitioner

versus

LAHORE DEVELOPMENT AUTHORITY, LAHORE

through Director‑General, LDA Plaza, Lahore. ‑‑‑Respondent

Criminal Miscellaneous No.2529/M of 2000, decided on 15th January, 2001.

(a) Lahore Development Authority Act (XXX of 1975)‑‑‑‑

‑‑‑S. 38‑‑‑Constitution of Pakistan (1973), Art. 13‑‑‑Criminal Procedure Code (V of 1898), Ss.403 & 561‑A‑‑‑Quashing of order‑‑‑Rent deed executed between the parties did not debar the Lahore Development Authority (respondent) to file the complaint against the petitioner‑Company under S. 38 of the Lahore Development Authority Act, 1975‑‑‑Magistrate without adverting to such fact and also to S. 38 of the said Act had accepted the application of accused petitioner (Company) filed under S.249‑A, Cr.P.C. without assessing or discussing the offence and without recording entire evidence‑‑Order of acquittal passed by the Magistrate was, therefore, void‑‑‑Even otherwise offence under S.38 of the Lahore Development Authority Act, 1975, was a continuing offence‑‑‑Article 13 of the Constitution was not attracted where previous prosecution or punishment was null and void or the offence was a continuing one‑‑‑Sessions Court had rightly dismissed the revision petition filed by the accused‑Company against the proceedings taken by the Magistrate against it on the second complaint lodged by the respondent‑‑‑Impugned order was supported by cogent reasons to which no exception could be taken‑‑‑Petition was dismissed accordingly.

Shehyar's case 1997 MLD 1672; Muhammad Rafique's case 1999 MLD 1423; Muhammad Azam's case 1998 PCr.LJ 1123; Manzoor Hussain's case PLD 1998 Lah. 239 and Mark Mifsud Mrs. Rosemarie Morley's case PLD 1999 Kar. 336 distinguished.

Muhammad Sarwar's case PLD 1969 SC 278; Maqbool's case AIR 1957 SC 494 and Kirpa Ram's case AIR 1965 All. 160 ref.

(b) Constitution of Pakistan (1973)‑‑‑‑

‑‑‑‑Art. 13‑‑‑Protection against double punishment and self‑incrimination‑‑Article 13 of the Constitution is not attracted where previous prosecution or punishment is null and void or abortive.

Maqbool's case AIR 1957 SC 494 ref.

‑‑‑‑Art. 13‑‑‑Protection against double punishment and self‑incrimination‑‑Clause (a) of Art.13 of the Constitution has no application in case of continuing offences‑‑‑If a person is prosecuted for having committed an offence during a particular period, there is no bar for prosecuting him again for committing a similar offence on some other date.

Kirpa Ram's case AIR 1965 All. 160 ref.

Shaukat Umar Pirzada for Petitioner.

Mian Muzaffar Hussain for Respondents.

MLD 2001 LAHORE HIGH COURT LAHORE 807 #

2001 M L D 807

[Lahore]

Before Zafar Pasha Chaudhary, J

MUHAMMAD YAR alias YARI‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.99‑J of 1999, heard on 18th January, 2001.

(a) Qanune‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.39‑‑‑Confession by accused while in police custody‑‑‑Any statement made by an accused person while in police custody is inadmissible in evidence and the same cannot be read in evidence.

(b) Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S.164‑‑‑Confession‑‑‑Actual words used by the maker of a confession have to be reproduced in order to prove the confessional statement.

‑‑‑‑Ss.302(b), 201 & 364‑‑‑Qanune‑e‑Shahadat (10 of 1984), Art.40‑‑Appreciation of evidence‑‑‑Evidence of extra judicial confession brought on record apart from being extremely insufficient was totally inadmissible 'and could not be treated as a part of evidence‑‑‑Record did not specifically show as to where and in what manner the dead body of the deceased was found or recovered‑‑‑Statements of the witnesses were confined only to the extent that the accused had led them towards the place where he committed the murder and he also pointed out the place where he threw the dead body and these statements were made while the accused was in police custody‑‑‑Mere pointation to a place without its being associated with any other evidence of commission of murder would by itself not be covered by Art. 40 of the Qanun‑e‑Shahadat, 1984 and the evidence of so‑called detection or disclosure was not admissible‑‑‑Presumption, however strong might be, could not be treated as a substitute of evidence and no safe reliance could be placed thereon‑‑‑Charge of Qatl‑e‑Amd under S. 302, P.P.C. was, therefore, not established against the accused and for the same reasons the offence under S.201, P.P.C. could not be held to have been established‑‑‑Convictions and sentences of accused under S. 302(b) & 201, P.P.C. were consequently set aside‑‑‑Credible evidence, however, was available on record to prove that the accused had taken away the deceased deceitfully with him and thereafter he was murdered‑‑‑Recovery of the incriminating articles belonging to the deceased at the instance of the accused for which no explanation was given by him had led only to one inference that the abduction had been made in order to commit murder of the deceased‑‑‑Conviction and sentence of accused under S.364, P.P.C. were upheld in circumstances.

Ramkishan Mithnlal Sharma and others v. State AIR 1955 SC 104; Jagdev and 12 others v. The State 1971 PCr.LJ 162 and Khan Muhammad and another v. The State 1981 SCMR 597 ref.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑ .

‑‑‑‑Art. 40‑‑‑How much of information received from accused may be proved‑‑‑If a confessional statement discloses a certain fact associated or concerned with the commission of the murder, then the same is admissible and will be accepted as evidence.

Ch. Nisar Ahmad Kausar for Appellant.

Muhammad Azam for the State.

Date of hearing: 18th January, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 816 #

2001MLD816

[Lahore]

Before Sheikh Abdur Razzaq, J

R.M. GULISTAN‑‑‑Petitioner

versus

DIRECTOR, EXCISE AND TAXATION, RAWALPINDI DIVISION

RAWALPINDI and 3 others‑‑‑Respondents

Writ Petition No.2292 of 1999, heard on 27th April, 2000

Punjab Finance Act (IX of 1997)‑‑‑‑

‑‑‑‑S.7‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Tax on luxury vehicles‑‑‑Word "plying" as used in S.7 of Punjab Finance Act, 1997‑‑‑ Applicability‑‑‑ Vehicle owned by the petitioner was registered in Province other than Punjab while the same was being used in Punjab‑‑Authorities had imposed the tax under S.7 of Punjab Finance Act, 1997, and the vehicle‑was impounded‑‑‑Contention of the petitioner was that as word "plying" had been used in S.7 of Punjab Finance Act, 1997, so the same would be applicable to only those vehicles which were being used for hire or .reward and it would not be applicable to all other vehicles‑‑Validity‑‑‑Tax had been imposed upon all vehicles falling in that category irrespective of the fact that the vehicles were being plied for hire and reward or not‑‑‑No distinction existed between words "plying" and "driving" as used in the provisions of S.7 of .Punjab Finance Act, 1997, and contention of the petitioner did not fit in the scheme of things‑‑‑No such intention of the Legislature could be gathered from the provisions of S.7 of Punjab Finance Act, 1997‑‑‑All such vehicles which were being used/plied by its owners were liable to the tax whether such vehicles had been registered in Punjab or outside Punjab‑‑‑Vehicle of the petitioner lead rightly been assessed to tax by the Authorities.

Hafiz S.A. Rehman for Petitioner.

Syed Sajjad Hussain Shah, A.A. ‑G. for Respondents Nos. l and 2.

Respondents Nos.3 and 4 in person.

Date of hearing: 27th April, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 823 #

2001 M L D 823

[Lahore]

Before Amir Alam Khan and Mian Muhammad Najam‑uz‑Zaman, JJ

NABI BAKHSH alias BUGGA‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal S.C. (T) No.26 of 1995/BWP, decided on 17th May, 2000.

West Pakistan Arms Ordinance (XX of 1965)‑‑‑

‑‑‑‑S.13‑‑‑Appreciation of evidence‑‑‑Investigating Officer could not safely be relied upon when the witnesses from the public had been disbelieved‑‑Weapon was not recovered from the exclusive possession of the accused, but admittedly was recovered in his absence from an iron box lying in the house which was locked and the key was provided by the ladies‑‑‑No one from the locality was asked to join the recovery proceedings‑‑‑Number of the rifle mentioned in the recovery memo. was different from the number engraved on the rifle produced before the Trial Court‑‑‑Possibility of the case having been fabricated against the accused thus could not be ruled out‑‑‑Accused was extended the benefit of doubt and acquitted in circumstances.

Muhammad Ashraf Mohandra for Appellant.

S M.A. Farazi for the State

Date of hearing: 17th May, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 826 #

2001 M L D 826

[Lahore]

Before Maulvi Anwarul Haq, J

PEHLWAN and 3 others‑‑‑Petitioners

versus

AHMAD KHAN and 4 others‑‑‑Respondents

Writ Petition No.23232 of 2000, decided on 15th December, 2000.

Pleadings‑‑‑

‑‑‑‑ Pleadings 'would not constitute evidence and whatever was pleaded had to be proved, unless admitted by the other party.

Abdul Majid v. Syed Muhammad Ali Shamim and 10 others 2000 SCMR 1391 ref.

Ghulam Muhammad Sajhara for Petitioners.

MLD 2001 LAHORE HIGH COURT LAHORE 828 #

2001 M L D 828

[Lahore]

Before Aftab Farrukh, J

ABDUL HAMID‑‑‑Petitioner

versus

GHULAM, NABI and 2 others‑‑‑Respondents

Criminal Miscellaneous No.82 of 1981, decided on 23rd February, 1981.

Criminal Procedure Code (V of 1898)‑‑‑ .

‑‑‑‑Ss. 200 & 202‑‑‑Penal Code (XLV of 1860), Ss.302, 307, 34 & 109‑‑Complaint case‑.‑‑Accused filed counter‑complaint of the same incident in Trial Court against complainant, his father, brother and widow of the deceased after four months of the occurrence‑‑‑Complaint was entrusted to Magistrate for enquiry, who reported that trial of the case would further lead to real points‑‑‑Validity‑‑‑Belated story advanced by accused was false and frivolous, after due deliberations, to rescue himself‑‑‑Enquiry Magistrate in his report had put the persons to trial without realising the mental torture and agony of trial of a murder charge‑‑‑Counter‑complaint of accused was rightly dismissed by Trial Court on cogent reasons‑‑‑Order of dismissal of complaint having been passed by a Court having jurisdiction, did not call for interference.

R.A. Awan for Petitioner.

MLD 2001 LAHORE HIGH COURT LAHORE 830 #

2001 M L D 830

[Lahore]

Before Riaz Kayani and Bashir A. Mujahid, JJ

Haji RIAZ‑UD‑DIN‑‑‑Appellant

versus

MUHAMMAD IQBAL and others‑‑‑Respondents

Criminal Appeal No. 252 of 1992, heard on 31st January, 2001.

(a) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑SA17(2)‑‑‑Appeal against acquittal in a complaint case‑‑‑Filing of memorandum of appeal not obligatory after grant of leave to appeal‑‑‑ Complainant aggrieved by an order of acquittal is in the first instance required to make an application to the High Court under S.417(2), Cr.P.C. seeking leave to appeal and once leave is granted he may present such an appeal to the High Court‑‑‑Enjoining the complainant to once again present memorandum of appeal to the High Court would be requiring him to repeat the contents of the application already made which exercise, would definitely involve duplication and for this reason word "may" has been used in subsection (2) of S. 417, Cr.P.C. which does not make it obligatory upon the complainant to file a fresh memo. ‑‑‑Provisions of S.417(2), Cr.P.C. are procedural in nature and matters relating to procedure never spell out rigours appended to a command of law, in absence of penal consequences‑‑Application for leave to appeal after the grant of leave by itself assumes the form of an appeal and filing of fresh memorandum of appeal is not essential.

Sardar Muhammad Akbar v. Qasim and 2 others PLD 1988 Pesh. 130 disagreed.

Bashir Ahmad v.'The State 1990 PCr.LJ 780 ref.

(b) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.417(3)‑‑‑Limitation for filing application for grant of special leave to appeal from an order of acquittal‑‑‑Provisions of subsection (3) of S.417, Cr.P.C. speak of an application under subsection (2) of S. 417, Cr.P.C. for the grant of special leave to appeal to be filed within 60 days and it does not take into account any appeal‑‑‑Any other interpretation placed on subsection (3) would be doing violence to the Statute which the law does not permit.

Ch. M. Anwar Bhindar for Appellant.

Ch. Waheed‑ud‑Din Virk for the Complainant.

Miss Yasmeen Sehgal, Asstt. A.‑G. for the State.

Date of hearing: 31st January, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 834 #

2001 M L D 834

[Lahore]

Before Ali Nawaz Chowhan, J

MUHAMMAD HASAN‑‑‑Petitioner

versus

Mst. KANEEZ ‑‑‑ Respondent

Civil, Revision No.2069‑D of 1996, decided on 6th July, 1999, (a) Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑S.115‑‑‑Revisional jurisdiction, exercise of‑‑‑High Court while sitting as a Court of error had to see the circumstances on which the findings of the Courts below were to be appreciated.

(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑‑

‑‑‑‑S.5 & Sched.‑‑‑Suit for recovery of "Mehr"‑‑‑Appellate Court below had advanced very convincing reasons while passing the judgment with regard to payment of amount of "Mehr"‑‑‑Petitioner had not been able to point out any material irregularity or infirmity in the judgment and decree passed by Appellate Court‑ below‑‑‑Such judgment and decree could riot be interfered with by High Court in exercise of its revisional jurisdiction.

Muhammad Riaz for Petitioner.

Saif‑ul‑Haq Ziay for Respondent, Date of hearing: 6th July, 1999

MLD 2001 LAHORE HIGH COURT LAHORE 837 #

2001 M L D 837

[Lahore]

Before Malik Muhammad Qayyum and Raja Muhammad Sabir, JJ

FEDERATION OF PAKISTAN and others‑‑‑Appellants

versus

Messrs AMMAR TEXTILE MILLS (PVT.) LIMITED and others‑‑‑Respondents

Intra‑Court Appeals Nos.758, 759 and 760 of 1999 in Writ Petition No.7692 of 1999, decided on 2nd October,.2000.

Imports and Exports (Control) Act (XXXIX of 1950)‑‑‑ .

‑‑‑‑S. 3‑‑‑Allocation of quota for export‑‑‑Quota for export was a valuable right and the quota was to be considered to be a property‑‑‑Valuable rights stood vested in the exporters by allocation of the quota in their category pass book of which they could not be denied both on the theory of vested right and principle 9f promissory estoppel ‑‑‑Such rights could only be taken away by the Legislature through an enactment and not by an Executive by issuing a notification superseding the previous one‑‑‑Vested rights clearly survived the executive action taken in that behalf.

Government of Pakistan v. Facto Belarus Tractors Limited 2000 SCMR 112; Husein Industries Limited v. Textile Quota Management Directorate and others 1997 MLD 737; Messrs M.Y. Electronic Industries (Pvt.) Ltd. v. Government of Pakistan and others 1998 SCMR 1404; Messrs Gadoon Textile Mills and others v. WAPDA and others 1997 SCMR 641; Messrs Army Welfare Sugar Mills v. Federation of Pakistan 1992 SCMR 1652 and Pakistan through Secretary, Ministry of Commerce v. Salahuddin PLD 1991 SC 541 ref.

Sher Zaman, Dy. A.‑G. for Appellants.

Syed Mansoor Ali Shah and S. Abid Mumtaz Tirmizi for Respondents:

Date of hearing: 13th September, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 844 #

2001 M L D 844

[Lahore]

Before Maulvi Anwarul Haq, J

AMMAD KHAN and another‑‑‑Petitioners

versus

MUHAMMAD NAWAZ through Legal Heirs‑‑‑Respondent

Civil Miscellaneous No.5 of 1993 in Regular Second Appeal No. 142 of 1969, heard on 2nd October, 2000.

Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S.52‑‑‑Transaction pendente lice‑‑‑Bona fide purchaser with consideration‑‑‑Effect of decree over the rights of such purchaser‑‑Validity‑‑‑Such transaction, made during pendency of litigation, cannot affect the rights of any other party to the litigation, which may be acquired by it under the decree passed by the Court‑‑‑Even a bona fide purchaser with consideration pendente lite is bound by the result of the litigation because his right in such property would be subject to the rights of the parties to the litigation as finally determined by the Court.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.12(2)‑‑‑Decree, setting aside of‑‑‑Plea of collusion‑‑‑Earlier appeal in the High Court was decided on the basis of a compromise‑‑‑Matter had already been settled on payment of Rs.5,000 by the appellants in Lower Appellate Court but on account of some dispute as to the quantum of the amount settled between the parties the matter did not proceed further and Lower Appellate Court decided the appeal on its .merits‑‑‑Mere fact that earlier the second appeal was decided on the basis of a compromise would not make the proceedings collusive between the parties thereto‑‑‑Application under S.12(2), C.P.C. was dismissed in circumstances.

Hakim Ghulam Rasool v. Sh. Imdad Hussain and another PLD 1968, Lah. 501 rel.

Malik Abdul Sattar Chughtai for Petitioners.

Inayatullah Khan Niazi for Appellants (in R.S.A. No. 142 of 1969).

Date of hearing: 2nd October, 2000. .

MLD 2001 LAHORE HIGH COURT LAHORE 847 #

2001 M L D 847

[Lahore]

Before Zafar Pasha Chaudhary, J

RAHIM DAD‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.1038‑B of 2000, decided on 11th December, 2000.

Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/11‑‑‑Penal Code (XLV of 1860), Ss.420/468/471‑‑‑Bail‑‑Nikahnama between the accused and the minor girl (abductee) did not prima facie, give rise to a presumption of valid marriage between them, especially when no one from the side of the complainant who was father of the girl had participated in the Nikah Ceremony which was registered at a far off place‑‑Abductee was minor at the time of her abduction by the accused and admittedly they were not man and wife at that time and the offence under S.363, P.P.C. was clearly constituted against him‑‑‑Complainant's allegation that the abductee had been abducted for an illicit purpose was supported by the accused's own version‑‑‑Act committed by the accused who had already married twice was not only illegal but was also contrary to all norms of morality and social standards‑‑‑Bail was refused to accused in circumstances.

Muhammad Munir Paracha for Petitioner.

Razzaq A. Mirza for the Complainant.

MLD 2001 LAHORE HIGH COURT LAHORE 850 #

2001 M L D 850

[Lahore]

Before Sheikh Abdur Razzaq, J.

SOHAIL AHMAD‑‑‑Petitioner

versus

ADDITIONAL DISTRICT JUDGE and 2 others‑‑‑Respondents

Writ Petition No.3387 of 2000/BWP, heard on 30th November, 2000.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss. 2(c)(i) & 13(2)(i)‑‑‑Constitution of Pakistan (1973) Act. 199‑‑Constitutional petition‑‑‑Recovery of rent‑‑‑Order recovering rent from tenant who had denied relationship of landlord and tenant‑‑‑Jurisdiction of Rent Controller‑‑‑Scope‑‑‑Rent Controller ordered ejectment of such tenant and also ordered him to pay to landlord amount of rent for more than two and a half years‑‑‑Rent Controller did not frame issue regarding default in payment of rent‑‑‑Effect‑‑‑Even if tenant had not paid rent for the period mentioned in order of the Rent Controller, no order for its recovery could be passed by the Rent Controller in circumstances and the only remedy available to the landlord was to file a suit for its recovery‑‑‑Orders of Rent Controller with regard to recovery of rent being coram non judice were set aside.

Sardar Jamshed Iqbal Khakwani for Petitioner.

M.A. Rasheed Chaudhry for Respondents.

Date of hearing: 30th November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 852 #

2001 M L D 852

[Lahore]

Before Zafar Pasha Chaudhary, J

ZAFAR ABBAS ‑‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.13 and Criminal Revision No.35 of 1990, decided on 4th December, 2000.

(a) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑Ss.302, 304, Part II & 307‑‑‑Appreciation of evidence ‑‑‑Sentence‑‑Occurrence had taken place in the house of accused‑‑‑Deceased and the injured witness had received injuries in one and the same incident‑‑‑Motive stated by the prosecution was illicit liaison between the deceased and the said injured lady‑‑‑Revolver recovered at the instance of the accused had matched with the bullets recovered from the place of occurrence and also with the lead bullets extracted from the dead body of the deceased‑‑‑Accused was seen in the company of the deceased soon before the occurrence and at the time of his arrest he was wearing the blood‑stained clothes which indicated his concern with the incident which had taken place in his house"‑Injured lady was the niece of the accused who had been brought up by him like his daughter‑‑‑Accused appeared to have inflicted injuries on the deceased and the lady on having seen them in some objectionable condition by losing his self‑control‑‑‑Conviction of accused under S.302, P.P.C. was set aside in circumstances and instead he was convicted under S.304, Part, II, P.P.C. and sentenced to the imprisonment already undergone by him which was 4‑1/2 years‑‑‑Sentence of five years' R.I. awarded to accused under 5.307, P.P.C. was also reduced to the period undergone by him thereunder.

Syed Ali Bepari v. Nibaran Mollah and others PLD 1984 SC 502 ref.

(b) Criminal trial‑‑‑

‑‑‑‑Benefit of doubt‑‑‑Benefit of doubt, if any, should be extended to the accused‑‑‑Similarly if theory favourable to the accused is reasonably spelt out from the facts and circumstances of the case, the defence should be afforded the benefit of the same as well.

Sh. Zameer Hussain for Appellant.

Raja Ayub Kiani and Sardar Muhammad Ishaque for Respondents.

Date of hearing: 21st November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 864 #

2001 M L D 864

[Lahore]

Before Maulvi Anwarul Haq, J

LIAQAT ALI RANJHA and another‑‑‑Petitioners

versus

DISTRICT JUDGE, MANDI BAHAUDDIN and another‑‑‑Respondents

Writ Petition No.3855 of 2001, decided on 13th March 2001.

(a) Punjab Local Government Election Ordinance (V of 2000)‑‑‑‑

‑‑‑‑S.14‑‑‑Punjab Local Government Election Rules, 2000, R.18(4)‑‑Election for the seats of Nazim and Naib Nazim‑‑‑Acceptance of nomination papers‑‑‑Appeal‑‑‑Nomination papers tiled by candidates were accepted by Returning Officer but‑on appeal, District Returning Officer rejected papers on the ground that candidates who had been declared "Ghair Ameen" by Courts, could not be allowed to contest the election‑‑‑Appeal before District Returning Officer though was incompetent, but candidates who were adjudged to be "Ghair Ameen" by the High Court and Supreme Court, their nomination papers were rightly rejected.

(b) Constitution of Pakistan (1973)‑‑‑‑‑

‑‑‑‑Art.l99‑‑‑Constitutional jurisdiction, exercise of‑‑‑Constitutional jurisdiction was not to be exercised in aid of injustice and‑ to perpetuate the illegality.

Dr. Mohyuddin Qazi for Petitioners.

Khalifa Shujaat Amin for Respondent No.2.

Ch. Muhammad Jefiangir Wahla, A.A.G. (on Court's call).

MLD 2001 LAHORE HIGH COURT LAHORE 868 #

2001 M L D 868

[Lahore]

Before Maulvi Anwarul Haq, J

Messrs TRADING ENGINEERS (INTERNATIONAL)

(PVT.) LIMITED‑‑‑Appellant

versus

WATER AND SANITATION AGENCY OF THE LAHORE

DEVELOPMENT AUTHORITY through Managing

Director and 3 others‑‑‑Respondents

First Appeal from Order No.89 of 1989, decided on 17th January, 2001

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 29‑‑‑Interest on award‑‑‑Ante litem interest, pendente lite interest and future interest awarded by umpire‑‑‑Validity‑‑‑Ante litem interest and interest for the period the matter remained pending before arbitrators, could not be awarded by the arbitrators‑‑‑Award of interest by arbitrators after the date of award was justified on principle contained in S.29 of Arbitration Act, 1940‑‑‑Arbitrators were not possessed of jurisdiction to award ante litem and pendente litem future interest.

Messrs A.Z. Company v. Maula Bakhsh PLD 1996 SC 505 and Ghulam Abbas v. Trustees of the Port of Karachi PLD 1987 SC 393 ref.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S.15‑‑‑Modification of award‑‑‑Invalid portion of the Umpir's award was separable from the valid portion of the same‑‑‑Such award need not to be set aside, but could be modified in terms of S.15, Arbitration Act, 1940.

Muhammad Afzal Sandhu for Appellant.

Waseem Majeed Malik for Respondent.

Nemo for Respondents Nos.2 to 4.

Date of hearing: 11th January, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 890 #

2001 M L D 890

[Lahore]

Before Maulvi Anwarul Haq, J

EHSAN‑UL‑HAQ and 13 others‑‑‑‑Petitioners

versus

ZULFIQAR KHAN and 7 others‑‑‑Respondents

Civil Revision No. 18 of 1986, heard on 11th January, 2001.

(a) Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑-O.XVII, R.5‑‑‑Adjournment‑‑‑Absence of Presiding Officer‑‑‑Reader of Court, duty of‑‑‑Scope‑‑‑Where the parties were handed over the slips of paper specifying the next date, the same date given by the Reader might have become the date fixed for proceeding with the suit or proceedings.

Nowsheri Khan v. Said Ahmad Shah 1983 SCMR 1092 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑O.XVII, R.1‑‑‑Adjournment‑‑‑Expression, "day fixed for further hearing of the suit"‑‑‑Meaning‑‑‑Date of hearing implies a date on which some act for furtherance of the suit or the proceeding is to be taken.

Mst. Ghulam Sakina and 6 others v. Karim Bakhsh and 7 others PLD 1970 Lah. 412; Rahim Bux and another v. Gul Muhammad and 2 others PLD 1971 Lah. 746; Messrs Ghulam Farid Muhammad Latif and others v. The Central Bank of India Limited, Lahore PLD 1954 Lah. 575; Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 and Sheikh Abdul Rehman v. Shib Lal Sahu AIR 1922 Pat. 252 ref.

‑‑‑‑O.XVII, .R.1‑‑‑Adjournment‑‑‑Non‑appearance of plaintiff‑‑‑Dismissal of suit for non‑prosecution‑‑‑Date fixed for summoning of defendant was a date of hearing‑‑‑Summoning of defendant was an act germane to the proceedings in suit and such date was a date of hearing as the same was important step in the suit‑‑‑Suit was rightly dismissed for non‑prosecution, as summoning of plaintiff was date of hearing.

Pakistan v. Khuda Yar and another PLD 1975 SC 678 and Sheikh Abdul Rehman v. Shib Lal Sahu AIR 1922 Pat. 252 ref.

(d) Void order‑‑‑‑

‑‑‑‑ Void order, remedies against‑‑‑Scope‑‑‑Void order is a species of illegal orders‑‑‑Where the remedies are available against void order, then the same cannot be ignored or set aside in collateral proceedings merely on the ground that it could not have been lawfully passed.

Messrs. Conforce Ltd. v. Syed Ali Shah and another PLD 1977 SC 599 ref.

(e) Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑O.XVII, Rr.2, 5, O.IX, R.9 & Ss. 115, 151‑‑‑Dismissal of suit for non-prosecution‑‑‑Setting aside of Much order‑‑‑Adjournment given by Reader of the Court in absence of the Presiding Officer‑‑‑Non‑appearance of plaintiff on the date fixed for summoning of defendant‑Trial Court dismissed the suit for non‑prosecution‑‑‑Contention of the plaintiff was that the adjournment was given by the Reader of the Court and the same was not date fixed for hearing‑‑‑Validity‑‑‑Plaintiff had neither availed the remedy under O. IX, R. 9, C.P.C., nor under S.151, C.P.C. for setting aside order of Trial Court‑‑‑Revision by plaintiff was dismissed in circumstances.

A. K. Dogar for Petitioners.

Nemo for Respondents.

Date of hearing: 11th January, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 912 #

2001MLD912

[Lahore]

Before Ch. Ijaz Ahmad, J

Messrs MUHAMMAD AYYUB & COMPANY through Partner‑‑‑Petitioner

versus

MUNICIPAL COMMITTEE, SHEIKHUPURA through Administrator

and 5 others‑‑‑Respondents

Writ Petition No. 2255 of 2001, decided on 13th February, 2001.

(a) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑ Maintainability‑‑‑ Suit for declaration‑‑‑Petitioner had already filed suit which was pending adjudication and agreement executed between the parties also contained arbitration clause‑‑‑Constitutional petition filed by petitioner was not maintainable, in circumstances.

Mehmood Ali Butt's case PLD 1997 SC 823; Sohall Balal Corp.'s case KLR 1997 Rev. Cases 27; Messrs Pacific Multi National Pvt. Ltd.'s case PLD 1992 Kar. 283; Messrs Walk Orient Power and Light Ltd., Gulberg Lahore's case 1998 CLC 1178; Javed Hotel Pvt. Ltd.'s case PLD 1994 Lah. 315; Messrs Presson Manufacturing Ltd.'s case 1995 MLD 15; Malik Mehraj Khalid's case PLD 1988 Lah. 325; Abdullah Mehmood Peer Muhammads case PLD 1971 SC 130; Abdul Rehman Mayat and another's case 1988 SCMR 1722; Ch. Tagbir Ahmad Siddiky's case PLD 1968 SC 185; Project Director, Balochistan Minor Irrigation and Development's case 1999 SCMR 121; Raja Muhammad Ramzan and 21 other's case 1994 SCMR 1482 and Shaukat Afzal's case 1993 SCMR 1810 ref.

(b) Administration of justice‑

‑‑‑‑Each and every case is to be decided on its own facts and circumstances.

Iqbal Mahmood Awan for Petitioner.

MLD 2001 LAHORE HIGH COURT LAHORE 919 #

2001MLD919

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ISHAQ‑‑‑Appellant

versus

Hakeem MUSHTAQ AHMED ‑‑‑‑Respondent

Second Appeal from Orders Nos. 225, 226 and 227 of 2000, heard on 18th January, 2001.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss.13(2)(vi). 13(5‑B) &, 15‑‑‑Ejectment of tenant on ground of reconstruction‑‑‑ Restoration of possession after reconstruction ‑‑‑Ejectment of tenant was sought on the ground of reconstruction of premises‑‑‑Agreement was arrived at between the parties to the. effect that after reconstruction of premises within specified period, premises would be let out to the tenant subject to payment of rent agreed between the parties‑‑‑Possession of premises having not been given to the tenant after reconstruction according to agreement, tenant filed application for restoration of possession which was accepted and landlord was directed to deliver possession of premises to the tenant‑‑‑Landlord had contended that Rent Controller had no jurisdiction to pass order as application tiled by the tenant was not competent under S.13(5‑B), West Pakistan Urban Rent Restriction Ordinance, 1959‑‑Contention, of landlord was not tenable as matter was not governed by S.13(5‑B) but was governed by the order passed by Rent Controller with agreement of the parties‑‑‑Rent Controller, in circumstances, had rightly directed the landlord to deliver the possession to the tenant in terms of the agreement..

Chaudhary Munawar Khan and another v. Muhammad Hanif and another 1997 SCMR 517 ref.

Hafiz Khalil Ahmad for Appellant.

Ch. Muhammad Lehrasap Khan for Respondent.

Date of hearing: 18th January; 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 925 #

2001 M L D 925

[Lahore]

Before Maulvi Anwarul Haq, J

LAHORE DEVELOPMENT AUTHORITY through Director

General and another‑‑‑Appellants

versus

Messrs ALICON LIMITED‑‑‑‑Respondent

First Appeal from Order No. 63 of 1988, decided on 11th January, 2001.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss.20 & 8‑‑‑Arbitrator, appointment of‑‑‑Role of umpire‑‑‑Non‑recording of independent reason of his own by third arbitrator‑‑‑Validity‑‑‑Third arbitrator was appointed to decide the matter in case of difference of opinions between the two arbitrators‑‑‑Third arbitrator was Chairman arid had agreed with the award of one of the arbitrators and the reasons stated therein‑‑Third arbitrator was not required to record independent reasons of his own and it was a majority award and could not be invalidated for non‑recording of reasons by the third arbitrator.

Chouthmal Jivrajjee Poddar v. Ramchandra Jivrajjee Poddar and others AIR 1955 Nag. 126; Abdul Hamid v. M.H. Qureshi PLD 1957 SC 145 and Abdul Ghani v. Inayat Karim and others PLD 1960 SC 98 ref.

(b) Arbitration Act (X of 1940)‑‑‑‑

‑‑‑‑S.20‑‑‑Arbitration‑‑‑Award, setting aside of‑‑‑Failure to submit the award within time prescribed by law‑‑‑Parties raised no such objection before the arbitrators while the proceedings were pending and they kept on joining the proceedings‑‑‑Effect‑‑‑Where the record did not show any objection by the party to the continuance of arbitration proceedings after four months and no such objection was raised in the objection petition, High Court declined to set aside the award.

Haji Ghulam Mohyuddin v. Federation of Pakistan PLD 1967 Lah. 204 ref.

Maqbool Ellahi Malik, A.‑G:, Punjab for Appellants.

Mian Nisar Ahmad for Respondent.

Dates of hearing: 5th, 6th, 11th and 19th December, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 936 #

2001 M L D 936

[Lahore]

Before Ch. Ijaz Ahmad, J

Mst. FARAH‑UL‑MOMENEEN‑‑‑‑Petitioner

versus

BOARD OF INTERMEDIATE AND SECONDARY

EDUCATION, LAHORE through its Chairman and 3 others‑‑‑‑Respondents

Writ Petition No. 19619 of 2000, heard on 8th February, 2001.

Constitution of Pakistan (1973)‑‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Educational institution‑‑‑Using unfair means in examination by the candidate‑‑‑Penalty‑‑ Petitioner/candidate on the basis of evidence on record was found guilty of using unfair means in examination and was disqualified from appearing in the examination and two subsequent examinations by the Authorities‑‑ Authorities had given concurrent findings of fact against the candidate which were based on record‑‑‑Such findings could not be interfered with by High Court because High Court had no jurisdiction to substitute its own findings in place of the findings of Tribunal below‑‑‑Constitutional petition was dismissed being not maintainable with the observation that action should also be taken against officials/officers of the Authorities as candidates could not be in a position to use unfair means in the examination without the active support of examination supervisory staff employees of the Authority.

Summer Pervaiz's case PLD 1971 SC 838; 1974 SCMR 279; Muhammad Sharif's case PLD 1981 SC 246; Abdul Rehman Bajwa's case PLD 1981 SC 522; Mussaduq's case PLD 1973 Lah. 600; Saeed Ahmad's case PLD 1974 SC 151; Amanullah Khan's case PLD 1990 SC 1092; Saeed Nawaz's case PLD 1981 Lah. 371 and Ali Mir's case 1984 SCMR 433 ref.

Ahmad Awais for Petitioner.

Sh, Shahid Waheed, Legal Advisor for Respondents.

MLD 2001 LAHORE HIGH COURT LAHORE 942 #

2001 M L D 942

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

PERGO TRADING LIMITED‑‑‑Appellant

versus

TRUST LEASING CORPORATION LTD. through

Chief Executive and another‑‑‑Respondents

Execution First Appeal No. 82 of 2001, decided on 8th February, 2001.

Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance (XXV of 1997)‑‑‑

‑‑‑‑Ss. 6 & 21‑‑Transfer of Property Act (IV of 1882), Ss.53‑A & 54‑‑‑Suit for recovery of loans‑‑‑Execution of decree‑‑‑Banking Court, on filing execution petition against judgment‑debtor had passed order qua the sale of property in question for execution of decree passed in favour of the decree-holders‑‑‑Appellant in his application had claimed that property in question had already been purchased by him through agreement of sale in his favour and that he had already paid the consideration to the vendor/judgment-debtor‑‑‑Appellant had failed to place on record evidence to show that alleged payments certified in agreement of sale were ever paid by the appellant to the vendor and also no proof was placed on the record that appellant had entered upon the possession of the property in question under any agreement to sell‑‑‑Agreement to sell would not create any title in the property as per provisions of S.54 of Transfer of Property Act, 1882‑‑Appellant, on the basis of alleged agreement to sell could not resist execution of the decree and alleged possession of the appellant by virtue of agreement to sell was not possession within the purview of S.53‑A of Transfer of Property Act, 1882, in absence of any independent proof that appellant had entered upon the possession of the property under the agreement‑‑Where the transaction was colourable and with an object to defeat the right of the creditor that was not valid in law.

Naib Subedar Taj Muhammad v. Yar Muhammad Khan 1992 SCMR 1265 and Fazal v. Mehr Din 1997 SCMR 837 ref.

Haq Nawaz Chatta for Appellant.

MLD 2001 LAHORE HIGH COURT LAHORE 948 #

2001 M L D 948

[Lahore]

Before Maulvi Anwarul Haq, J

MAQBOOL AHMAD‑‑‑‑Petitioner

versus

Mst. ZAINAB BIBI and 6 others‑‑‑‑Respondents

Civil Revision No.2843 of 1989, heard on 19th January, 2001.

(a) Specific Relief Act (I of 1877)‑‑‑‑

‑‑‑‑S.42‑‑‑Suit for declaration‑‑‑Plaintiff had claimed that she was entitled to 1/4th share in the suit land whereas her brother had transferred the entire land to his son through gift‑‑‑Transferee of the, land had failed to prove that parties had entered into any compromise whereby share of plaintiff was delivered to him‑‑‑Father of transferee had himself admitted that share of the plaintiff had not been delivered to her‑‑‑Courts below had rightly decreed the suit in circumstances.

(b) Civil Procedure Code (V of 1908)‑‑‑, ‑‑‑‑O.XIV, R.1, O.VI. R.5 & S.35‑A‑‑‑Trial Court dealing with the original matter ought to examine the pleadings while framing issues and should not hesitate to resorting to obtain better statement if such need arose‑‑‑Where the defendant in the course of evidence, proceeded to set up the case which had no nexus with the plaintiff and the matter remained in Courts for more than quarter of a century, process of law and process of Court having been abused, such was the fit case for imposition of special costs.

In the present case the process of law and. t a process of Court had been abused by the party. In the state of pleadings not only a trial was conducted but the matter remained in Courts for more than quarter of century. The Courts dealing with the original matters ought to examine the pleadings while framing issues and should not hesitate in resorting to obtain better statement if such need arose. I am certain that in the present case had the pleadings been adverted to at the relevant time even the need for trial was not to arise. It was in the course of evidence that the defendant proceeded to set up the case that the plaintiff lady had been given her share in the suit land which plea had no nexus with the plaint. This was a fit case for imposition of special costs.

Muhammad Noman for Petitioner.

Nemo for Respondents.

Date of hearing: 19th January, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 954 #

2001 M L D 954

[Lahore]

Before Maulvi Anwarul Haq, J

Major (Retd.) MUHAMMAD ZAMAN ‑‑‑‑Petitioner

versus, Mst. MAQBOOL BIBI and 6 others‑‑‑‑Respondents

Civil Revision No.2853‑D of 1989, heard on 19th January, 2001. .

Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑O.XXXIV, R.1‑‑‑Limitation Act (IX of 1908), Art.148‑‑‑Suit for redemption ‑‑‑Limitation‑‑‑Revisional jurisdiction, exercise of‑‑‑Plaintiff had claimed that since defendants had not redeemed mortgaged land within the time prescribed by law, he had become the owner of land‑‑‑Defendants were in possession of the suit land‑‑‑Sale of mortgage rights in favour of predecessor‑in‑interest of plaintiff, constituted acknowledgement which had given a fresh start to the period of limitation‑‑‑Suit filed before 'expiry of sixty years as provided under Art.148 of imitation Act, 1908 was premature‑‑Courts below had concurrently found that the defendants had remained in possession of suit land throughout and had rightly found that it was a suit for possession of the mortgaged land which would be barred as provisions of relevant law had since been declared .to be repugnant to Injunctions of Islam‑‑‑Defendants being in possession of suit land, no question of suit being barred by time would be relevant.

Muhammad Zaman and 4 others v. Sikandar Khan and .5 others 1991 CLC 197 ref:

Zahid Hussain Khan for Petitioner.

Nemo for Respondents.

Date of hearing: 19th January, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 957 #

2001 M L D 957

[Lahore]

Before Maulvi Anwaraf Haq, J

RAMZAN and 2 others‑‑‑‑Petitioners

versus

LARA through Legal Heirs and another‑‑‑‑Respondents

Civil Revision No. 153‑D of 1988, heard on 24th November, 2000.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VI, R.17‑‑‑Pleadings, amendment of‑‑‑Scope‑‑‑Where the amendment did not change the nature, 'or complexion of the suit or the same did not constitute the change of cause of action; such amendment was allowable.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 17‑‑‑Attestation of document‑‑‑Provisions of Art.17 of Qanun‑e-Shahadat, 1984‑‑‑Applicability‑‑‑Where the document was executed long before enforcement of Qanun‑e‑Shahadat, 1984, provision of Art.17 of Qanun‑e‑Shahadat was not applicable.

‑‑‑‑Arts. 120 & 132‑‑‑Fact, admission of‑‑‑Failure to cross‑examine any fact deposed in examination‑in‑chief‑‑‑Effect‑‑‑Such statement of a witness was deemed to be accepted.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 132‑‑‑Civil Procedure Code (V of 1908), S.115 & O. VIII, Rr.3 & 5‑‑‑Revision‑‑Misreading of evidence‑‑‑Execution of disputed document was neither denied in pleadings, nor in evidence before Trial Court‑‑‑Both the Courts below in their judgments had assumed that the execution was denied‑‑‑Validity‑‑‑Both the Courts below had misread the evidence on record pertaining to the execution of the document in circumstances.

(e) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S. 45‑‑‑Mutation, cancellation of‑‑‑Disputed mutation was entered by lawfully appointed attorney‑‑‑Power of attorney was cancelled after the attestation of mutation‑‑‑Revenue Officer cancelled the mutation on the basis of revocation of power of attorney‑‑‑Validity‑‑‑Revenue Officer had no lawful authority to cancel the mutation in circumstances.

(f) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 226‑‑‑Power of attorney‑‑‑Lawful acts of attorney‑‑‑Principal is bound by lawful acts of the attorney, so long as he remains to be so appointed.

Syed Humayun Zaidi and 4 others v. Mst. Hussain Afroza 1999 SCMR 2718 ref.

(g) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Specific performance of agreement to sell‑‑‑Concurrent, findings of both the Courts below‑‑‑Misreading of evidence‑‑‑Execution of agreement was denied by the defendant neither in pleadings nor in evidence before Trial Court‑‑‑Both the Courts below presumed that the execution of agreement was denied and suit as well as the appeal was dismissed by Trial Court and Lower Appellate Court respectively‑‑‑Validity‑‑‑Where the agreement was executed by the defendant and the plaintiffs had performed their part of contract and were in possession in part performance, the plaintiffs were entitled to specific performance of the same‑‑‑Judgments and decrees of both the Courts were set aside.

Sh. Abdul Aziz for Petitioners.

Arshad Mehmood Chaudhry for Respondents.

Date of hearing: 24th November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 965 #

2001 M L D 965

[Lahore]

Before Maulvi Anwarul Haq, J

INAYAT ALI ‑‑‑‑Petitioner

versus

GHULAM MUSTAFA and another‑‑‑‑Respondents

Civil Revision No.878 of 1987, heard on 1st November, 2000.

(a) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑Ss.39 & 44‑‑‑Record of Rights ‑‑‑Jamabandi‑‑‑Entries of column of Lagan, otherwise, not corroborated by any evidence could not take precedence over the column of cultivation‑‑‑Party relying on Lagan column as against cultivation column would have to produce evidence in support of its plea‑‑‑Entries in column of Lagan, unlike the entries in column of ownership and column of possession did not enjoy presumption of correctness and unless and until it was proved as a fact that the possession was relatable to title as being claimed, presumption would be that the person recorded in the column of possession as tenant was in fact a tenant in the present record in the column of ownership.

Shad Muhammad v. Khan Poor PLD 1986 SC 91 ref.

(b) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑‑

‑‑‑‑Ss. 39 & 44‑‑‑Record of Rights ‑‑‑Jamabandi‑‑‑Entries of column of Lagan, not corroborated by any evidence‑‑‑Relying on such entries the plaintiff claimed ownership over the suit‑land and both the Courts below decided the matter in favour of the plaintiff‑‑‑Both the Courts below had placed implicit reliance on the entry in the column of Lagan‑‑‑Validity‑‑'Where the entry by itself was treated to be the evidence of the plea of the plaintiff, both the Courts below had proceeded to read the documentary evidence on record in a manner which was contrary to the settled law‑‑‑Both the Courts had acted with material irregularity in exercise of their jurisdiction while passing the judgments‑and decrees and the same could not be sustained‑‑Judgments and decrees of both the Courts below were set aside and the suit was dismissed.

Shad Muhammad v. Khan Poor PLD 1986 SC 91 ref.

‑‑‑‑ Oath against oath‑‑‑Where oath is against oath, one who has the burden to prove on his shoulders fails in such an eventuality.

(d) Evidence‑‑‑‑

‑‑‑‑ Rules of evidence applicable to the Courts in "e country are in fact the rules of prudence.

(e) Qanun‑e‑Shahadat (10 of 1984)‑‑‑‑

‑‑‑Art.2(4)‑‑‑Proved fact‑‑‑Explained.

A fact is said to be proved when after considering the matter before it, the Court either believes it to exist; or considers its existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists.

Jariullah Khan for Petitioner.

Rana Abdul Jabbar Khan for Respondent No. 1.

Nemo for the Remaining Respondents.

Date of hearing: 1st November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 974 #

2001 M L D 974

[Lahore]

Before Maulvi Anwarul Haq, J

Rao ABDUL HAMEED‑‑‑‑Petitioner

versus

Mst. NASIM AKHTAR and others‑‑‑‑Respondents

Civil Revision No.479 of 1985, heard on 30th October, 2000.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXIII, R.3 & O.XLIII, R.1(m)‑‑‑Compromise‑‑‑Refusal of Court to record the compromise‑‑‑Such order of refusal is appealable under O.XLIII, R.1(m), C.P.C.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXIII, R.3‑‑‑Contract Act (IX of 1872), S.2(a)‑‑‑Compromise‑‑‑Offer made by defendant during cross‑examination‑‑‑Contention of the plaintiff was that in the light of the offer made by the defendant, the suit was to be decreed as compromised‑‑‑Trial Court dismissed the suit whereas the Lower Appellate Court decreed the same‑‑‑Validity‑‑‑Statement was a supporting offer made casually and not genuinely by the defendant in course of his cross‑examination in reply' to a question put by the counsel of the opposite-party, primarily intended to discharge the burden of proving placed upon him under an issue‑‑‑Such statement could not be interpreted as a proposal within the meaning of S.2(a) of Contract Act, 1872‑‑‑Lower Appellate Court had acted with material irregularity in exercise of its jurisdiction while passing the judgment and decree and as such the same was set aside and the judgment and decree of the Trial Court was restored.

Azizur Rahman and others v. Muhammad Afzal Khan and another PLD 1956 (W.P.) Pesh. 55 ref.

Dr. Mohyuddin Qazi and Ghulam Sabir for Petitioner., Jariullah Khan for Respondent No. 1.

Nemo for Respondent No.2.

Date of hearing: 30th' October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 983 #

2001 M L D 983

[Lahore]

Before Syed Zahid Hussain, J

ABDUL SATTAR and 11 others‑‑‑‑Appellants

versus

MANZOOR HUSSAIN and 43 others‑‑‑‑Respondents

Regular Second Appeal No.56 of 2000, heard on 24th November, 2000.

(a) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.42‑‑‑Suit for declaration‑‑‑Plaintiffs had sought declaration that they being daughters of predecessor‑in‑interest of the parties were entitled to inherit the left‑over of their deceased father according to their respective shares and had also challenged mutation of inheritance adversely affecting their right and interest‑‑‑Defendants had admitted that plaintiffs were also legal heirs of the deceased and were entitled to their respective shares under the law, but had claimed that plaintiffs had relinquished their shares in the inheritance in favour of the defendants‑‑‑Defendants had failed to prove by any convincing and cogent evidence that plaintiffs had relinquished their shares‑‑‑Courts below concurrently decreed the suit holding plaintiffs to be entitled to their respective shares‑‑‑Concurrent findings of Courts below based on record and not suffering from any misreading or non‑reading of evidence, could not be interfered with.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

(b) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.42‑‑‑‑Civil Procedure Code (V of 1908), Ss. 96 & 100‑‑‑Suit for declaration‑‑‑ Referring parties to pursue their appeal before Appellate Court below‑‑‑Suit having been decreed defendants filed appeal before Appellate Court below which remanded the matter to the Trial Court for the reasons that statements of witnesses had not been recorded on proper oath in view of judgment of High Court reported as 1991 MLD 48‑‑‑Pending matter before the Trial Court said judgment of High Court was reconsidered and a different view was taken‑‑‑Trial Court referred the parties to pursue their appeal before the Appellate Court below‑‑‑Defendants had contended that Trial Court could not have so referred the parties‑‑‑Validity‑‑‑Contention was repelled firstly because the Trial Court had taken such a step on the statement of the parties and secondly that said order was not even challenged by the parties nor any objection was raised in that respect before Appellate Court below where appeal remained pending for about more than three years.

1991 MLD 48 and Ghulam Ali and 2 others v. Mat. Ghulam Saswar Naqvi PLD 1990 SC 1 ref.

Syed Mukhtar Abbas for Appellants.

M.A. Zafar for Respondents.

Ch. Muhammad Hussain Naqshbandi for Respondent No.37.

Date of hearing: 24th November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 988 #

2001 M L D 988

[Lahore]

Before Maulvi Anwarul Haq, J

Kh. IRFAN HAMID‑‑‑‑Petitioner

versus

Kh. AZIZ ALAM and 13 others‑‑‑‑Respondents

Civil Revision No. 87 of 1987, heard on 11th December, 2000.

(a) Specific Relief Act (I of 1877)‑‑

‑‑‑‑S. 15‑‑‑Partial performance of contract‑‑‑Agreement of sale executed between the parties and power of attorney executed by vendor lady in favour of his attorney showed that whole land in dispute and not a part thereof was to be sold to the venue‑‑‑Sale of portion of land by attorney in favour of son of deceased vendee was wholly without lawful authority‑‑‑Courts below had rightly concluded that transaction smacked of fraud and mala fides being based on collusion with attorney who had tried to deprive the lady of the land.

Razia Sultana Bano and 4 others v. Muhammad Sharif and 9 others 1993 SCMR 804 and Wali and 2 others v. Manak Ali and 2 others PLD 1965 SC 651 ref.

(b) Power of Attorney Act (VII of 1882)‑‑‑ .

‑‑‑‑S.2‑‑‑Contract‑ Act (IX of 1872), S. 227‑‑‑Power of attorney‑‑‑Scope‑‑Power of attorney which had empowered attorney to sell whole of the land in favour of the purchaser, had to be strictly construed and its recitals could not be utilized by attorney for partial sale of land in favour of the original purchaser or after his death in favour of his successors.

Ch. Khurshid Ahmad for Petitioner.

Respondents Nos‑.1 to 11: Ex parte.

Ch. Mushtaq Ahmad Khan for Respondents Nos. 12 and 13.

Mian Nisar Ahmed for Respondent No. 14.

Date of hearing: 11th December, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 995 #

2001 M L D 995

[Lahore]

Before Ghulam Mehmood Qureshi, J

MUHAMMAD NAWAZ and 9 others‑‑‑Petitioners

versus

ADMINISTRATOR/SETTLEMENT COMMISSIONER

and others‑‑‑‑Respondents

Writ Petition No.504‑R of 1981, heard on 3rd October, 2000.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑

‑‑‑‑S. 3‑‑‑Settlement Scheme NO.VIII‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Transfer of property‑‑‑Property in question occupied by its occupant in 1958 was purchased by petitioner and submitted B.S. Form under Settlement Scheme No.VIII for its transfer‑‑Authorities rejected the Form on ground that property was occupied by the petitioner after the target date viz. 1‑1‑1976‑‑‑Validity‑‑‑Petitioner in his capacity as assignee of original occupant was in possession of property and was entitled for its transfer as being assignee from the original occupant‑‑Possession of petitioner was very much covered under definition of "possession" as given in Cl. (i) of Part I (Chap.I) of Settlement Scheme No.VIII Scheme For the Management and Disposal of Available Properties, 1979 and his possession was established long before the target date (1‑1‑1976)‑‑‑High Court, in settlement cases, while exercising jurisdiction under Art. 199 of the Constitution would try whenever possible, to adjust and accommodate as many displaced persons as possible‑‑‑Order passed by Authorities was declared to be illegal and case was remanded to be decided afresh after affording parties the opportunity of hearing without dislodging the occupants from the portions in their respective possession.

Mst. Shahjehan Begum v. Mst. Shabbir Fatima and another PLD 1991 SC 614 and Mst. Shahzad Begum and 19 others PLD 1991 SC 617 ref.

Taqi Ahmed Khan and Zakaur Rehman for Petitioner.

Abdul Aziz Qureshi for Respondents.

Ghafran Khurshid Imtiazi for Applicant (in C.,M. No. 11 of 1998).

Date of hearing: 3rd October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 1003 #

2001 M L D 1003

[Lahore]

Before Ch. Ijaz Ahmad, J

ALI MUHAMMAD and 3 others‑‑‑Petitioners

Versus

Mst. PATHANI and 2 others‑‑‑Respondents

Writ Petition No. 1797 of 1990, decided on 29th November, 2000.

(a) Pre‑emption‑‑‑

‑‑‑‑ Pre‑emptor becomes owner of the property from the date of payment of the pre‑emption money.

Akram's case PLD 1984 SC 334; Maulvi Abdul Qayyum's case 1992 SCMR 241 and Dr. Niaz Muhammad Mann's case 1988 SCMR 1016 ref.

(b) Pre‑emption‑‑‑

‑‑‑‑ Pre‑emption decree‑‑‑Filing of execution petition after prescribed period‑‑‑Effect‑‑‑Filing of execution petition in the pre‑emption decree after prescribed period has no force‑‑‑Limitation Act (IX of 1908), Art.182.

Dr. Niaz Muhammad MNN's case 1988 SCMR 1016; Ali Ahntad's case 1972 SCMR 322; Faqir Muhammad's case PLD 1974 Note 56 at p.95; Allah Wasaya's case 1981 CLC 1202 and Ali Ahmad's case PLD 1973 Lah. 207 ref.

‑‑‑‑S. 21‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑‑Maintainability‑‑‑Pre‑emption suit‑‑‑Time‑barred execution petition‑‑‑Concurrent findings of fact by Courts below ‑‑‑Validity‑--Tribunals below having given concurrent findings of fact against the petitioner‑‑‑Constitutional petition was not maintainable Ghulam Rasool's case PLD 1971 SC 376; Khuda Bakhsh's case

1974 SCMR 279; Muhamamd Sharif's case PLD 1981 SC 246 and Abdul Rehman Bajwa's case PLD 1989 SC 522 ref.

MLD 2001 LAHORE HIGH COURT LAHORE 1013 #

2001 M L D 1013

[Lahore]

Before Maulvi Anwarul Haq, J

Sardar SULTAN AHMAD KHAN‑‑‑Petitioner

Versus

GOVERNMENT OF PUNJAB through Project Director, Department of Agriculture Punjab, Lahore and 4 others‑‑‑Respondents

Writ Petition No.6299 of 1989, heard on 19th January, 2001.

(a) Punjab Agricultural Produce Markets (General) Rules, 1979‑‑‑

‑‑‑‑Rr.67 & 72‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Re‑auction of plots‑‑‑Relaxation of rules‑‑‑Scope‑‑‑Petitioner was the highest bidder of disputed plots and had deposited the one‑fourth amount of the bid‑‑‑Authorities cancelled the plots from the name of the petitioner and on the recommendation of Member of Provincial Assembly, the same were allotted to the respondents‑‑‑Contention of the Authorities was that the allotment in the name of the respondents was made by relaxing R.67 of Punjab Agricultural Produce Markets (General) Rules, 1979‑‑‑Validity‑‑Upon forfeiture of a plot, under the provisions of R.67(f) of Punjab Agricultural Produce Markets (General) Rules, 1979, the same had to be reauctioned‑‑‑No provisions in the Punjab Agricultural Produce Markets Ordinance, 1979 or the Rules framed under the Ordinance existed for the allotment of plot or transfer of plot in any manner other than by auction‑‑‑By no process of conjecture or surmise, the Rule could be stretched to doling out of public property to individuals by the Government‑‑‑Where one plot was sold for half the price offered and paid by the petitioner while the other was sold at the same price, no benefit whatsoever had been obtained for the public exchequer rather loss was caused to it‑‑‑In the present case, not only an .individual i.e. the petitioner had been caused wrongful harm but also the public property had been dealt with in a reckless manner‑‑Even if no Rules were there, the acts of the Authorities were not to be exempted from the judicial scrutiny‑‑‑Material available on record, fully corroborated the case set up by the petitioner in the Constitutional petition far as the factual aspects of the case were concerned‑‑‑Act of the Authorities whereby the .plots were cancelled was illegal and void‑‑‑High Court directed the respondents to restore the possession to the petitioner.

Pervaiz Oliver and others v. St. Gabrial School through Principal and others PLD 1999 SC 26; Controller of Patents and Designs, Karachi and others v. Muhammad Quadir Hussain 1995 SCMR 529; Sherin and. 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; East Suffolk Rivers Catchment Board v. Kent and another 1941 AC 74; Shaukat Ali v. Secretary, Industries and Mineral Development, Government of Punjab, Lahore and 3 others 1995 MLD 123; Abdul Rauf v. Mst. Hafizan Mosan Atta and others 1986 SCMR 1893 and Pakistan v. Public‑at‑Large PLD 1987 SC 304 ref.

(b) Constitution of Pakistan (1973)

‑‑‑‑Art.4‑‑‑Protection to property‑‑‑Powers of High Court‑‑‑Scope‑‑Constitution enjoins a duty upon any person interfering with the property of any other person under the cover of law to explain and satisfy the Court with regard to its validity and propriety both procedural and substantive.

Government of Sindh through Secretary, Home Department, Karachi and another v. Abbas Ahmad, Advocate and 2 others 1994 SCMR 923 ref.

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Writ of certiorari, issuance of ‑‑‑Non availing of right of statutory appeal‑‑‑Effect‑‑‑Where order before High Court suffers from illegality on the face of the record or is in excess of jurisdiction or is without jurisdiction, a certiorari may be granted even though the right of statutory appeal had, not been availed.

Nagina Silk Mill, Lyallpur v. The Income Tax Officer and others PLD 1963 SC 322 and The Murree Brewery Co. Ltd. v. Pakistan through the Secretary and 2 others PLD 1972 SC 279 ref.

Syed Zainul Abideen for Petitioner.

Jehangir A. Wahla, A.A. ‑G. for Respondents Nos. 1 and 3.

Muhammad Siddique Ansari for Respondents Nos.2 and 5

Ch. Din Muhammad for Respondent No.4.

Dates of hearing: 19th December, 2000; 18th and 19th January, 2001

MLD 2001 LAHORE HIGH COURT LAHORE 1026 #

2001 M L D 1026

[Lahore]

Before Ch. Ijaz Ahmad, J

Miss SARAH MALIK through her next friend/Natural Guardian Bishop Alexender John Maiik‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Education, Islamabad and 2 others‑‑‑Respondents

Writ Petition No.6570 of 2000, heard on 24th October, 2000.

(a) Educational institution‑‑‑‑

‑‑‑‑ Eligibility of candidate to appear in examination‑‑‑Authorities though were directed by High Court to issue Roll Number to the candidate to appear in examination, but mere appearance in examination would not confer any right on candidate if she was found otherwise to be ineligible to appear in the examination. Shama Roshan's case 1988 CLC 1137 ref.

(b) Constitution of Pakistan (1973)‑‑‑‑

‑‑‑‑Arts. 22 & 25‑‑‑Right to education‑‑‑Citizen on basis of Art.22 of Constitution of Pakistan (1973) though had a fundamental right to education, but reasonable classification was permissible.

Nnni Krishnan's case AIR 1993 SC 2178; Zaheer‑ud‑Din's case 1993 SCMR 1718; Aziz Ullah Mambn's case PLD 1993 SC 341; I.A. Sherwani's case 1991 SCMR 1041; Ms. Mobeen Sheikh v. Federation of Pakistan 1998 SCMR 2701; Qamar‑ul‑Islam's case 1997 CLC 1192; Rafaqat Javaid's case 1995 CLC 155 and Rana Muhammad Irfan Yousaf's case 2000 CLC 2029 ref.

‑‑‑‑Candidate being Christian though was not to appear in the examination in Islamiyat, but as per rules framed by Competent Authority candidate was allowed to appear in Civics Ethics in lieu of Islamiyat‑‑‑Existence of rule of law would have paramount consideration.

Rafaqat Javaid's case 1995 CLC 1155 ref.

(d) Educational institution‑‑‑

‑‑‑‑ Change in Calendar of University‑‑‑Calendar of University could not be changed through verdict of Court.

Zaheer Aslam's case 1995 CLC 1152 ref.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Petitioner had failed to point out any violation committed by the respondent‑Authorities of their Rules and Regulations by which they were being governed‑‑‑Constitutional petition was not maintainable.

Ali Mir's case 1984 SCMR 433; Ghulam Mustafa's case 1998 CLC 432 and Ms. Mobeen Sh.'s case 1998 SCMR 2701 ref.

(f) Constitution of Pakistan (1973)‑‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Nature‑‑‑High Court had power only to interpret the law and not to take the role of the policy‑maker.

Zaheer Aslam's case 1995 CLC 1152; Rafaqat Javaid's case 1995 CLC 1155; Ali Mir's case 1984 SCMR 433; Ghulam Mustafa's case 1998 CLC 432; Ms. Mobeen Sheikh's case 1998 SCMR 2701; Zia‑ur‑Rehman's case PLD 1973 SC 49; Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473; Zamir Ahmad Khan's case PLD 1975 SC 667; Zamir Ahmad Khan's case 1978 SCMR 327 and Sherin Muneer's case PLD 1990 SC 295 ref.

(g) Act of Court‑‑‑‑

‑‑‑‑ Nobody should be prejudiced by the act of the Court.

Mian Irshad Ali's case PLD 1975 Lah. 7 ref.

M. Akram Raja for Petitioner.

Ch. Saeed Akhtar and Shahid Waheed for Respondents.

Date of hearing: 24th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 1044 #

2001 M L D 1044

[Lahore]

Before Ch. Ijaz Ahmad, J

BARKAT ALI ‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, FAISALABAD and 5 others‑‑‑‑Respondents

Writ Petition.No.4375 of 1987, heard on 27th October, 2000

(a) Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑S.144‑‑‑Restitution, principle of‑‑‑Pre‑conditions Principle of Restitution is applicable or attracted where the applicant fulfils the following conditions:‑‑

(a) The restitution must be in respect of the decree which had beer varied or reversed.

(b) The, party applying for restitution must be entitled to benefit under the reversing decree.

(c) The relief must be properly consequential on reversal and variation of decree and is not opposed to any other principle of equity. The aforesaid provision of law reveals that this embodies the principle that nobody shall be prejudiced by the act of the Court meaning thereby it is the paramount duty of the Court to take care that the act of Court does not injure the suiter and when such injury, is found by the Court on account of subsequent event o veriation or reversal of the decree then it is the foremost duty of that Court to undo the wrong and reinstate the wronged party to the position to which it is entitled.

(b) Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑5.144‑‑‑Restitution, doctrine of‑‑‑Object and scope‑‑‑Doctrine o restitution does not confer any new substantive right, which an aggrieved party does not possess under the general law‑‑‑Provisions of S.144 C.P.C. merely specify one of the methods by which the right can be enforced.

Birendra Nath Basu Thakur's case AIR 1940 Cal. 260; Rohan Raman Dhwaja Pershad Singh's case AIR 1943 PC 189 and Safaraddi's case 16 IC 966 ref.

‑‑‑‑S.144‑‑‑Restitution‑‑‑Purpose‑‑‑Redressing the wrong done to a party‑Basic object underlying S.144, C.P.C. is to redress the wrong and reinstate the wronged party to the original position to which the party is entitled under varied decree of the. Court.

Alfred Sahir's case AIR 1944 Lah. 165 ref.

(d) Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑S.144‑‑‑Restitution‑‑‑Jurisdiction, exercise of‑‑‑Such jurisdiction is inherent in every Court and should be exercised whenever the justice demands.

Abdur Razzaq's case PLI) 1997 Lah.l and Messrs Rafique Industries' case 1984 SCMR 807 ref.

(e) Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑Ss. 47 & 144(2)‑‑‑Restitution‑‑‑Subsequent suit‑‑‑Treating such suit as application‑‑‑Validity‑‑‑Suit is barred under S.47, C.P.C., but S.144(2), C.P.C. enables Executing Court to treat such a suit as an application.

(f) Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑S.144‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Restitution, doctrine of‑‑‑Decree was passed by Civil Court in suit for specific performance and appeal against the decree was dismissed by the Lower Appellate Court‑‑‑Before the decision of second appeal by High Court, the sale‑deed was compulsorily registered‑‑‑Decree of the Trial Court was reversed in second appeal‑‑‑Trial Court on the application under S.144, C. P. C. filed by the petitioner set aside the decree whereas the Lower Appellate Court reversed the findings on the ground that the petitioner should have filed a suit under S.9, C.P.C.‑‑‑Validity‑‑‑Order of Trial Court was in accordance with the law as against that of the Appellate Court‑‑Judgment of the Appellate Court was set aside and that of the Trial Court was upheld in circumstances.

Mst. Zubaida Begum's case 1979 C.L.C 109; Alfred Sahir's case AIR 1944 Lah. 165; Beni Parshad's case AIR 1934 Lah. 322; Ghanaya Lal's case AIR 1928 Lah. 7; Biruji Hazariji's case AIR 1944 Sindh 233; Abdur Razzaq's case PLD 1997 Lah. 1; Abdul Bari's case 1995 SCMR 851; Abdul Haq's case PLD 1960 Dacca 452; Hamejaddi Howladar and another v. Maminaddi Shaikh and another PLD 1959 Dacca 304; Binayak Swain's case AIR 1966 SC 948 and Kavita Trehan's case (1994) 5 SCC 380 ref.

S.M. Masud for Appellant.

Jehanzeb Wahla for Respondents.

Date of hearing: 27th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 1054 #

2001 M L D 1054

[Lahore]

Before Mian Saqib Nisar, J

AFTAB AHMAD KHAN and 3 others‑‑‑Appellants

versus

GHAFOOR AHMAD and 7 others‑‑‑Respondents

Regular Second Appeals Nos. 157 and 158 of 1988, heard on 26th January, 2001.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4, 15 &‑21‑‑‑Suit for pre‑emption ‑‑‑Waiver of right of pre‑emption‑‑Suit filed by minors claiming superior right of pre‑emption on the basis of being collateral of vendor, was resisted by the vendors, contending that father of the minors was present at the time of sale transaction‑‑‑Defendants had further claimed that plaintiffs had waived their right of pre‑emption through their father and were estopped by their own conduct to challenge the sale in favour of the defendants‑‑‑Validity‑‑‑Mere presence of pre‑emptor at the time of sale transaction by itself would not be a suggestion of his participation in the transaction to denude him of his right on the ground of waiver of his legal right to pre‑empt the sale‑‑‑Waiver was an intentional relinquishment of known right and unless there was cogent evidence reflecting the person's conduct, clearly of the abandonment of his right he could not be said to have deliberately foregone his right‑‑‑In order to nonsuit a pre‑emptor on the ground of waiver, strong evidence must be led by the defendant/vendee to establish the waiver‑‑‑In absence of such evidence, vendees had failed to prove that father of minors had waived the right of preemption on behalf of the plaintiffs‑‑‑Right of the minors to pre‑empt the suit property, could not be given up by their father, even on account of his participation in the registration of sale‑deed and giving an undertaking to the vendee not to institute a suit for pre‑emption ‑‑‑Compromise and withdrawal of some previous suit for pre‑emption by plaintiffs would have no reflections on the litigation‑‑‑Father of the minors at the most could waive to pre‑empt the sale to the extent of his own rights and not qua the plaintiffs, who were the minors and father‑in‑law had no authority to waive their rights especially when case of defendants was not that the preemption suit was benami and for the benefit of father of the minors.

Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 403; Jam Pari v. Muhammad Abdullah 1992 SCMR 786; Noor Muhammad and 3 others v. Jahangir Ali and 8 others PLD 1987 Lah. 473 and Sham Singh v. Suhel Singh 143 PLR 1913 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 100‑‑‑Second appeal‑-‑Plea not raised earlier before Trial Court at the time of recording of statements of witnesses and which even not found favour with Appellate Court below, could not be allowed to be raised in second appeal.

Mirza Naseer Ahmad for Appellants.

Sheikh Aasher Waheed for Respondents. .

Date of hearing: 26th January, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1062 #

2001 M L D 1062

[Lahore]

Before Syed Jamshed Ali, J

MUSHTAQ AHMED ‑‑‑Petitioner

versus

NASRULLAH KHAN‑‑‑Respondent

Civil Revision No. 605 of 1990, heard on 1st February, 2001.

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 21 & 25‑‑‑Civil Procedure Code (V of 1908), O.XLI, R.33‑‑‑Suit for pre‑emption‑‑‑Suspension of order for deposit of pre‑emption money‑‑‑Suit was decreed by the Trial Court with direction to deposit sale price as determined by the Trial Court up to specified date‑‑‑Both the parties filed appeals against judgment and decree of the Trial Court‑‑‑Plaintiff sought interim relief in appeal in terms that till the decision of his appeal direction of the Trial Court for deposit of pre‑emption money should be suspended which was accepted‑‑‑Appellate Court finally dismissed the appeal of the plaintiff holding that he did not deposit pre‑emption mount as directed by the Trial Court and that interim order would not relieve him from complying Trial Court and appeal of defendant was disposed of by Appellate Court below as having become infructuous‑‑‑Validity‑‑Grievance of the plaintiff in appeal was ‑ that the sale consideration was wrongly determined by the Trial Court which was not adjudicated upon‑‑Interim order passed by the Appellate Court below was to be interpreted in the light of the prayer made rid the application for interim relief and Appellate Court should have determined the appeal on merits‑‑‑If it was found that the sale consideration was wrongly determined and decree of the Trial Court was varied, Appellate Court was bound to grant time to the plaintiff and if decree was maintained, even then the Appellate Court should have granted time to the plaintiff in view of the interim order‑‑‑Appeals of the parties having not been determined in accordance with law, judgment and decree passed by Appellate Court in both the appeals were set aside and case was remanded to be decided afresh in accordance with law.

Dattatraya v. Sheikh Mehbood, Sheikh Ali and another AIR 197( SC 750 ref.

Farooq Amjad Meer for Petitioner.

Irshad Ahmad Virk for Respondent.

Date of hearing: 1st February, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1071 #

2001 M L D 1071

[Lahore]

Before Tassaduq Hussain Jilani, J

Haji MUHAMMAD AMIR‑Appellant

versus

MUHAMMAD IQBAL and 2 others‑‑‑Respondents

Criminal Appeal No. 765 of 1996, heard on 22nd March, 2001.

Penal Code (XLV of 1860)‑‑‑

‑-‑‑Ss. 406/408/420/468 & 471‑‑‑Criminal Procedure Code (V of 1898), Ss.173, 222, 234, 249‑A & 561‑A‑‑‑Discharge of accused ‑‑‑Correctness‑‑Conditions‑‑‑Accused after submission of challan sought quashment of proceedings by filing application under S.561‑A, Cr.P.C. but that application was dismissed‑‑‑Despite dismissal order by the High Court, Trial Court discharged the accused on the grounds that dispute being civil in nature arid criminal transactions being spread over more than one year the joint trial was bad in law‑‑‑Validity‑‑‑Accused could not have been discharged after the submission of final report under S.173, Cr.P.C. and after taking cognizance by the Trial Court‑‑‑Only provision which could be made use of, was 5.249‑A, Cr.P.C. when there was no probability of conviction‑‑‑Order discharging accused after having issued process and having taken cognizance of the case, was set aside being not sustainable in law.

Malik Murid Sadiq v. The State 1968 P.Cr:LJ 657; Muhammad Aslam and another v. Additional Secretary to Government of N.‑W.F.P. PLD 1987 SC 103; Nadir Shah v. The State 1980 SCMR 402 and Wazir v. The State PLD 1962 (W.P.) Lah. 405 ref.

M. Akram Khan Awan for Appellant.

Malik Saeed Hassan for Respondents.

Syed Zahid Hussain Bokhari: Amicus curiae.

Date of hearing: 22nd March, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1076 #

2001 M L D 1076

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman and Bashir A. Mujahid, JJ

MUHAMMAD ASLAM alias BILLA‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 239 and Murder Reference No. 274 of 1998, decided on 6th November, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Sentence, reduction in‑‑‑Matter was promptly reported to the police which fact had eliminated the possibility of concoction and fabrication‑‑‑Case was that of daylight murder committed by a single accused and substitution in such type of cases was a rare phenomenon‑‑‑Both the eye‑witnesses were subjected to searching crossexamination, but the defence had failed to establish any enmity of those witnesses qua the accused for his false implication in the case‑‑‑Presence of said witnesses at the spot was very much meterial‑‑‑Ocular account stood corroborated by the medical evidence‑‑‑Recovery of blood‑stained weapon of offence at the instance of the accused and the report of Chemical Examiner in that regard had rendered ample corroboration to the prosecution case‑‑Ocular account narrated by prosecution witnesses could safely be relied upon to uphold the conviction of the accused, but since the prosecution had failed to prove the motive part of the case, valid ground for reduction in the sentence awarded by the Trial Court had been made out‑‑‑Maintaining conviction of the accused, death sentence awarded to the accused by the Trial Court was reduced to the imprisonment for life.

MLD 2001 LAHORE HIGH COURT LAHORE 1081 #

2001 M L D 1081

[Lahore]

Before Asif Saeed Khan Khosa, J

GHAFFAR AHMAD and 2 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2464‑B of 2000, decided on 2nd November, 2000.

(a) Criminal Procedure Code (V of 1898)‑‑-

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.298‑C‑‑‑Bail, grant of‑‑Complainant in F.I.R. had not fixed particular date or time of occurrence and F.I.R. as well as the affidavits appended therewith contained generalized' allegations without specifics ‑‑‑F.I.R. was an outcome of mala fides on the part of the complainant on account of background of bitterness and ill‑will between the parties and civil litigation was pending between them‑‑‑Offence alleged against the accused under 5.298‑C, P.P.C. covered a maximum punishment of three years' imprisonment which did not attract prohibitory clause contained in S.497(1), Cr.P.C.‑‑‑Grant of bail, in circumstances, was a rule and its refusal merely an exception ‑‑‑Challan in the case had already been submitted after completion of investigation‑‑‑Continued custody of the accused in jail, was not likely to serve any beneficial purpose‑‑‑Bail was granted, in circumstances.

Nasir Ahmad v. The State 1993 SCMR 153; Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Khawar Fareed v. The State 2000

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Bail, grant of‑‑‑Concession of bail ought not be withheld by way of premature punishment.

Malik Sharif Ahmad for Petitioners.

Malik Abdul Hameed Khokhar for the State.

Date of hearing: 2nd November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 1088 #

2001 M L D 1088

[Lahore]

Before Asif Saeed Khan Khesa, J

ABDUL GHAFOOR alias GHAFOORA‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 21 of 1990, heard on 25th. October, 2000

Prohibition (Enforcement of Hadd) Order (4 of 1979)‑‑‑

‑‑‑‑Art. 4‑‑‑Appreciation of evidence‑‑‑Sentence, reduction in‑‑‑Evidence produced by the prosecution against the accused having rightly been believed by the Trial Court, no exception could be taken to the finding of guilt recorded against the accused‑‑‑Accused had been convicted by the Trial Court two years after occurrence and during the last twelve years the accused had been in and out of jail a number of times and he had also faced the agony and anguish of the trial and the appeal‑‑‑Accused had already spent about fourteen months in jail before suspension of his sentence of imprisonment by High Court‑‑‑High Court upholding conviction of the accused, reduced sentence passed against him to that already undergone by him.

Nemo for Appellant.

Malik Abdul Hameed Khokhar for the State.

2001 M L D 1123

[Lahore] Before Raja Muhammad Sabir, J

ALLAH DITTA‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1330‑B of 2000, decided on 17th August, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail, grant of‑‑‑Accused though was not named in the F.I.R. and no direct evidence was available against the accused, yet the complainant or prosecution witnesses were not inimical against the accused‑‑‑Worth of evidence of prosecution witnesses who saw the accused riding on the cycle of the deceased immediately after the occurrence would be examined by the Trial Court‑‑‑Cycle of the deceased was recovered from the accused and the gun allegedly used in the occurrence was recovered from the house of the accused on his pointation‑‑‑Accused also stood implicated in another criminal case‑‑‑Trial had already commenced and the case was fixed for prosecution evidence‑‑‑Deep appreciation of circumstantial .evidence was not possible at bail stage‑‑‑Trial having commenced, the accused could not be admitted to bail.

Malik Muhammad Shabbir Langrial for Petitioner.

Arshad Ali Chohan for the Complainant.

Malik Abdul Hameed Khokhar for the State

Date of hearing: 17th August, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 1125 #

2001 M L D 1125

[Lahore]

Before Tassaduq Hussain Jillani, J

ALI AHMAD‑‑‑Petitioner

versus

THE STATE and another‑‑‑Respondents

Criminal Revision No. 29 of 2000, decided and 21st November, 2000.

(a) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 221 R 222‑‑‑Criminal trial‑‑‑Charge, framing and amending of‑‑Charge had to be framed on the basis of the material placed before the Trial Court and while doing so the Court was not bound by the inquiry report submitted under 5.202, Cr.P.C. or in a police challan case by the report submitted under 5.173, .Cr.P.C.‑‑‑Charge could be amended at any stage.

1998 PCr.LJ 1860 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 30‑‑‑Criminal trial‑‑‑Defence evidence‑‑‑Consideration of‑‑‑Defence evidence could only be considered after the prosecution evidence ‑ was concluded.

Tariq Zulfiqar Ahmad Chaudhry for Petitioner.

Syed Murtaza Ali Zaidi and Mian Fazal Rauf Joyia for Respondents.

Date of hearing: 21st November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 1127 #

2001 M L D 1127

[Lahore]

Before Khawaja Muhammad Sharif, J

EJAZ KHAN‑‑‑Petitioner

versus

THE STATE‑-‑Respondent

Criminal Miscellaneous No.5014/B of 2000, decided on 13th September, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss.302 & 322‑‑‑Bail before arrest, grant of‑‑‑accused was named in the F.I.R.‑‑‑Post‑mortem report had corroborated the ocular account‑‑‑No previous background of enmity was found between the parties‑‑‑Considerations for the grant of bail before arrest and after arrest were totally' different‑‑‑Offence against the accused was not covered by S.322, P.P.C. as claimed by the accused‑‑‑Accused who was. incharge of Police Station, alongwith his fellow police officials forcibly took the deceased before his death in custody and eye‑witnesses had seen the police officials committing torture on the person of the deceased who died due to the said torture‑‑‑Deceased even though was a person of bad character and was involved in criminal cases, the police had been given no licence to kill a person on said ground‑‑‑Accused could not be granted bail.

MLD 2001 LAHORE HIGH COURT LAHORE 1135 #

2001 M L D 1135

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman, J

MUHAMMAD RAMZAN-‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Revision No.31 of 1995, heard on 22nd November; 2000

Penal Code (XLV of 1860)‑‑‑

.‑‑‑‑Ss. 337‑A(ii) & 337‑F(v)‑‑‑Criminal Procedure Code (V of 1898), S.439‑‑‑Appreciation of evidence‑‑‑Reduction in sentence ‑‑‑Revisional jurisdiction, exercise of‑‑‑All the eye‑witnesses had supported the prosecution case verbatim‑‑‑Accused during cross‑examination had failed to shatter credibility of witnesses and had also failed to bring on record any circumstances showing enmity of witnesses qua him for his false implication in the case‑‑‑Presence of said witnesses at the spot being residents of the area and especially one being injured, could not be doubted‑‑‑Ocular account also stood corroborated by the medical evidence‑‑‑Prosecution, in circumstances, had proved its case against the accused to the hilt‑‑‑In absence of any illegality in the judgments of Courts below, same could not be interfered with in revisional jurisdiction of High Court‑‑‑Occurrence had taken place in 1992 and the accused was facing the agony of case for the last eight year‑Not proper at belated stage to send the accused behind the bars to serve out his remaining period of imprisonment‑‑‑High Court taking lenient view upholding the conviction of the accused reduced his sentence to the peril already undergone by him.

Syed Murtaza Ali Zaidi for Petitioner.

Shaukat Ali Kharal for the State.

Date of hearing: 22nd November, 2000

MLD 2001 LAHORE HIGH COURT LAHORE 1140 #

2001 M L D 1140

[Lahore]

Before Khawaja Muhammad Sharif, J

ZAHEER CHAUDHRY and another‑‑‑Petitioners

versus

Dr. RIZWAN FAZAL and another‑‑‑Respondents

Criminal Miscellaneous No.5396/B of 2000, decided on 28th September, 2000.

(a) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Passports Act (XX of 1974), Ss.5 & 6‑‑‑Pre‑arrest bail, confirmation of‑‑‑Accused earlier were granted bail before arrest, but same was not confirmed and they were taken into custody‑‑‑After arrest accused applied for bail, which was allowed‑‑‑Complainant filing application for cancellation‑‑‑Justification‑‑‑Offence alleged against the accused did not fall within the prohibitory clause of S.497(1), Cr.P.C. and maximum sentence provided in the case, was three years‑‑‑No useful purpose could be served by sending the accused behind the bars‑‑‑Interim bail granted to the accused was confirmed.

(b) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑‑S. 497(1)(5)‑‑‑Bail, grant and cancellation of‑‑‑Considerations for‑‑Considerations for granting bail and for cancellation of same were totally different.

Khalid Bashir v. The State PLD 1995 SC 34 ref.

‑‑‑‑S. 497‑‑‑Bail, grant of‑‑‑Principle‑‑‑Where offence did not fall within the prohibitory clause of S.497(1), Cr.P.C. the accused would be entitled to grant of bail as a matter of right and in such‑like cases grant of bail was a rule and refusal was an exception.

Rashdeen Nawaz for Petitioners.

Kamran Babar for Respondents.

Date of hearing: 28th September, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 1145 #

2001 M L D 1145

[Lahore]

Before Riaz Kayani, J

KHIZAR HAYAT alias KHIZRU‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1114 of 1999, decided on 21st March, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 242 & 243‑‑‑Penal Code (XLV of 1860), Ss.392/411‑‑‑Denial of charge by the accused‑‑‑Subsequent admission of guilt by the accused‑‑Discretion of Court‑‑‑Accused Was charged with the offence and the accused pleaded not guilty and claimed the trial‑‑‑Accused before recording of prosecution evidence, volunteered that he was prepared to admit his guilt‑‑Once again the Court asked question to the accused whether he committed the offence, and the accused admitted his guilt‑‑‑Court on the basis of said admission, recorded conviction and sentence of the accused‑‑‑Validity‑‑‑Once the charge was framed and the accused pleaded not guilty thereafter the trig: would commence in its normal manner and admission of guilt recorded subsequent to plea of not guilty‑at the time of framing of the charge would leave no discretion with the Court, but to record evidence‑‑‑Procedure adopted by the Trial Court being not in accordance with law, conviction and sentence awarded to accused were set aside.

Bijan Mubashar v. The State PLD 1986 Kar. 473 and Shera v. The State 1991 PCr.LJ 365 ref.

Malik M. Imtiaz Mahal for Appellant.

Mian Asghar Ali for the State.

Date of hearing: 21st March, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 1152 #

2001 M L D 1152

[Lahore]

Before Muhammad Akhtar Shabbir, J

ABDULLAH and others‑‑‑Petitioners

versus

DEPUTY SECRETARY, BOARD OF REVENUE, LAHORE and others‑‑‑Respondents.

Writ Petition No. 29‑R of 1988, heard on 11th October, 2000.

Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑Ss. 10 & 11‑‑‑Mukhbari application‑ ‑‑Resumption of land‑‑‑Land owned by a non‑Muslim was purchased by Muslims vide Mutation of Sale in 1949‑‑‑Land was resumed on Mukhbari application‑‑‑Informer/applicant claimed allotment of land in his name as informer, but his claim was rejected by Authorities holding that he was not entitled to allotment of land as an informer‑‑‑Validity‑‑‑Land in dispute was duly purchased by vendees from original non‑Muslim owner thereof vide mutation and same was not allotted to them under Displaced Persons (Land Settlement) Act, 1958 and said land was also not declared as evacuee by the Custodian at the time when mutation in favour of vendees was made‑‑‑Applicant/informer, in circumstances, was rightly found to be not entitled to allotment of resumed land.

Syed Murtaza Ali Zaidi for Petitioners.

Syed Mohtishamul Haq Pirzada for Respondents.

Date of hearing: 11th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 1157 #

2001 M L D 1157

[Lahore]

Before Muhammad Akhtar Shabbir and Naseem Sikandar. JJ

M. SULEMAN‑‑‑Appellant

versus

HABIB BANK LIMITED and 4 others‑‑‑Respondents

First Appeal from Order No. 38 of 2000.

Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance (XXV of 1997)‑‑‑

‑‑‑‑Ss. 9, 10 & 16‑‑‑Suit for recovery of amount‑‑‑Appeal against judgment of Banking Court‑‑‑Banking Court decreed the suit ordering the borrower to deposit specified amount in lump sum and pay the remaining amount in twelve monthly instalments‑‑‑Borrower filed application before Banking Court praying that remaining amount be recovered in twenty‑four equal monthly instalments instead of twelve which was dismissed by the Banking Court and the borrower had filed appeal against said order‑‑‑Borrower, who had admitted in the Court to make payment in twelve equal monthly instalments, had failed to refer any law empowering Court to make the instalments of the decretal amount‑‑‑No case, in circumstances, was pending before Banking Court and said Court being functus officio, had rightly dismissed the application of the borrower‑‑‑In absence of any illegality in the order of Banking Court same could not be interfered with in appeal.

Tariq Muhammad Iqbal for Appellant.

Date of hearing 30th March, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 1164 #

2001 M L D 1164

[Lahore]

Beefore Malik Muhammad Qayyum and Raja Muhammad Sabir, JJ

Mst. GHULAM FATIMA ‑‑‑Petitioner

versus

MEMBER, FEDERAL LAND COMMISSION, ISLAMABAD and 5 others‑‑‑Respondents

Writ Petition No. 3032 of 1979, decided on 16th October, 2000.

Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑Ss. 122 & 123‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Gift, validity of‑‑‑Petitioner had claimed that land in dispute had been gifted to her by her brother, but Authorities did not accept the claim of petitioner on the ground that transaction of gift had not been given effect to in the Revenue Record‑‑‑Petitioner offered to substantiate the gift deed through oral evidence of persons who had witnessed the gift deed, but request of petitioner was declined by the Authorities ‑‑‑Donee before being deprived of his/her valuable property, must be given an opportunity to lead evidence in order to prove the factum of gift‑‑‑Petitioner had been condemned unheard as she had not been permitted to adduce evidence in proof of her claim‑‑‑Mere fact that the transaction of gift was not reported to the Revenue Officer, was not conclusive of the controversy inasmuch as the validity of a gift was not dependent upon the same‑‑‑Judgments of Authorities below had been declared illegal and case was remanded for decision afresh after allowing the petitioner an opportunity to produce evidence in proof of his claim.

Mst. Aqeedat Jabeen v. Muharnmad Aslam Khan Sangi and others 1989 SCMR 1024 ref.

S.M. Zafar, Bashir Ahmad Ch. and Haider Zaman Qureshi for Petitioner.

Muhammad Hanif Niazi for Respondents.

Date of hearing: 3rd October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 1181 #

2001 M L D 1181

[Lahore]

Before Syed Zahid Hussain, J

TARIQ COOKING OIL‑‑‑Plaintiff

versus

UNITED BANK LIMITED and other‑‑‑Defendants

C.O.S. No.22 of 2000, decided on 12th July, 2000.

Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 73‑‑‑Damages‑‑‑Suit for damages‑‑‑Leave to appear and defend the suit‑‑‑Grant of‑‑‑Suit for the grant of damages would stand slightly or different footings than an ordinary suit for recovery of amount based or negotiable instruments and other material‑‑‑Plaintiff in such a suit was to prove that damages were caused and occasioned on account of acts and omissions of the defendant‑‑‑Defendant was also entitled to controvert the adverse allegations and to defend himself‑‑‑Initial burden, in such a suit, would remain on the plaintiff to prove his case for the grant of damages and also its quantum‑‑‑Serious and bona fide dispute having arisen in the matter for determination of the respective contentions of the parties, leave to appear and defend the suit was granted to the defendants.

Messrs Qureshi Salt & Spices Industries, Khushab and another v. Muslim Commercial Bank Limited, Karachi through President and 3 others 1999 SCMR 2353 ref.

Muhammad Aslam Nagi for Plaintiff.

Rashdin Nawaz for Defendants Nos. 1 to 6.

Muhammad Asif Piracha for Defendant No.7.

Date of hearing: 12th July, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 1186 #

2001 M L D 1186

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMAMD BAKHSH‑‑‑Petitioner

versus

ADDITIONAL DISTRICT JUDGE, RAHIMYAR KHAN and 7 others‑‑‑Respondents

Writ Petition No. 5217 of 2000, decided on 8th November, 2000.

(a) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Suit for specific performance of agreement‑‑‑Plaintiff after producing affirmative evidence, closed his evidence, finally and after production of evidence by defendant, the matter was adjourned for evidence of plaintiff in rebuttal‑‑‑Plaintiff, instead of producing evidence in rebuttal, filed an application for getting the thumb‑impression on agreement compared from Finger Print Expert‑‑‑Said application was concurrently dismissed by Trial Court as well as Appellate Court below in revision‑‑‑Plaintiff filed Constitutional petition agaibst concurrent order of Courts below ‑‑‑Validity‑‑Courts below dismissed application filed by plaintiff considering that it was filed by the plaintiff with ulterior motive just to prolong the proceedings already pending since long‑‑‑Reasonings given by Courts below were based on factual position‑‑‑In absence of any jurisdictional defect in orders of Courts below, Constitutional petition against said orders being misconceived, was dismissed.

Zarab Ali Shah v. Yousaf Ali Shah and 9 others 1992 SCMR 1778; Muhammad Sharif v. Town Committee, Shahkot and another 1983 CLC 1990 and PLD 1983 SC 693 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115 & O.XLIII, R.3‑‑‑Revision‑‑‑Issuance of notice prior to filing of revision‑‑‑Appellate Court below dismissed revision filed against judgment of Trial Court on ground that the revision suffered from legal defect as notice required under O,XLIII, R.3, C.P.C: had not been issued prior to filing of revision petition‑‑‑Validity‑‑‑Order of Appellate Court below was not based on correct appreciation of legal proposition because the provisions of O.XLIII, R.3, C.P.C. which were applicable to appeal against interim order were not applicable to the revision filed under S.115, C.P.C.

Sardar Muhammad Hussain Khan for Petitioner.

Date of hearing: 8th November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 1191 #

2001 M L D 1191

[Lahore]

Before Khawaja Muhammad Sharif, J

AHMAD ALI ‑‑‑ Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Revision No‑108 of 2001, decided on 1st March, 2001.

Juvenile Justice System Ordinance (XXIH of 2000)‑‑‑

‑‑‑‑S.7‑‑‑Criminal Procedure Code (V of 1898), S.439‑‑‑Trial by Juvenile Court‑‑‑Scope‑‑‑Petitioner had prayed that the accused being minor at the time of occurrence, his trial should be conducted by Sessions Judge as a Juvenile Court‑‑‑High Court accepting petition directed Sessions Judge concerned to get the age of the accused determined from a Medical Board and if according to report of Medical Board the accused was found to be minor at the time of occurrence then his case should be tried by Sessions Judge as a Juvenile Court.

Shaukat Hussain Khan Baloch for Petitioner.

Ch. Muhammad Hanif Khatana, Add1.A.‑G. for the State.

Date of hearing: 1st March, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1198 #

2001 M L D 1198

[Lahore]

Before Sheikh Abdur Razzaq, J

QURESHAN BIBI and another‑‑‑Petitioners

versus

ADDITIONAL DISTRICT JUDGE, BAHAWALNAGAR and 2 others‑‑‑Respondents

Writ Petition No. 5076 of 2000/BWP, decided on 7th November, 2000.

West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Suit for maintenance‑‑‑Both Courts below had fixed the maintenance allowance on the basis of evidence produced on record‑‑‑Contention that the suit should have been disposed of on basis of offer made by defendant ws repelled as the said ground was not agitated before the Appellate Court‑‑‑Findings of facts of Courts below based on evidence on record could not be interfered with by High Court in exercise of its Constitutional jurisdiction.

S M. Aslam Khan for Petitioners.

Date of hearing: 7th November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 1203 #

2001 M L D 1203

[Lahore]

Before Khawaja Muhammad Sharif, J

ABDUL REHMAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 121‑J of 1999, heard on 16th January, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 295‑B, 295‑C & 298‑A‑‑‑Appreciation of evidence‑‑‑Torn pieces of the Holy Qur'an were recovered from the house of the accused‑‑‑Witnesses deposed that the accused used to pass indecent remarks against the Holy Prophet, Khulfa‑e‑Rashidin, and Ahle‑Bait‑‑‑All the prosecution witnesses who had fully supported the case against the accused had neither any relationship with each other nor were inimical or biased towards the accused‑‑‑No reason was found in circumstances for them to depose against the accused on oath‑‑‑Prosecution having proved its case against the accused beyond any shadow of doubt, he was rightly convicted and sentenced by the Trial Court.

Abdul Rauf Farooqi for Appellant (at State expenses).

Mumtaz Ahmad Niazi for the State.

2001 M L D 1277

[Lahore]

Before Nazir Ahmad Siddiqui, J

MUHAMMAD AKRAM ‑‑‑ Appellant

versus

MUHAMMAD RAUF‑‑‑Respondent

Regular First Appeal No.53 of 1999/BWP decided on 9th December, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXXVII, Rr. 1 & 2‑‑‑Suit for recovery of amount‑‑‑Point of non-maintainability of the suit on the premises, that document on basis of which suit was filed was a "bond" and not a "promissory note" and thus no suit on basis thereof could be filed, was not taken by the borrower earlier either in the application for leave to defend the suit or in the written statement or during the arguments before the Trial Court and also not in the grounds of appeal‑‑‑Documents in question had been proved to be a promissory note and suit was maintainable on the basis thereof and the plaintiff had successfully proved that he had given loan to the defendant who had executed a promissory note and receipt thereof‑‑‑Trial Court, after scanning entire evidence on record, decreed the suit‑‑Validity‑‑‑In absence of any misreading/non‑reading of any material piece of evidence, judgment and decree passed by Trial Court could not be interfered with.

Muhammad Ameen v. Ghulam Muhammad PLD 1993 Lah. 569; Bheru Lal v. Ghisulal AIR 1957 Raj. 387; Nazim v. Habib Bank Limited, Karachi and another 1980 CLC 1185; AIR 1937 Raj. 387 and Pudai Sheikh v. Mst. Bilasi AIR 1939.Oudh 107 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 132‑‑‑Facts deposed in examination‑in‑chief‑‑‑Facts deposed in examination‑in‑chief, if not cross‑examined, would be deemed to be admitted correct by the other party.

Zafar Ali Hashmi for Appellant.

Haji Khair Muhammad Khan Bhadera for Respondent

Date of hearing: 7th December, 1999.

MLD 2001 LAHORE HIGH COURT LAHORE 1285 #

2001 M L D 1285

[Lahore]

Before Syed Najam‑ul‑Hassan Kazmi, J

SHER MUHAMMAD and others‑‑‑Appellants

versus

GHULAM RASUL and others‑‑‑Respondents

First Appeal from Order No. 36 of 1995/BWP, decided on 15th June, 1999.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XLI, R. 23‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Remand of case by Appellate Court‑‑‑If parties had led evidence and the case had been decided on merits, the Appellate Court should have re‑examined the evidence and decided the same in accordance with law‑‑‑If evidence was not sufficient or x an issue was omitted, the Appellate Court could reframe the issue, decide it on existing evidence or by receiving further evidence and in any case, suit could not be remanded simply because one of the issues was not decided or some further evidence was required‑‑‑Without reversing the judgment on merits, remand was not permissible in law‑‑‑Frequent remands were deprecated by High Court as the same resulted in wastage of time and would create frustration in the litigants‑‑‑Sufficient evidence being on record and issues having properly been framed in the case, Appellate Court, at the best, could have itself recorded further evidence and decided the appeal on merits instead of remanding the case and opening another round of litigation‑‑‑Course adopted by the Appellate Court being contrary to law, order remanding the case to the Trial Court, was set aside by High Court.

Malik Raheem Bakhsh Awan v. Ejaz Mehmood an another PLD 1990 Lah. 37 ref.

Sayed Muhammad Anwar Shah for Petitioners.

Qiam Din (Respondent) in person.

Date of hearing: 15th June, 1999.

MLD 2001 LAHORE HIGH COURT LAHORE 1287 #

2001 M L D 1287

[Lahore]

Before Muhammad Akhtar Shabbir, J

WAPDA ‑‑‑ Petitioner

versus

AMIN ICE FACTORY‑‑‑Respondent

Civil Revision No.1309 of 1999, decided on 16th September, 1999.

(a) Electricity Act (IX of 1910)‑‑‑

‑‑‑‑Ss. 24 & 54‑C‑‑‑Disconnection of electric supply‑‑‑If any consumer had neglected to pay any charge for energy or any sum other than charge for energy assessed against him by a licensee/Authority, in respect of the supply of energy to his premises, the licensee/Authority, after giving seven days' notice, in writing to such consumer, could disconnect electric supply, but without the issuance of the notice to the consumer, no such action could be taken‑‑‑Provisions of S.24, Electricity Act, 1910 had provided issuance of notice whereas provisions of S.54‑C of the said Act had contemplated that if the licensee/Authority had given the notice to the consumer, then, without the deposit of amount assessed against the consumer, the Court would not make an order prohibiting the licensee discontinuing supply of energy to the premises of the consumer‑‑‑If said notice was not issued, there was no bar in issuing the injunction without deposit of the assessed amount in the Court‑‑Notice to the consumer before disconnection of electric supply was a must which could not be allowed to be avoided.

(b) Electricity Act (IX of 1910)‑‑‑

‑‑‑‑Ss. 24 & 54‑C‑‑‑Disconnection of electricity supply‑‑‑Issuance of notice to the consumer‑‑‑Non‑issuance of notice‑‑‑Effect‑‑‑Where a licensee had not issued notice to the consumer to discontinue his supply of energy due to the non‑payment of amount assessed against him by the licensee/Authority, the Court had the jurisdiction to entertain and pass an order for restoration of supply of electricity without the order for deposit of amount.

WAPDA through its Chairman and 5 others v. Messrs Kashmir Steel Furnance alias T.I. Steel Furnance 1999 CLC 492; Muhammad Akbar v. WAPDA through Chairman, WAPDA House, Lahore and 3 others 1999 CLC 1198; Mst. Raeesa Bibi v. S.D.O., WAPDA PLD 1990 Pesh. 105; Haji Sher Muhammad v. WAPDA through its Chairman and 2 others PLD 1988 Lah. 511; Dr. Muhammad Rafiq Chaudhry v. WAPDA and others 1983 CLC 2397 and Firdous Oil Mills v. WAPDA an$ another 1983 CLC 3315 ref.

Khurshid Alam Ramay Mian for Petitioner.

Rashideen Nawaz for Respondent.

Date of hearing: 2nd September, 1999.

MLD 2001 LAHORE HIGH COURT LAHORE 1299 #

2001 M L D 1299

[Lahore]

Before Mian Allah Nawaz, J

MUHAMMAD SHARIF and others‑‑‑Petitioners

versus

TIPPU SULTAN and others‑‑‑Respondents

Civil Revision No. 2347 of 1996, decided on 7th June, 1999.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 54‑‑‑Suit for perpetual injunction‑‑‑Plaintiffs had alleged that defendants who were owners of a house in front of their house had set up two heavy electric presses and two electric motors for the purpose of manufacturing football which in running condition created such unbearable noise and vibration that it was impossible for them to live in their house; that they could not sleep and concentrate on studies and that vibrations were so violent that it shook the foundations of their house‑‑‑Suit was dismissed by the Trial Court but Appellate Court found that noise and vibration produced by the football manufacturing machines interfered with civic amenities of plaintiffs and that they were entitled to relief of perpetual injunction as prayed for by them‑‑‑Validity‑‑‑Evidence on record had proved that the working of the machines installed by defendants in their house for manufacturing football, had created so much noise that it interfered with the comfort and amenities of life in the house of plaintiffs‑‑‑Judgment and decree passed by Appellate Court being just, correct and in consonance with material on record and not suffering from any jurisdictional or legal error could not be interfered with by High Court.

Dhannalal and another v. Thakur Cittarsingh AIR 1959 Madh. Pra. 240; Dr. Tajuddin v Societe Internationale De‑Telecommunications Aeronautiques 1983 CLC 295; Mrs. Naz Shaukat Khan and 3 others v. Mrs. Yasmin R. Minhas and another 1992 CLC 2540; Colls v. Home and Colonial Stores Ltd. (1904) AC 179; Newman v. Real Estate Debenture Corporation Ltd. (1940) 1 All ER; Walter v. Selfe (1851) 4 De G and Sm. 315 and Vanderpant v. Mayfair Hotel Co. Ltd. (1930) 1 Ch. 138 ref.

Hakam Qureshi for Petitioners.

Ch. Muhammad Naeem for Respondents.

Date of hearing: 2nd June, 1999.

MLD 2001 LAHORE HIGH COURT LAHORE 1309 #

2001 M L D 1309

[Lahore]

Before Mian Muhammad Najum‑uz‑Zaman, J

Mst. GHULAM AISHA‑‑‑Petitioner

versus

MUHAMMAD BASHIR and another‑‑‑Respondents

Criminal Revision No.147 of 1993, decided on 27th November, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.439‑‑‑Penal Code (XLV of 1860), Ss. 354/427‑‑‑Reduction in sentence‑‑‑Appellate Court below reduced sentence awarded to the accused by the Trial Court to the extent of period already undergone by him and complainant had filed revision against the judgment of Appellate Court‑‑Appellate Court taking lenient view had reduced the sentence on the ground that the accused had faced the agony of case for three years and was kept in confinement before as well as after his conviction‑‑‑In absence of any illegality in the judgment of Appellate Court warranting interference by revision al jurisdiction of High Court, revision petition was dismissed.

Syed Murtaza Ali Zaidi for Petitioner.

Date of hearing: 27th November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 1311 #

2001 M L D 1311

[Lahore]

Before Tassaduq Hussain Jillani, J

MUHAMMAD ZAMAN and others‑‑‑Applicants

versus

CAPITAL DEVELOPMENT AUTHORITY and others‑‑‑Respondents

Execution Application No.7 alongwith Civil Miscellaneous No.1023‑C of 1997, decided on 19Th September, 1997.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑5. 42‑‑‑Civil Procedure Code (V of 1908), O.XXIII, R.3 & O.XXXIX, Rr. 2 & 3‑‑‑Constitution of Pakistan (1973), Art. 187 (2)‑‑‑Suit for declaration and temporary injunction‑‑‑Compromise between the parties‑‑Application for temporary injunction having been dismissed up to the High Court, petitioners approached the Supreme Court through civil petition which was disposed of in terms of the compromise arrived at between the parties‑‑‑Compromise arrived at between the parties before Supreme Court was not a compromise in perpetuity as no time framework was provided in the terms of the compromise‑‑‑Time though was not stipulated in the compromise, but as the suit was still pending, order of Supreme Court would remain in the field, till decision of the suit‑‑‑Any violation of compromise would be actionable and party could either move the Civil Court or move an application for contempt before the Supreme Court‑‑‑Questions raised in proceedings being a matter of public importance, Trial Court was directed to decide suit within stipulated period.

Raja Muhammad Ibrahim Satti for Applicants Nos.4 to 16.

Syed Zafar Ali Shah and A.G. Chaudhry for Respondent No.1.

2001 M L D 1339

[Lahore]

Before M. Javed Buttar and Tassaduq Hussain Jillani, JJ

MUHAMAMD ZAROOF and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 191 of 1991, 80 of 1992, Criminal Revision No.77 of 1992 and Murder Reference No.21 of 1992, decided on 4th September, 1996.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/307/34‑‑‑Appreciation of evidence‑‑‑Vicarious liability‑‑Sentence‑‑‑Ocular evidence was corroborated by the medical evidence and the injured eye‑witnesses‑‑‑Evidence of recovery had rightly been disbelieved by Trial Court for valid reasons, but the evidence of recovery being a circumstance to corroborate the ocular account, its infirmity would not be fatal for prosecution case when the direct evidence was overwhelming and the presence of eye‑witnesses and even the occurrence, though with different version was admitted by the accused‑‑‑Grievance of the accused against the complainant party on basis of same dispute between the parties had proved motive part of occurrence‑‑‑Accused had failed to prove plea of self defence‑‑‑Nothing was on record to show that the complainant party was armed with deadly weapons or that they did any overt act which could raise an honest and reasonable belief in the mind of the accused party that they were being attacked and that no option was available for them but to attack the complainant party in self‑defence‑‑‑Accused had neither produced any evidence in defence nor had given evidence on oath in disproof of the charge against him or in support of his plea of self‑defence‑‑‑Since it had not been shown that the injuries attributed to two accused persons were individually sufficient to cause death, the extreme penalty of death would not be warranted‑‑‑Other accused gave blows to prosecution witnesses, but he did not repeat the blows and injuries allegedly caused by him were not grievous‑‑‑Enhancement of sentence in his case, was not called for‑‑‑No evidence of pre-consert was available and occurrence had taken place all of a sudden‑‑‑Question of vicarious liability would not be attracted in circumstances‑‑‑Each of the accused had rightly been convicted for the individual role he had played and the findings of sentence arrived at by the Trial. Court, was not open to exception, in circumstances‑‑‑Benefit of S.382‑B, Cr.P.C. which was mandatory in law having not been extended to the accused by the Trial Court, direction was given that while computing period of sentence of the accused their period of detention during the trial would also be accounted for in terms of S.382‑B, Cr.P.C.

(b) Criminal trial‑‑‑

‑‑‑‑Motive‑‑‑Where there were two conflicting versions of the same incident and a plea of self‑defence was raised, motive would assume importance‑‑Motive on the one hand would explain the conduct of the persons involved in a transaction and on the other hand, it would help in a better appreciation of the evidence on record.

‑‑‑‑S. 97‑‑‑Right of self‑defence‑‑‑Pre‑condition for‑‑‑Exception of right of self‑defence of person or property was permitted under the law, but in order to avail the exception it was essential to show that the occurrence was not due to fault or act of the accused; that an immediate danger of life was in honest belief of the accused; that no reasonable course was available to the accused to escape or avoid the eventuality and that there was no intention to cause more harm than necessary for the purpose.

Imtiaz Ahmed v. The State PLD 1988 SC (AJ&K) 134 ref.

(d) Criminal trial‑‑‑

‑‑‑‑ Innocence of the accused‑‑‑Presumption‑‑‑Accused was presumed to be innocent in law and if after a regular trial, he was acquitted, he would earn a double presumption.

Sardar Muhammad Ishaq Khan for Appellant.

Muhammad Amin Jan for the Complainant.

Qazi Ahmad Naeem for the State.

Dates of hearing: 2nd, 3rd and 4th September, 1996.

MLD 2001 LAHORE HIGH COURT LAHORE 1431 #

2001 M L D 1431

[Lahore]

Before Tassaduq Hussain Jilani and Mian Muhammad Najam‑uz‑Zaman, JJ

RAZAQ alias ZAQI and 2 others‑‑‑Petitioners

versus

THE STATE‑‑Respondent

Criminal Miscellaneous No. 1 of 2001 in Criminal Appeal No.568 of 2000, decided on 1st February, 2001. .

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 426‑‑‑Penal Code (XLV of 1860), Ss. 302/148/149‑‑‑Suspension of sentence‑‑‑Role attributed to the accused was‑ that of ineffective firing‑‑Nothing was recovered from two of the accused persons and they were not directly connected with the motive part of the prosecution story‑‑‑Prima facie the conviction recorded, to the extent of said two accused, required re-examination‑‑‑Sentence was suspended, in circumstances.

Sahibzada Farooq Ali Khan for Petitioners.

Mahar Muhammad Saleem for the State.

Date of hearing: 1st February, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1435 #

2001 M L D 1435

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD ARIF RAZA ANSARI‑‑‑Petitioner

versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, BAHAWALPUR through Chair an and 10 others‑‑‑Respondents

Writ Petition No.3193 of 2000/BWP, decided on 31st July, 2000.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Educational institution‑‑‑Disqualification of candidate‑‑Constitutional petition, maintainability of‑‑‑Candidate, who was disqualified by Disciplinary Committee, had filed Constitutional petition alleging that Committee had decided case against him without providing him opportunity of hearing‑‑‑Petitioner/candidate had an alternate remedy to file the appeal against order of the Committee before Appellate Committee‑‑‑Constitutional petition filed by candidate, was not maintainable‑‑‑Copy of the Constitutional petition was sent to the Chairman of Board of Intermediate and Secondary Education with direction to constitute Appellate Committee to decide the appeal within specified period, in the interest of justice and fair-play.

Muhammad Ismail's case PLD 1996 SC 246 ref.

M. Shamsher Iqbal Chughtai for Petitioner.

Sheikh Raees Ahmad for Respondents.

Date of hearing: 31st July, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 1437 #

2001 M L D 1437

[Lahore]

Before Riaz Kiyani and Khawaja Muhammad Sharif, JJ

SHABRAT KHAN‑‑‑Appellant

versus

THE STATE----Respondent

Criminal Appeal No. 100‑J of 1998, decided on 27th May, 1999.

West Pakistan Arms Ordinance (XX of 1965)‑‑‑

‑‑‑‑S. 13‑B‑‑‑Appreciation of evidence ‑‑‑Klashnikov which according to the report of Fire‑Arms Expert was an automatic weapon was recovered from the accused at midnight alongwith 30 bullets and it being an expensive weapon could not be planted easily‑‑‑Police witnesses deposing against the accused had no animus to falsely implicate him in the case‑‑‑Prosecution witnesses had corroborated each other‑‑‑Accused had not led any evidence in his defence‑‑‑Conviction of accused was upheld in circumstances‑‑‑Accused, however, was behind the bars for the last 5‑1/2 years and was not a previous convict‑‑‑Sentence of 10 year's R.I. awarded to accused was reduced to the imprisonment already undergone by him which was sufficient to meet the ends of justice.

Ch. Mujahid Ahmad for Appellant.

Maqbool Ahmad Qureshi for the State.

Date of hearing: 27th May, 1999.

MLD 2001 LAHORE HIGH COURT LAHORE 1439 #

2001 M L D 1439

[Lahore]

Before Rashid Aziz Khan, C. J. and Tassaduq Hussain Jilani, J

MUHAMMAD JAFFAR TARAR and others‑‑‑Petitioners

versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Writ Petition No.26725 of 1997, decided on 20th November, 1997.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/307/148/149/109‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.12(3)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑‑Entrustment of the case to‑the Special Court‑‑‑Stage of the trial was the same as was when the case was pending before the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, where the entire prosecution evidence had almost been completed‑‑‑Transferee Court constituted under the Anti‑Terrorism Act, 1997, had to proceed with the case as mandated in S.12(3) of the said Act‑‑‑Contention that the Transferee Court should proceed with de novo trial and re‑examine all the prosecution witnesses would defeat the very purpose of the Anti‑Terrorism Act, 1997, which enjoined speedy trials of heinous offences and the matters connected therewith or incidental thereto‑‑Prosecution evidence already recorded by Trial Court was not shown to have, in any manner, prejudiced the accused and no exception, therefore, could be taken to the procedure adopted by the Transferee Court to proceed with the trial from the stage from where the evidence had been concluded by the Trial Court which had lastly recorded evidence‑‑‑Constitutional petition was dismissed accordingly.

Izhar‑ul‑Haq Sheikh for Petitioners.

Ms. Yasmeen Sehgal, Asstt. A.G. for Respondents

Date of hearing: 20th November, 1997.

MLD 2001 LAHORE HIGH COURT LAHORE 1454 #

2001 M L D 1454

[Lahore]

Before Dr. Munir Ahmad Mughal, J

DUR MUHAMMAD and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Civil Miscellaneous No. 1 in Criminal Appeal No. 607 of 2000, decided on 29th January, 2001.

Criminal Procedure Code (V of 1898)‑‑

‑‑‑S. 426‑‑‑Penal Code (XLV of 1860), S.302/34‑Petition for suspension of sentence‑‑‑Judgment of the Court showed that one of the accused was 75 years old and other was 55 years old‑‑‑Apart from oldage accused persons had bad health‑‑‑Another co‑accused had suffered hatchet blow on his chest from the deceased in the occurrence‑‑‑Occurrence had taken place at night and the accused had suffered protracted trial of ten long years‑‑‑Case was fit for suspension of sentence.

Sahibzada Farooq Ali Khan for Petitioners.

Khan Atta Ullah Khan Tarin for the State.

Date of hearing: 29th January, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1459 #

2001 M L D 1459

[Lahore]

Before Muhammad Akhtar Shabbir, J

Mst. NASREEN BIBI‑‑‑Petitioner

Versus

NAZEER AHMAD and another‑‑‑Respondents

Criminal Miscellaneous No. 77‑Q of 1998, decided on 7th December, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 435 & 561‑A‑‑‑Penal Code (XLV of 1860), Ss.354 & 354‑A‑‑Quashing of order‑‑‑Revision, maintainability of‑‑‑Police applied to the Magistrate for judicial' remand of the accused against whom case under S.354, P.P.C. was registered‑‑‑Magistrate observing that as shirt of the victim lady was torn, offence under S.354‑A, P.P.C. had been made out against the accused and remanded the accused to judicial lock‑up as prayed for by the police‑‑‑Additional Sessions Judge set aside order of the Magistrate in revision declaring the same to be illegal‑‑‑Revision‑‑Maintainability‑‑‑Order passed by the Magistrate being not a judicial order, but an executive order, revision against said order was not maintainable‑‑Power of revision under 5.435, Cr.P.C. was available only when a proceeding was pending before any inferior Criminal Court‑‑‑No proceeding was pending before the Magistrate as filing of application for judicial remand of the accused and passing order by the Magistrate on said application, could not be termed as a proceeding of a Court or a final order‑‑‑If order of the Magistrate was not passed in accordance with law, the remedy of Constitutional jurisdiction was available to call in question the order of the Magistrate and not the revisional jurisdiction.

Waheeduz Zaman v. Jamil 1997 PCr.LJ 1167 ref.

Ch. Saghir Ahmad for Petitioner. Javaid Haider Girdazai for Respondents.

Date of hearing: 7th December, 1999.

MLD 2001 LAHORE HIGH COURT LAHORE 1468 #

2001 M L D 1468

[Lahore]

Before Asif Saeed Khan Khosa, J

SHABBIR AHMAD and 6 others‑‑‑Petitioners

Versus

S.H.O. POLICE STATION CITY, BUREWALA DISTRICT VEHARI and 2 others‑‑‑Respondents

Writ Petition No. 7206 and Civil Miscellaneous Application No. 2 of 2000, decided on 30th January, 2001.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16‑‑‑Quashing of F.I.R.‑‑‑Lady allegedly enticed by the accused had made statement on oath before the Court that she was major and sui juris and that she had never been enticed away by anybody and that F.I.R. in question was an outcome of sheer malice on the part of complainant who was her step‑mother‑‑‑Allegations levelled in the F.I.R. regarding the alleged enticement of the petitioner being patently false, allowing said F.I.R. to hold the field would amount to abuse of the process of law‑‑‑F.I.R. was quashed in circumstances.

Muhammad Ramzan Khalid Joiya with Miss Azra Saeed for Petitioners.

Mehmood Ashraf Khan for Respondent No.2.

Date of hearing: 30th January, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1475 #

2001 M L D 1475

[Lahore]

Before Jawad S. Khawaja, J

GHULAM MURTAZA and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 657‑B of 2000, decided on 5th April, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 394/411‑‑‑Bail‑‑‑Delay of thirty hours in reporting the matter to the police was not sufficiently explained, particularly in view of the fact that the two injuries allegedly suffered by the brother of the complainant were neither life threatening nor serious enough to justify the delay‑‑‑Motor‑cycle had been recovered on the pointation of the complainant‑‑‑Registration of criminal cases by both the parties against each other had reflected an enmity existing between them‑‑‑Accused were behind the bars for the past ten months and the mere fact of their trial having been commenced did not preclude them from grant of bail‑‑‑Bail was allowed to accused in circumstances.

Syed Murtaza Ali Zaidi for Petitioners.

Ch. Pervaiz Aftab for the Complainant.

Javaid Iqbal for the State.

Date of hearing: 5th April, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 1477 #

2001 M L D 1477

[Lahore]

Before Ch. Ijaz Ahmad, J

HAQ NAWAZ‑‑‑Petitioner

Versus

ZONAL CHIEF, NATIONAL BANK OF PAKISTAN, ZONE FAISALABAD and 2 others‑‑‑Respondents

Writ Petitions Nos. 4348 and 5978 of 2001, decided on 18th May, 2001.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Contractual obligation‑‑Enforcement of contract through Constitutional petition is not permissible in law.

Mumtaz Masood's case 1994 SCMR 2287 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Disputed question of fact‑‑‑High Court has no jurisdiction to resolve disputed question of fact in Constitutional jurisdiction.

Muhammad Ismail's case PLD 1996 SC 246 ref.

‑‑‑‑S. 9‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Alternate remedy, availability of‑‑‑Dispute was between borrower and banking company‑‑‑Contention of the borrower was that the Bank had not given the benefits of incentive schemes to him and refused to provide account statement‑‑‑Validity‑‑‑Borrower had alternate remedy available to him before competent Court under S.9 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997‑‑‑High Court; in the interest of justice directed the Bank to provide the account statement and give benefit of incentive schemes to the borrower‑‑‑Petition was disposed of accordingly.

Ch. Abdul Ghaffar for Petitioner.

Malik Akhtar Hussain Awan, A.A.G. for Respondents.

MLD 2001 LAHORE HIGH COURT LAHORE 1479 #

2001 M L D 1479

[Lahore]

Before Maulvi Anwarul Haq, J.

MUHAMMAD YAQUB and 2 others‑‑‑Petitioners

Versus

RANG ILLAHI and 16 others‑‑‑Respondents

Civil Revision Case No.641/D of 1988, heard on 23rd February, 2001

(a) Islamic Law‑‑‑

‑‑‑‑Inheritance‑‑‑Surrendering share in 'Tarka' during lifetime of the predecessor ‑‑‑Validity‑‑‑Share in property in the lifetime of predecessor could not be surrendered as the successor never had any interest in the same while the predecessor was alive.

(b) Islamic Law‑‑‑

‑‑‑‑Inheritance‑‑‑Surrendering share in the property of father during lifetime of the father‑‑‑Concurrent findings of fact by the Courts below‑‑‑Plaintiff filed suit for partition of the property owned by her deceased father‑‑Defendants produced surrender deed allegedly executed by the plaintiff in favour of the defendants during the lifetime of their father whereby the plaintiff had surrendered her share in the property owned by her father‑‑Trial court dismissed the suit and Lower Appellate Court upheld the judgment passed by Trial Court‑‑‑Contention of the defendants was that on the basis of the recital they had continued in possession of the properties while one of the defendants had spent some money on repairs/ improvements‑‑‑Validity‑‑‑High Court declined to accept the contention of defendants observing that suit property belonged to the deceased father of the parties and when he died the same was inherited by his sons, daughter and widow‑‑‑Record did not establish that plaintiff had even relinquished or surrendered her property in favour of the defendants‑‑‑Plaintiff. in circumstances, was entitled to inherit the share as claimed by her and to get separate possession of the same by partition‑‑‑Judgments and decrees passed by both the Courts below were set aside.

Riaz Ahmad Kasuri for Petitioners.

Iftikhar Ahmed Dar for Respondents Nos. 1 to 3 and 6 to 9.

Ch. Khurshid Ahmad for Respondents Nos. 7 and 17.

Nemo for the Remaining Respondents.

Date of hearing: 23rd February, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1489 #

2001 M L D 1489

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

ABDUL GHAFOOR‑‑‑Petitioner

Versus

KALA‑‑‑Respondent

Civil Miscellaneous Nos.2, 3/C/2001 in Civil Revision No.348 of 1983, decided on 2nd May, 2001.

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑‑S.5‑‑‑Expression "sufficient cause"‑‑‑Scope‑‑‑Sufficient cause is a cause which is beyond the control of party invoking aid of S.5 of Limitation Act, 1908‑‑‑Cause should receive liberal construction so as to advance substantial justice‑‑‑Expression 'sufficient cause' must be determined by reference to the circumstances of a particular cause.

Krishma's case 13 Mad. 269 and Girdhari Lal's case AIR 1937 Oudh 436 ref.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.5‑‑‑Condonation of delay‑‑‑Failure to mention date of knowledge in the application‑‑‑Effect‑‑‑Where applicant did not mention date of knowledge in application for condonation of delay, such fact would bring the case in the area that the applicant had not approached the Court with clean hands‑‑‑Duty and obligation of the applicant was to explain delay of each and every day from the date of knowledge‑‑‑High Court declined to condone the delay in circumstances.

Lal Din and others v. Muhammad Ibrahim 1993 SCMR 710 distinguished.

2000 MLD 1345; Mian Abdur Rahim Saithi v. Federation of Pakistan through Ministry of Defence 2000 SCMR 1197 and Ghulam Muhammad's case 1993 SCMR 662 ref.

‑‑‑‑ Parties are bound by their pleadings.

(d) Practice and procedure‑

‑‑‑‑ Each and every case is to be decided on its own peculiar circumstances.

Hamid Ali Mirza for Petitioner.

MLD 2001 LAHORE HIGH COURT LAHORE 1494 #

2001 M L D 1494

[Lahore]

Before Ch. Ijaz Ahmad, J

TARIQ MAHMOOD and another‑‑‑Petitioners

Versus

AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN through Manager, A.D.B.P. Branch, T.T. Singh and 5 others‑‑‑Respondents

Writ Petitions Nos.7161 and 7125 of 2001, decided on 2nd May, 2001.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 199 & 203‑G‑‑‑Constitutional petition‑‑‑Contractual obligation‑‑Charge of interest by the Bank‑‑‑Where the agreement was executed with free will of the parties, the same could not be enforced through Constitutional petition‑‑‑High Court in view of Art. 203‑G of the Constitution authority to determine the charge of interest.

Mumtaz Masood's case 1994 SCMR 2287 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Show‑cause notice‑‑‑Constitutional petition against show cause notice is not maintainable.

Shagufta Begum's case PLD 1989 SC 360 rel.

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Disputed question of fact‑‑‑High Court has no jurisdiction to resolve such question in exercise of Constitutional. jurisdiction.

Muhammad Younas Khan's case 1993 SCMR 618 rel.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Alternate remedy‑‑‑Contractual obligation‑‑‑ Petitioners obtained loan from the respondent‑Bank and repaid almost the principal amount‑‑‑Balance amount was alleged to be interest which was un‑Islamic‑‑‑Petitioners raised the plea that as interest was against the Injunctions of Islam, the respondent‑Bank could not recover the balance amount ‑‑‑Validity‑‑‑Petitioners had alternate remedies under the law either to approach the respondent‑Bank or to file civil suit before competent Court‑‑High Court directed the petitioners to approach the respondent‑Bank to discharge their liabilities strictly in accordance with law, rules and Notification read with terms of the agreement‑‑‑High Court further directed the respondent‑Bank to allow the petitioners any benefit/concession permissible in law and' to consider the request of the petitioners to discharge their liability in easy instalments‑‑‑Petition was disposed or accordingly.

Mehmood‑ur‑Rehman's case PLD 1992 FSC 1; Muhammad Aslam Khaki's case PLD 2000 SC 225; Muhammad Younas Khan's case 1993 SCMR 618 and Muhammad Ismail's case PLD 1996 SC 246 ref.

Ch. Ghulam Qadir Cheema for Petitioner.

MLD 2001 LAHORE HIGH COURT LAHORE 1500 #

2001 M L D 1500

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD IQBAL and 4 others‑‑‑Petitioners

Versus

Haji MUHAMMAD NAZIR QURESHI‑‑‑Respondent

Civil Revision No.138 of 1988, heard on 20th April, 2001.

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4 & 21‑‑‑Right of pre‑emption ‑‑‑Partial pre‑emption ‑‑‑Dispute was with regard to partial payment of consideration amount by the vendee for partial pre‑emption ‑‑‑Both the Courts below did not accept such plea of the pre‑emptor ‑‑‑Validity‑‑‑Unless the Statute conferring right of pre‑emption had otherwise provided, the pre‑emptor had to seek pre‑emption of the whole of the subject‑matter of the sale and had to pay the entire price paid by the vendee as consideration which was, however, 'subject to certain limitations which at any rate did not include the vendor's defective or want of title‑‑‑Judgments of both the Courts below were maintained by the High Court.

Labh Singh v. Kher Singh AIR 1945 Lah. 11 distinguished.

Bashiran and 7 others v. Abdul Ghani and 4 others 1995 SCMR 1833; Malik Hussain and others v. Lala Ram Chand and others PLD 1970 SC 299 and Ghulam Muhammad v. Khushi Muhammad PLD 1973 SC 444 rel.

Taqi Ahmad Khan for Petitioners.

Malik Abdul Wahid for Respondent.

Date of hearing: 20th April, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1502 #

2001 M L D 1502

[Lahore]

Before Ch. Ijaz Ahmad, J

SHARAFAT ALI through Mukhtar‑e‑Aam‑‑‑Petitioner

Versus

DEPUTY COMMISSIONER/COLLECTOR, KASUR and 46 others‑‑‑Respondents

Writ Petitions Nos. 3786, 6842 and 6780 of 1990, heard on 27th March, 2001.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

‑‑‑‑S. 3‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Unclean hands of the petitioner‑‑‑Disputed question of fact and law‑‑‑Question about disputed land, as to whether the same was surrendered land or not‑‑‑Contention of the petitioners was that the suit‑land was surrendered land and the same could not be allotted to any person, whereas the respondents claimed that the land was not a surrendered land‑‑‑Notified Officer failed to give any finding in such fact‑‑‑Validity‑‑‑None of the parties had approached the Authorities or the High Court with clean hands‑Both the parties wanted to usurp or grab the State land by all means‑‑‑Where the case was to be re‑examined on facts and law applicable in the first instance by the Notified Officer, order passed by the Authorities was set aside and the case was remanded for fresh decision in accordance with law.

Sher Afzal Khan and others v. Haji Razi Abdullah 1984 SCMR 228; 1984 SCMR 403; 1987 SCMR 2027; 1986 CLC 2130; 1985 MLD 2084; 1986 CLC 2194; 1986 MLD 1028; 1988 MLD 468; Dildar Khan and 5 others v. Hamid Ali and 22 others 1993 SCMR 1887 and Muhammad Baran's case PLD 1991 SC 691 ref.

Sher Afzal Khan and others v. Haji Razi Abdullah 1984 SCMR 228; Rammad Hussain v. Assistant Commissioner and others PLD 1986 Lah. 116, Muhammad Baran v. Member. Settlement Rehabilitation Board of Revenue PLD 1991 SC 691; Syed Wajid‑ul‑Hassan Zaidi v. Government of Punjab and others 1997 SCMR 1901; Ghafoor Bakhsh v. Haji Muhammad Sultan and others 2001 SCMR 398; Federation of Pakistan and others v. Haji Muhammad Saif Ullah Khan and others PLD 1989 SC 166; Saif Ullah Khan and others v. Settlement Commissioner and others 1982 SCMR 853; 1990 PCr.LJ 226; Wajid Ali and others v. Board of Revenue, Punjab and others PLD 198? Lah. 716; Malik Muhammad Asif v. Province of Sindh and others 1990 MLD 2192; Mst. Ghulam Fatima and another v. Border Area Allotment Committee and others 1982 CLC 2217; Abdul Majid v. Mehmood Qureshi and others NLR 1982 SCJ 570; Messrs Bakhsh Textile Mills Ltd. v. Pakistan and others 1982 SCMR 497; M.E. Patel v. Tejamul Hussain 1982 CLC 2239; Mst. Majida Begum v. Settlement Commissioner, Lahore 1986 CLC 2314 and Abdul Ghani v. Mst. Zahida Begnm and others PLD 1982 Lah. 401 distinguished.

A.R. Shaukat, Ch. Amir Hussain, Malik Abdul Majid and Syed M. Kaleem Ahmad Khurshid for Petitioners, Azim‑ud‑Din. Khalid Saeed, Sardar Shoukat Ali, Zafar Ali Raja for respondents Nos. 10 to 42, 46, 47, 45, 43 and 44.

Date of hearing: 27th March, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1511 #

2001 M L D 1511

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. KHURSEID BIBI‑‑‑Petitioner

Versus

REHMAT ALI and 7 others‑‑‑Respondents

Civil Revision No. 456‑D of 1989, heard on 14th February. 2001

Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑Arts. 72, 73 & 74‑‑‑Gift‑‑‑Deed, proof of‑‑‑Execution of gift deed was disputed‑‑‑Failure to produce copy of the document in Court‑‑‑Plaintiff denied execution of gift deed in favour of defendant‑‑‑Neither the gift deed was produced before the Trial Court nor any oral evidence in support of the execution of the deed was produced‑‑‑Trial Court decreed the suit but the Lower Appellate Court dismissed the suit on the ground that the disputed gift deed was a registered document‑‑‑Validity‑‑‑Mere fact that the document was registered did not absolve a person seeking its benefit from proving the same as a fact when its execution was disputed‑‑‑Lower Appellate Court had acted without lawful authority while dismissing the suit‑‑‑Judgment passed by Lower Appellate Court was perverse and was not supported by any evidence on record‑‑‑High Court set aside the judgment passed by Lower Appellate ' ;;Court and that of the Trial Court was restored.

Mirza Muhammad Sharif and 2 others v. Mst. Nawab Bibi and 4 others 1993 SCMR 462 and Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 ref.

Muhammad Iqbal Wehniwal for Petitioner.

Ch. Khurshid Ahmad for Respondents.

Date of hearing: 14th February, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1518 #

2001 M L D 1518

[Lahore]

Before Maulvi Anwarul Haq, J

Chaudhry SHAH MUHAMMAD and 6 others‑‑‑Appellants

Versus

MUHAMMAD ISHAQ and 5 others‑‑‑Respondents

Regular Second Appeal No. 107 of 1989, heard on 22nd February, 2001:

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 75 & O.XXVI, R.9‑‑‑Local Commissioner‑‑‑Powers of‑‑Determination of question of title by Local Commissioner ‑‑‑Validity‑‑Courts below could not abdicate their authority in favour of Local Commissioner to determine question of title.

(b) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 14, 15, 16 & 17‑‑‑Partial specific performance of agreement to sell‑‑Scope‑‑‑Where the case is not covered by provisions of Ss. 14, 15 & 16 of Specific Relief Act, 1877, partial specific performance of agreement to sell cannot be made.

‑‑‑‑S. 12‑‑‑‑Specific performance of agreement to sell‑‑‑Balance consideration amount, enhancement of‑‑‑Appellants had never refused the performance of the agreement yet they were dragged into litigation commencing from 17.5‑1977‑‑‑Effect‑‑‑High Court adopted the principle laid down by Supreme Court in ‑case of Muhammad Siddique v. Muhammad Akram reported as 2000 SCMR 533, and enhanced the balance consideration amount from Rs.40,000 to Rs.10,00,000‑‑‑Judgments and decrees of the Courts below were set aside in circumstances.

Muhammad Siddique v. Muhammad Akram 2000 SCMR 533 ref.

Habib Ahmed for Appellants.

Mirza Hafeez‑ur‑Rehman for Respondents.

Date of hearing: 22nd February, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1524 #

2001 M L D 1524

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD HAYAT and 38 others----Appellants

Versus

ABDUL RAHIM and 24 others---Respondents

Regular Second Appeal No. 74 of 1989, heard on 26th January, 2001.

(a) Transfer of Property Act IV of 1882)---

----S. 53---Transfer of property ---Voidable or void transaction---Entry in Revenue Record---Proof of such transaction---Plaintiff relied only on the mutation attested in his favour and produced no witness to prove the disputed transaction---Trial Court dismissed the suit but Appellate Court allowed the appeal and decreed the suit---Validity---Even if mutation was incorporated it the Revenue Record, in case of dispute, person seeking benefit under the same would not be absolved of his duty to prove the transaction---Appellate Court had grossly misread the evidence and had acted in oblivion of law while relying solely on the mutation itself to undo the findings recorded by Trial Court---Where findings of the Trial Court were based on proper reading of evidence on record, High Court reversed the findings of Appellate Court---Judgment passed by Appellate Court was set aside and that of the Trial Court was restored in circumstances.

Muhammad and others v. Sardul PLD 1965 Lah. 472; Mst. Bibi Mukhtar v. Mst. Amrezan and another PLD 1968 Pesh. 169; Abdul Majeed and others v. Muhammad Subhan and 2 others 1999 SCMR 1245 and Ziauddin Rafi v. Muhammad Khan and others PLD 1962 Lah. 321 ref.

(b) Transfer of Property Act (IV of 1882)---

----S. 43---Transfer by unauthorized person--- "Feeding the estoppel, principle of---Applicability---Where on fraudulent or erroneous representation that he is authorised to transfer certain immovable property, a person proceeds to transfer the same for consideration, then till such time that the contract of transfer subsists, such transfer at the option of the transferee operates on any interest which the transferor may acquire in any such property sold on fraudulent or erroneous representation of the transferor.

----S. 43---Transfer by unauthorised person---Valid title of transferor--Inquiry by transferee---Decree was passed in favour of the transferor by Civil Court---Transferees themselves were trying to get the suit-land through pre-emption, they were satisfied of a valid title of the transferor on the basis of Court decree---Effect---Where the transferor had not made fraudulent or erroneous representation, provisions of S.43 of Transfer of Property .Act, 1882, were not applicable.

Suba through his Legal Representatives v. Mst. Fatima Bibi through her Legal Representatives and others 1992 SCMR 1721 rel.

(d) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 53---Entry in Revenue Record proved to be illegal---Change of entry on the basis of invalid transfer---Validity---Where there was no valid transfer or no valid mutation in favour of a party, Revenue Authorities acted unlawfully in changing entries on the basis of such mutation---Old entries in Revenue Record were to continue till such time that new entries were made lawfully, otherwise it would be deemed that the old entries were continuing.

Misri through his Legal Heirs and others v. Muhammad Sharif and others 1997 SCMR 338 ref.

Ch. Mushtaq Masood for Appellants.

Raja Mehmood Akhtar for Respondents.

Dates of hearing: 21st and 26th January, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1532 #

2001 M L D 1532

[Lahore]

Before Ch. Ijaz Ahmad, J

DOHA BANK LIMITED through Duly Authorized Attorneys‑‑‑Petitioner

Versus

JAVAID CARPETS (PVT.) LTD. through Managing Director and 6 others‑‑‑Respondents

Writ Petition No. 18490 of 1999, decided on 28th March, 2001.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Fact that no right of appeal had been provided under the special law would not by itself justify the invoking of Constitutional remedy‑‑‑Constitutional petition was not maintainable in circumstances.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Pre‑conditions: Impugned order was without jurisdiction; was in excess of jurisdiction; or if it suffered from infirmity of the nature which would involve jurisdictional defect.

‑‑‑‑S. 10‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Interlocutory order‑‑‑Leave to defend the suit was allowed by Banking Court‑‑‑Bank raised the plea that since no right of appeal was provided in the law against grant of leave to defend the suit, Constitutional petition was the remedy‑‑‑Validity‑‑‑What the Legislature held to be an interlocutory order not by itself fit to be appealable should not by such ‑device be held fit enough to attract the jurisdiction of more important, and higher level i.e. the Constitutional jurisdiction‑‑‑Any condition or practice the contrary would defeat and deflect the Legislature intent‑‑‑Constitutional petition was not maintainable in circumstances.

Muhammad Saeed's case PLD 1978 Lah. 1459; Mumtaz Hussain's case 1976 SCMR 450; Khokhar Engineering Company's case 1986 MLD 2941; National Bank of Pakistan's case PLD 1985 Lah. 150; Suleman Mehmood Mill's case PLD 1982 Lah. 353 and Messrs Narumal Jetomal's case 1983 CLC 2695 fol.

M.Y. Malik's case 1993 MLD 1211 and Habib Bank Ltd.'s case 1987 CLC 1002 distinguished.

Adnan Saeed Malik for Petitioner.

MLD 2001 LAHORE HIGH COURT LAHORE 1536 #

2001 M L D 1536

[Lahore]

Before Najam‑ul‑Hassan Kazmi, J

FAIZ BAKHSH and others‑‑‑Petitioners

Versus

Mst. KANIZ FATIMA and others‑‑‑Respondents

Civil Revision No. 140 of 1999/BWP, decided on 24th June, 1999.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑‑S.12‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2‑‑‑Suit for specific performance of agreement‑‑‑Temporary injunction, grant of‑‑Revisional jurisdiction of High Court‑‑‑Civil Court declined the grant of injunction to the extent of possession, but alienation of the suit property was stayed by the Court‑‑‑Execution agreement of suit land and plea of delivery of possession in part performance of agreement was also under issue‑‑‑Trial Court was justified in declining the injunctive relief qua the possession‑‑‑If the plaintiffs were entered as lessees in the Revenue Record, the defendants could not be restrained from taking legal steps for charging the rent and mesne profit‑‑‑Refusal to grant injunctive relief in regard to possession could not be objected to for any valid reason in circumstances.

G.N. Gohar for Petitioners.

Sayed Muhammad Anwar Shah for Respondents.

Date of hearing; 24th June, 1999.

MLD 2001 LAHORE HIGH COURT LAHORE 1537 #

2001 M L D 1537

[Lahore]

Before Ch. Ijaz Ahmad, J

IQTEDAR HYDER‑‑‑Petitioner

Versus

BANK OF PUNJAB through Chairman and another‑‑‑Respondents

Writ Petition No. 5979 of 2001, decided on 13th April, 2001.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Alternate remedy ‑‑‑Effect‑‑Constitutional petition is not maintainable in presence of alternate remedy.

Muhammad Ismail's case PLD 1996 SC 246 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Discretion, exercise of‑‑‑Scope‑‑Constitutional jurisdiction is discretionary in nature.

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Equity consideration‑‑‑He who seeks equity must come to Court with clean hands.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Discretion, exercise of‑‑‑Failure to file appeal before High Court or objection petition before Executing Court‑‑Effect‑‑‑Where the matter was not agitated at proper time before proper forum, High Court declined to exercise discretion in favour of the petitioner accordingly.

Nawabzada Ronaq Ali's case PLD 1973 SC 236 and Zain‑ulAbidin's case PLD 1966 SC 445 ref.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 189‑‑‑Judgment passed by Supreme Court has prospective effect and not retrospective effect.

Muhammad Yousuf's case PLD 1968 SC 101 ref.

(f) Res judicata‑‑‑

‑‑‑‑Principle of‑‑‑Applicability‑‑‑Where judgment passed by Trial Court was neither assailed before higher forum nor any objection petition was filed at the time of execution, such judgment was binding on the parties‑‑‑Principle of res judicata was applicable in circumstances.

Pir Bakhsh and others' case PLD 1987 SC 145 ref.

(g) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition ‑‑‑Laches‑‑‑Decree was passed on 12‑9‑1998 and execution petition was filed and during pendency of execution petition petitioner had filed Constitutional petition on 12‑4‑2001‑‑‑Principle of laches was applicable in circumstances.

Khiali Khan's case PLD 1997 SC 304 ref.

(h) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 15‑‑‑Constitution of Pakistan (1973), Arts. 199 & 203‑G‑‑Constitutional petition‑‑Vires of S.15 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997‑‑‑Seeking of declaration that the Act was against Injunctions of Islam‑‑‑Jurisdiction of High Court‑‑Validity‑‑‑High Court, by virtue of Art. 203‑G of the Constitution, had no jurisdiction to declare the provision against Injunctions of Islam.

Muhammad Ramzan's case 2001 CLC 158 ref.

(i) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Art (XV of 1997)‑‑‑

‑‑‑‑Ss. 8 & 18‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Alternate remedy‑‑‑Setting aside of mark‑up‑‑‑Suit against the petitioner was decreed by the Banking Court and execution petition was pending‑‑‑Petitioner deposited the decretal amount but failed to deposit mark‑up‑‑‑Application for setting aside of mark‑up was trot yet decided by the Bank Authorities and no such application was filed before the Banking Court‑‑‑Validity‑‑‑High Court declined to interfere in the matter and directed the petitioner to approach the Bank Authorities or the Banking Court for redressal of his grievance‑‑‑Constitutional petition was disposed of accordingly.

Muhammad Aslam Khaki's case PLD 2000 SC 225 and U.B.L.'s case 2001 MLD 326 distinguished.

Ashar Elahi for Petitioner.

MLD 2001 LAHORE HIGH COURT LAHORE 1541 #

2001 M L D 1541

[Lahore]

Before Ghulam Mahmood Qureshi, J

BAHADUR KHAN‑‑‑Petitioner

Versus

D.C./COLLECTOR and 3 others‑‑‑Respondents

Writ Petition No. 645 of 1999, decided on 16th February, 1999, West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S. 36‑‑‑Constitution of Pakistan (1973), Art‑199 ‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Failure of Lambardar to deposit amount of land revenue collected from the landowners ‑‑‑Lambardar who was proceeded against for non‑deposit of land revenue collected from landowners, challenged such proceedings in Constitutional petition without disclosing that he had already filed a civil suit against such action of the Authorities which was dismissed by Trial Court and Appellate Court‑‑‑Petitioner who was guilty of suppression of material facts was not entitled to get equitable relief in circumstances‑‑‑Petition was dismissed.

Malik Muhammad imtiaz Mahl for Petitioner.

Muhammad Farooq Qureshi Chishti for Respondent No.3.

Muhammad Nawaz Bhatti, Addl. A.G. for Respondents Nos.2 and 4.

Date of hearing: 16th February, 1999.

MLD 2001 LAHORE HIGH COURT LAHORE 1546 #

2001 M L D 1546

[Lahore]

Before Muhammad Akhtar Shabbir, J

SAID MUHAMMAD ‑‑‑Petitioner

Versus

SHER MUHAMMAD and 2 others‑‑‑Respondents

Civil Revision No. 143‑D of 2000, decided on 8th November, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S115 [as amended by Code of Civil Procedure (Amendment) Act (VI of 1992)]‑‑‑Limitation Act (IX of 1908), S.12(2)‑‑‑Revision‑‑‑Limitation‑‑Delay, condonation of‑‑‑Subsection (2) of S.12 of Limitation Act, 1908 has restricted its application to filing of appeal and two kinds of applications, namely an application for leave to appeal and an application for review of judgment only‑‑‑Benefit of S.12(2), Limitation Act, 1908 is not attracted to the revision applications as S.12(2) has nowhere mentioned revision applications‑‑‑Since the benefit of period of computation for obtaining copy of impugned judgment was not attracted in cases of filing revision, the time in case of filing revision would start running from date when judgment impugned in revision was passed‑‑‑Revision petition filed after more than two months from the prescribed period of ninety days was not maintainable especially when neither any application for condonation of delay was filed nor petitioner had orally prayed for condonation of delay.

Deputy Commissioner, Pishin v Abdul Salam and others PLD 1993 Quetta 121 ‑ Tahir Ali and others v. ' Chief Judge, Karachi Small Causes Court PLD 1960 (W.P.) Kar. 795; Sirajuddin v. Najamuddin 2000 CLC 467; Citibank N.A., a Banking Company through Attorney v. Riaz Ahmad 2000 CLC 847; Divisional Forest Officer and others v. Haji Sher Muhammad 2000 CLC 650; Government of N.W.F.P. through Chief Secretary and 3 others v. Abdul Malik 1994 SCMR 833 and Muhammad Mian v. Syed Shamimullah and 2 others 1995 SCMR 69 ref.

Syed Ghulam Mohayyuddin Gillani for Petitioner.

Shahzad Hussain Sheikh for Respondents.

Date of hearing: 8th November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 1549 #

2001 M L D 1549

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD ASHRAF ‑‑‑ Petitioner

Versus

PROVINCE OF PUNJAB through Collector, Bahawalnagar and another‑‑‑Respondents

Civil Revision No.49‑D of 1984/BWP, heard on 16th December, 2000.

(a) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S.163‑‑‑Review‑‑‑Additional Commissioner and the Commissioner enjoyed concurrent appellate powers and the Additional Commissioner was not subordinate to the Commissioner‑‑‑Commissioner could review his own order or any of his predecessor‑in‑office and Additional Commissioner being not predecessor‑in‑office of the Commissioner, the Commissioner was not competent to review the order passed by Additional Commissioner‑‑‑Order passed by the Additional Commissioner could only be reviewed by himself or by his successor‑in‑office.

(b) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S.163‑‑‑Review‑‑‑Order against which an appeal had been preferred, could not be reviewed‑‑‑Review could only be made if grounds of review existed at the date of the order sought to be reviewed and not based on happening of some subsequent events‑‑‑That procedure for review should be used as an alternative to appeal or revision was not the intention of the West Pakistan Land Revenue Act, 1967.

‑‑‑‑S.115‑‑‑Revisional jurisdiction‑‑‑Scope‑‑‑Judgments and decrees passed by both the Courts below which suffered from illegality and infirmities, were not sustainable in law and the High Court in such‑like cases could set at naught the concurrent findings of facts of the Courts below in exercise of its revisional jurisdiction.

Raja M. Sohail Iftikhar for Petitioner.

Ch. Muhammad Amjad Khan and Saleem Nawaz Abbasi, Addl. A.G. assisted by M.A. Farazi for Respondents.

Date of hearing: 16th December, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 1557 #

2001 M L D 1557

[Lahore]

Before Muhammad Farrukh Mahmud, J

AHMAD BAKHSH‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.929‑B of 2001, decided on 17th May, 2001.

(a) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.337‑A(iii), 337‑F(v), 452 & 148/149‑‑‑Bail, grant of‑‑‑Accused was an old man of seventy years and at the time of occurrence he was empty‑handed‑‑‑Empty‑handed accused could not be equated with an accused who came on the scene of occurrence full), armed with a weapon‑‑‑Punishment provided in S.337‑A(iii), P.P,C. for Shujjah‑i‑Hashimah was "Arch" and imprisonment which could extend to ten years, was discretion of the Trial Court which was to be exercised after conclusion of the trial in accordance with the circumstances of the case.

PLD 1989 SC 585 and PLD 1972 SC 81 ref.

(b) Criminal Procedure Code (V of 1898)

‑‑‑‑S. 497(1)(5)‑‑‑Post‑arrest bail‑‑‑Grant and cancellation of‑‑Considerations‑‑‑Considerations for post‑arrest bail and cancellation of bail were different and once the concession of bail was granted to a person, it should not be snatched away from him without solid reasons.

Mian Riaz Hussain for Petitioner.

Syed Chiragh Din Shah for the Complainant. .

Syed Hassan Raza Rizvi for the State.

MLD 2001 LAHORE HIGH COURT LAHORE 1559 #

2001 M L D 1559

[Lahore]

Before Riaz Kayani, J

TAHIR ABBAS alias BABAR ALI ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.4057‑B of 2000, decided on 31st July, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10 & 18‑‑‑Bail, grant of‑‑‑Breaking of the string of Shalwar of victim girl and removing same, was yet to be determined by the Court whether it amounted to attempt to commit rape or the offence fell for outraging the modesty of the girl which was punishable under S.354, P.P.C.‑‑‑Accused was behind the bar for about three months from his arrest and long‑standing rivalry was established between the parties‑‑‑Reasonable grounds being existing to believe that the accused had not committed a non-bailable offence, further grounds could be inquired into the guilt of the accused‑‑‑Bail was granted to the accused.

Nazar Abbas Syed for Petitioner.

Ch. Nazeer Ahmad for the State.

MLD 2001 LAHORE HIGH COURT LAHORE 1563 #

2001 M L D 1563

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUKHTAR AHMAD ... Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.887‑B of 2001, decided on 17th May, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Penal Code (XLV of 1860), 5.161‑‑‑Pre‑arrest bail, confirmation of‑‑‑Accused against whom only the statement of complainant was on record had been exonerated by the two Investigating Officers‑‑‑Accused being a public servant, was not likely to jump the bail or escape from the trial‑‑‑Interim pre‑arrest bail granted to the accused was confirmed in circumstances.

Mian Arshad Latif for Petitioner.

Muhammad Arshad Naseem for the State.

MLD 2001 LAHORE HIGH COURT LAHORE 1564 #

2001 M L D 1564

[Lahore]

Before Nasim Sikandar, J

NOOR AHMAD‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.788‑B of 2000, decided on 23rd May, 2000

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/324 & 34‑‑‑Bail, grant of‑‑Accused was not only named in the F.I.R., but specific role had also been attributed to him‑‑‑Accused was found guilty by the police and incomplete challan had been submitted against him‑‑‑No case for concession of bail having been made out in favour of the accused, bail petition filed by him was dismissed.

Sohail Hameed v. Federation of Pakistan PLD 1993 FSC 44; Mst. Barkat Bibi v. Gulzar and another 1979 SCMR 65; Hakim Ali and 3 others v. The State 1979 SCMR 114 and Chiragh Din and others v. The State PLD 1967 SC 340 ref.

Sahibzada Farooq Ali for Petitioner.

Abdul Aziz Khan Niazi for the Complainant.

Mian Kamran Bin Latif for the State.

MLD 2001 LAHORE HIGH COURT LAHORE 1566 #

2001 M L D 1566

[Lahore]

Before M. Naeem Ullah Khan Sherwani, J

ZUBAIR RASHID ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.7750‑B of 2000, decided on 12th February, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑‑‑Bail, grant of‑‑‑Accused was not named in the F. I. R. despite the fact that. he was resident of the same locality where the occurrence took place and he was known to the prosecution witnesses‑‑Prosecution witnesses would have never omitted to mention the name of the accused in F.I.R. if he was seer, by them at the spot and had identified him‑‑Evidence against the accused had been procured after many days of the occurrence‑‑‑Test/identification parade had not been organised‑‑‑General features and complexion of the persons seen in the mosque where occurrence had taken place, were not furnished to the police at time of recording of the F.I.R, or even thereafter‑‑‑Certain family disputes being pending in‑between the two sides, possibility of accused's involvement on the basis of guess, gossip, rumours or imagination could not be ruled out altogether‑‑‑Case of the accused falling within the ambit of further inquiry, the Court exercised jurisdiction in granting bail to the accused.

1970 SCMR 30; 1983 SCMR 1001; 1996 PCr.LJ 166 and 1996 Cr.LJ 1976 ref.

Perwaiz Inayat Malik for Petitioner.

Abdul Qayyum Anjum for the State.

Sh. Anwar‑ul‑Haq Pannu for the Complainant.

Date of hearing: 12th February, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1569 #

2001 M L D 1569

[Lahore]

Before Muhammad Farrukh Mahmud, J

ASGHAR ALI ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 116‑B of 2001, decided on 10th May, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.379/467‑‑‑Bail, grant of‑‑Accused was in judicial lock‑up for the last more than eight months and no progress had been made in the case‑‑‑Case against the accused though prima facie was made out under S.379, P.P.C. but it would need thorough probe and inquiry and it would be ascertained only after recording the evidence whether the offence under 5.467, P.P.C. was made out against the accused 'or not‑‑‑Case against the accused being of further inquiry the accused was entitled to grant of bail.

Muhammad Khalid Farooq for Petitioner.

Ch. Saghir Ahmad, Standing Counsel for Federation.

Masood Sabir and Sh. Naseem Rashid for the State.

MLD 2001 LAHORE HIGH COURT LAHORE 1575 #

2001 M L D 1575

[Lahore]

Before Riaz Kayani, J

MUHAMMAD ARSHAD‑‑‑Petitioner

Versus

STATION HOUSE OFFICER and others‑‑‑Respondents

Writ Petition No. 18335 of 2000, decided on 13th September, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 379‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Theft‑‑‑Complainant (petitioner) had alleged that one of the accused had not been arrested as a result of connivance with the police official‑‑‑High Court directed that the complainant would appear before Superintendent of Police who would listen to his grievance and if after probe it was found correct that police official /Investigating Officer was taking side with the accused, investigation of the case would be transferred to an officer of an independent repute.

Haji Miran Malik for Petitioner.

MLD 2001 LAHORE HIGH COURT LAHORE 1576 #

2001 M L D 1576

[Lahore]

Before Khawaja Muhammad Sharif, J

Dr. MUHAMMAD ASHRAF‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal NQ.1957 of 2000 and Criminal Miscellaneous No.l of 2001, decided on 27th March, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.426‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Suspension of sentence‑‑Fatal shot and other injuries on the person of the deceased were attributed to co‑accused who was still at large and no injury was attributed to the accused‑‑‑Age of the accused, according to the police record at the time of registration of case against him was sixty‑six years‑‑‑Accused, in circumstances, had made out a case of suspension for sentence.

Naveed Inayat Malik for Appellant.

Mian Ghulam Hussain for the State.

Date of hearing: 27th March, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1578 #

2001 M L D 1578

[Lahore]

Before Falak Sher, CJ

JAMIL ASGHAR BHATTI‑‑‑Petitioner

Versus

THE STATE and 3 others‑‑‑Respondents

Writ Petition No.9571 of 2000, decided on 19th April, 2001

(a) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.169, 173, 245, 249‑A & 265‑K‑‑‑Penal Code (XLV of 1860), Ss. 302, 324, 148, 149 & 109‑‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑Discharge of accused=‑‑Police having found the accused innocent, requested Judicial Magistrate to discharge the accused, request of the police was turned down by the Magistrate on the ground of lack of jurisdiction as the case was triable by the Sessions Court ‑‑‑Validity‑‑Discharge of the accused from the case did not amount to his acquittal in terms of Ss.245, 249‑A or 265‑K, Cr.P.C. and discharge order was not a judicial order,, but was an. administrative order amenable to recall upon emergence/discovery of fresh material by the investigator on which count the Magistrate was the Competent Authority in terms of Ss. 169 & 173, Cr.P.C.‑‑‑Prior to the commencement of the trial or taking of cognizance of the matter by the Trial Court, the Magistrate was competent to pass orders regarding discharge of the accused, but after taking cognizance by the Trial Court, exclusive jurisdiction would vest in the Trial Court to pass appropriate order‑‑‑Order of the Magistrate refusing to entertain request of police for discharge of the accused on account of lack of jurisdiction, was set aside by High Court.

Sardar and others v. Muhammad Niwaz and another PLD 1949 Lah. 537; Brahm Dev v. Emperor AIR 1938 Lah. 469; Bashir Ahmad v. Allaqa Magistrate PLD 1980 Lah. 28; Wazir v. The State PLD 1962 Lah. 405 and Federation of Pakistan v. Malik Mumtaz Hussain 1997 SCMR 299 ref.

(b) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.173 & 190‑‑‑Report of Police Officer‑‑‑‑Binding, effect of‑‑‑Report submitted by the Investigating Officer under S.173, Cr.P.C. was not binding on the Court‑‑‑Court, notwithstanding the recommendation of the Investigating Officer regarding cancellation of the case and discharge of the accused from the case, could decline to cancel the case and proceed to take cognizance as provided in S.190, Cr.P.C. and summon the accused to face the trial.

Behadur and another v. The State and another PLD 1985 SC 62 ref.

Pervaiz Inayat Malik for Petitioner.

Ijaz Ahmad Chaudhry, Addl. A. G. Mian Muhammad Ilyas for the Complainant.

Date of hearing: 19th April, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1585 #

2001 M L D 1585

[Lahore]

Before Asif Saeed Khan Khosa, J

NAZIR AHMAD and 2 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Revision No.27 of 2001, decided on 26th January, 2001.

(a) Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S.540‑‑‑Summoning of the Police Officers as Court‑witnesses ‑‑‑Object‑‑Spirit underlying the provisions of S.540, Cr.P.C. was that a Trial Court could summon any person as a Court‑witness if his statement was considered essential by the Court for a just and correct decision of the case.

(b) Criminal trial‑‑‑

‑‑‑‑Evidence‑‑‑Opinion of Police Officer‑‑‑Admissibility of‑‑‑Opinion of Police Officer regarding guilt or innocence of an accused person or correctness or otherwise of a party's version was admissible in evidence.

‑‑‑‑Ss.439 & 540‑‑‑Summoning Police Officers as Court‑witnesses‑‑‑Revisional jurisdiction, exercise of‑‑‑Reasons advanced by the Trial Court for passing order were not averse to the principles governing exercise; of jurisdiction under S.540, Cr.P.C.‑‑‑No jurisdictional infirmity, illegality of approach, irregularity of procedure or perversity of reasoning on the part of the Trial Court having been pointed out in the case, High Court could not interfere in order of Trial Court in exercise of its revisional jurisdiction.

Syed Murtaza Ali Zaidi for Petitioners.

Date of hearing: 26th January, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1587 #

2001 M L D 1587

[Lahore]

Before Khawaja Muhammad Sharif, J

Mst. ROBINA‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.73‑J of 2000, decided on 19th January, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.201, 302‑B & 109‑‑‑Appreciation of evidence‑‑‑Complainant who claimed to be an eye‑witness, later on had introduced the story that he was told about the injuries on the person of the deceased by the one who was never produced by the prosecution‑‑‑Accused being a lady was alleged to have made extra judicial confession before three young persons including the complainant who were close relatives of the deceased, but they neither took the accused into custody nor produced her before the police‑‑‑Case against the accused being that of capital punishment, in such‑like cases evidence must have come from an unimpeachable source which was missing in the case as there was only extra judicial confession of the accused and that too before the close relatives of the deceased‑‑‑Extra judicial confession was weak type of evidence and capital punishment could not be awarded‑solely on such evidence‑‑‑Accused having been able to create doubt and dent in the prosecution story and the fact that possibility of accused's false implication could not be ruled out, conviction and sentence awarded to the accused by the Trial Court were set aside and the accused was released.

A.H. Masood for Appellant (at State expenses).

Muhammad Azam for the State.

Date of hearing: 19th January, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1603 #

2001 M L D 1603

[Lahore]

Before Ch. Ijaz Ahmad, J

GHULAM HAIDER ‑‑‑Petitioner

Versus

Mst. RASOOLAN and another‑‑‑Respondents

Civil Revision No. 1006 of 1996, heard on 3rd April, 2001.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 151‑‑‑Inherent powers of Court‑‑‑Appellate Court to examine legality of order passed by Trial Court‑‑‑Appellate Court is vested with jurisdiction under S.151, C.P.C. to examine legality of order passed by Trial Court in appeal instead of dismissing the appeal on technical grounds.

Muhammad Rafique v. Mst. Rashida Begum 1979 CLC 823 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Revisional jurisdiction of High Court‑‑‑Suo motu powers of High Court‑‑‑Scope‑‑‑High Court has ample power to see legality or illegality of the orders passed by the Courts below suo motu under S.115, C.P.C.

‑‑‑‑O. XVII, R.3‑‑‑Failure to produce evidence‑‑‑Dismissal of suit‑‑‑Plaintiff was provided ten opportunities to produce his evidence but he failed to do so‑‑‑Trial Court dismissed the suit‑‑‑Validity‑‑‑Trial Court did not commit any material irregularity and had rightly closed the evidence of the plaintiff.

Baldia Shahpur Saddar's case 1993 MLD 930; Muhammad Nawaz v. Manzoor Hussain and others 1993 CLC 1325 and Sajida Mussarat v. Muhammad Shaft and 2 others 1993 CLC 1514 ref.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XVII, R.3‑‑‑Failure to produce evidence‑‑‑Dismissal of suit‑‑‑Such order is "judgment" on merits.

Shahid Hussain v. Lahore Municipal Corporation PLD 1981 SC 474 ref.

(e) Discretion‑‑‑

‑‑‑‑Exercise of‑‑‑Discretion is to be exercised fairly, justly on relevant considerations in the light of attending facts and circumstances of each case.

Muhammad Siddique v. Syed Zulfiqar Haider and others 1995 CLC 431 ref.

(f) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XVII, Rr. 1 & 3‑‑‑Closing of evidence‑‑‑Setting aside of closing of evidence‑‑‑Failure to pay cost of adjournment‑‑‑Effect‑‑‑Non‑payment of cost is material fact to be considered at the time of setting aside the order passed by Trial Court under which the evidence of the party is closed‑‑‑Such non‑payment may entail penalties prescribed in O.XVII, R.3, C. P. C.

Naseem Ahmed v. Haji Usman and another.

1994 CLC 690 and 127 IC 27 ref.

(g) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XVII, Rr. 1 & 3‑‑‑Adjournment against cost‑‑‑Failure to produce evidence‑‑‑Effect‑‑‑Where the case was adjourned to produce evidence on payment of cost but the plaintiff again failed to produce his evidence, Trial Court was justified to close the evidence in circumstances.

Hassu Khan v. Muhammad Amin and others PLD 1994 Lah. 24 and Mehr Ghulam Dastgir v. Dr. M. Shabbir Khan 1994 CLC 348 ref.

(h) Administration of justice‑

‑‑‑‑ Nobody should be entitled to get benefit of his own misdeeds.

Malik A. Sattar Chughtai for Appellant.

Nemo for Respondents.

Date of hearing: 3rd April, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1608 #

2001 M L D 1608

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD RAMZAN‑‑‑Petitioner

Versus

FEDERATION OF ISLAMIC REPUBLIC OF PAKISTAN and 3 others‑‑‑Respondents

Writ Petition No.7156 of 2001, decided on 4th May, 2001.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Criminal Procedure Code (V of 1898), S. 491‑‑‑Constitutional petition ‑‑‑Habeas corpus petition‑‑‑Maintainability‑‑‑Where there is a proper remedy under the law available to petitioner/detenu, then the habeas corpus petition Constitutional petition is not maintainable.

Imdad Hussain's case PLD 1974 Kar. 485; Ghulam Muhammad's case PLD 1975 Kar. 118; Bari Ahmad's case 1994 CLC 273 and Ijaz Hussain's case 1994 CLC 275 ref.

(b) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S. 82‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Issuance of warrant of arrest under West Pakistan Land Revenue Act, 1967‑‑‑Validity‑‑‑High Court in exercise of Constitutional jurisdiction cannot go beyond such warrant to find out whether the same was issued after fulfilling the legal requirements under the provisions of West Pakistan Land Revenue Act, 1967, as the same requires inquiry.

Ch. Noor Hussain's case 1983 PCr.LJ 442; Arshad Hussain's case PLD 1982 Azad J&K 107 and Nisar Ahmad's case PLD 1997 SC 852 ref.

‑‑‑‑S.82‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Critt'tinal Procedure Code (V of 1898), S.491‑‑‑Constitutional petition/habeas corpus petition‑‑Maintainability‑‑‑Issuance of warrant of arrest under the provisions of West Pakistan Land Revenue Act, 1967‑‑‑Effect‑‑‑Where such warrant is issued in accordance with the provisions of West Pakistan Land Revenue Act, 1967, even in violation of the manner prescribed under the law, the same cannot be declared illegal through collateral proceedings‑‑‑Warrant of arrest issued under the provisions of West Pakistan Land Revenue Act, 1967, would be deemed to be in accordance with law unless and until the same is set aside by any competent Court/forum and the habeas corpus petition/Constitutional petition is not maintainable in circumstances.

Sabir Shah's case PLD 1994 SC 738 and Javaid Iqbal's case 1987 PCr.LJ 681 ref

(d) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S.82‑‑‑Mode of execution‑‑‑Scope‑‑‑Discretion vests in the Authority under the West Pakistan Land Revenue Act, 1967, to adopt any mode of execution.

Sayed Hassan Mahmud's case PLD 1980 Kar. 37 ref.

(e) Small Business Finance Corporation Act (XXIX of 1972)‑‑‑

‑‑‑‑Ss. 20 & 22‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition/habeas corpus petition‑‑‑Arrest of detenu in lieu of recovery proceedings ‑‑‑Detenu stood guarantor for the loan received by his son and the loanee failed to repay the same‑‑‑Authorities under the provisions of Ss.20 & 22, Small Business Finance Corporation Act, 1972, arrested the guarnator‑‑‑Contention of the petitioner was that the warrant of arrest was not issued according to the provisions of Land Revenue Act, 1967, hence the arrest was illegal‑‑‑Validity‑‑‑Constitutional petition was mala fide filed only to set up a defence to avoid from discharging the liabilities of the loan amount due against the detenu in order to impede course of recovery and hamper due process of law‑‑‑Bona fides of a petition have to be carefully examined as no one can be permitted to abuse the process of law ‑‑‑Detenu could only be set at liberty if his detention was illegal or improper‑‑‑Petition was dismissed in circumstances.

Akbari Begum's case PLD 1985 Lah. 123 and Shaukat Ali's case 1972 SCMR 398 ref.

Malik Muhammad Imran Khan for Petitioner.

Mian Ismat Ullah for Respondents.

MLD 2001 LAHORE HIGH COURT LAHORE 1615 #

2001 M L D 1615

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

FEDERATION OF PAKISTAN through Cabinet Secretary to the Government of Pakistan, Cabinet Secretariat, Islamabad and 2 others‑‑‑Appellants

Versus

ALLY BROTHERS & COMPANY (PAK.) LTD through Managing Director/Chief Executive and another‑‑‑Respondents

Regular First Appeals Nos. 324 and 338 of 2000, heard on 29th March, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XII, Rr. 5 & 6‑‑‑Admission by defendants‑‑‑Passing of judgment on the basis of such admission‑‑Pleadings contained controversial questions, both factual and legal‑‑‑Validity‑‑‑Questions contained in the pleadings necessitated trial and findings by the Court below‑‑‑Admissions attributed to the defendants in the written statements were not of the nature as to show that they were confessing the claim of the plaintiffs‑‑‑Trial Court could not pass judgment on the basis of such admission within the purview of OXII, R.6,. C.P.C.‑‑‑Incumbent upon the Trial Court to frame issues and then decide the case in accordance with the procedure provided in Civil Procedure Code, 1908‑‑‑Judgment passed by the Trial Court was set aside and the case was remanded for decision afresh.

Macdonld & Company Pak. Ltd.'s case 1996 SCMR 699 ref.

M. Nawaz Bhatti, Deputy Attorney‑General for Appellants.

Sh. Zia Ullah for Respondents.

Date of hearing: 29th March, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1617 #

2001 M L D 1617

[Lahore]

Before Maulvi Anwarul Haq, J

ILYAS AKHTAR and 2 others‑‑‑Petitioners

Versus

KHAN ZAMAN and another‑‑‑Respondents

Civil Revision Nos. 1785 and 1786 of 1990, heard on 28th March, 2001.

(a) Contracts Act (IX of 1872)--

‑‑‑‑S. 202‑‑‑Irrevocable power of attorney‑‑‑Scope‑‑‑In absence of any evidence that the attorney had interest in property forming subject‑matter of the agency, any clause in the power of attorney would not be a bar to the revocation of the agency.

(b) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S. 41‑‑‑Inquiry by vendees‑‑‑Revoking of agency‑‑‑Purchase of suit property from attorney‑‑‑Plaintiff was allotted the suit land who had earlier executed power of attorney which was later on revoked ‑‑‑Vendees purchased the suit property from the attorney‑‑‑Such transfer was assailed by the plaintiff in civil suit and the same was dismissed by the Trial Court‑‑‑Lower Appellate Court in exercise of appellate jurisdiction allowed the appeal and judgment passed by the Trial Court was set aside‑‑‑Contention raised by the vendee was that he was bona fide purcahser without notice of revocation of the agency‑‑‑Validity‑‑‑Registration of the revocation of power of attorney constituted sufficient notice‑‑‑Record showed that after the cancellation of the power of attorney the vendees proceeded to purchase the land and that too not on the basis of original power of attorney but from the sub‑agent of the attorney‑‑‑Vendees should have checked up the record of the Registrar's office before acting upon the representation made by the sub‑agent that the original power of attorney was still in force‑‑‑Deeds in favour of vendees were without lawful authority and as such were void‑‑‑Lower Appellate Court had not committed any error in passing the judgment and decree enabling High Court to interfere with the same.

‑‑‑‑ Power of attorney is to be strictly construed.

(d) Power of attorney‑‑‑

‑‑‑‑Construction‑‑‑Power of attorney to be strictly construed.

Fida Muhammad v. Pir Muhammad Khan through his Legal Heirs PLD 1985 SC 341 ref.

Syed Zafar Ali Shah for Petitioners.

M. Aziz for Respondent No. 1.

Respondent No.2: Ex parte.

Date of hearing: 28th March, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1621 #

2001 M L D 1621

[Lahore]

Before Maulvi Anwarul Haq, J

PROVINCE OF PUNJAB and others‑‑‑Petitioners

Versus

ABDUL GHAFOOR and others‑‑‑Respondents

Civil Revision No.595‑D of 1984 and Civil Miscellaneous No.1‑C of 1998 decided on 20th October, 2000.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss.13, 15 & 17‑‑‑Civil Procedure Code (V of 1908), Ss. 47, 115 & O. XXI, Rr.100, 101 & 103‑‑‑Execution of ejectment order‑‑‑Rent Controller would execute ejectment order as if it were a decree of a Civil Court‑‑‑Rent Controller while executing an ejectment order as a Civil Court decree, was vested with all powers as were enjoyed by a Civil Court for effectively executing a decree‑‑‑Procedural provisions contained in Rr.100 & 101 of O.XXI, C.P.C. were a part of procedural law relating to execution of decree and could be invoked in execution of an order passed by a Rent Controller‑‑‑Suit filed by the tenant which primarily raised the question that the ejectment was being sought from a property not vesting in landlord was completely barred by S.47, C.P.C. read with O. XXI, 8.103, C.P.C.‑‑‑All questions of title and possession were to be decided by the Court executing a decree and suit was barred‑‑‑Revision petition arising out of a civil suit filed by the tenant to dilate upon the decision given by the Executing Court and upheld by the Court of first appeal was not sustainable.

Haji Abdul Wali Khan and another v. Muhammad Hanif and another 1991 SCMR 2457 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss.13 & 15‑‑‑Order by Rent Controller‑‑‑Nature‑‑‑Order passed by Rent Controller and upheld in appeal as well as in second appeal was final which could not be questioned.

Izharul Haq Sheikh for Petitioners.

Zainul Abiddin for Applicant (in C.M. 1‑C of 1998).

Muhammad Naeem Sehgal for Respondent No. 14.

Nemo for the Remaining Respondents.

Date of hearing: 20th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 1624 #

2001 M L D 1624

[Lahore]

Before Amir Alam Khan, J

JABAR KHAN‑‑‑Petitioner

Versus

AKHTAR HUSSAIN and others‑‑‑Respondents

Civil Revision No. 184 of 2000, decided on 2nd May, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.96‑‑‑Appeal from original decree‑‑‑Appeal against judgment and decree passed by the Trial Court was dismissed by Appellate Court on the ground that same was not properly filed as the impugned decree sheet was not appended therewith‑‑‑Said judgment was assailed on the ground that since decree‑sheet was not prepared by the Trial Court at the time of filing of appeal, same could not be dismissed on that ground and that the time limit for filing the appeal had not begun‑‑‑Validity‑‑‑Appeal was preferred only against the decree and since no decree‑sheet had been prepared in the case, it could not be maintained that the time limit for filing of appeal had begun to run against the appellant‑‑‑Where at the time of filing an appeal, decree sheet was not prepared by the Trial Court, the Appellate Court should keep the appeal pending and direct the Trial Court to prepare the decree or direct the appellant to apply to the Trial Court for preparation thereof ‑‑‑Decree sheet having been brought on the record the appeal should have been heard on merits and no question would have arisen about appeal becoming time barred‑‑‑Appellate Court while dismissing appeal, having proceeded with material irregularity amounting to illegality in the exercise of its jurisdiction, its order was set aside by High Court in exercise of its revisional jurisdiction.

Sher Muhammad v. Muhammad Khan and another AIR 1924 Lah. 352 ref.

Ch. Anwar‑ul‑Haq Pannun for Petitioner.

Ch. Wali Muhammad for Respondents.

MLD 2001 LAHORE HIGH COURT LAHORE 1630 #

2001 M L D 1630

[Lahore]

Before Sayed Najam‑ul‑Hassan Kazmi, J

FAYYAZ‑UL‑HASSAN‑‑‑‑Petitioner

Versus

Messrs NATIONAL FEED (PVT.) LTD. ‑‑‑‑Respondent

Civil Revision No. 1246 of 1998, decided on 1st December, 1999.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑O. XXXVII, Rr. 2, 3 & 4‑‑‑Suit for recovery of money‑‑‑Leave to defend suit‑‑‑Defendant was granted leave to defend suit and to file written statement subject to his furnishing security within ten days, but the defendant had failed to furnish the security within stipulated period‑‑‑Order granting leave to defend suit, was rightly recalled by the Court and such order not suffering from any error of law, could not be interfered with.

Ch. Hafeez Ahmad for Petitioner.

Zafar Iqbal Bajwa for Respondent.

Date of hearing: 1st December, 1999.

MLD 2001 LAHORE HIGH COURT LAHORE 1633 #

2001 M L D 1633

[Lahore]

Before Maulvi Anwarul Haq, J

TAHIR ASLAM KHAN and others‑‑‑‑Petitioners

Versus

MERAJ DIN and others‑‑‑‑Respondents

Civil Revision No. 1755‑D of 1987, decided on 2nd October, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XVII, R.3‑‑‑Failure to produce evidence‑‑‑Dismissal of suit‑‑‑On the adjourned date of hearing evidence of the plaintiff being absent, the suit way dismissed by the Trial Court for failure to produce evidence ‑‑‑Validity‑‑Provisions of O. XVII, R.3, C.P.C. did not at all provide that in case evidence was absent on a date then the suit would be decided against the party by way of penalty, but according to said provision of law when the evidence was absent, the Court was to proceed with the suit‑‑‑Order dismissing suit passed by the Trial Court was not only illegal but was also without lawful authority and was rightly held to be so by Appellate Court below especially when the same did not spell out any fault attributed to the plaintiff which could visit with such a harsh penalty and that too not countenanced by law.

Atif Amin for Petitioners.

Nemo for Respondents.

Date of hearing: 27th October, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 1638 #

2001 M L D 1638

[Lahore]

Before Raja Muhammad Sabir, J

TAYYAB MEHMOOD CHATTHA and 3 others‑‑‑Petitioners

Versus

QUAID‑E‑AZAM UNIVERSITY, ISLAMABAD through VICE‑CHANCELLOR and 2 others‑‑‑Respondents

Writ Petition No. 1354 of 1996, heard on 23rd October, 1996.

Regulations Relating to Admission, Registration and Examination of Quaid‑e‑Azam University, 1992‑‑‑

‑‑‑‑Regln.7(c)‑‑‑Constitution of Pakistan (1973), Arts. 25 & 199‑‑Constitutional petition‑‑‑Educational institution‑‑‑Candidates failed in their respective courses despite availing two chances to appear in the examination were relieved by the University‑‑‑Validity‑‑‑Clause 7(c)(i)(iii) of Regulations Relating to Admission, Registration and Examination of Quid‑e‑Azam University, 1992 had clearly shown that a student who had failed twice, would cease to be student of the University‑‑‑Provisions of University Regulations did not provide extra chance of examination to such failed students‑‑‑Action of the University, in circumstances, was unexceptionable‑‑Contention of the students that they had been discriminated and the action of the University against them was violative of provisions of Art.25 of Constitution of Pakistan (1973) being without substance was repelled.

Miss Sakina Begum v. Selection Committee for Bolan Medical College 1995 SCMR 334; Chairman, Board of Intermediate and Secondary Education, Balochistan v. Maleha Ejaz and another 1995 SCMR 1060 and Muhammad Asadullah Khan v. Chairman, Department of Computer Science, Quaid‑e‑Azam University, Islamabad and others PLD 1994 Lah. 9 ref.

Malik Safdar Hussain for Petitioners.

Raja Shafqat Khan Abbasi for Respondents.

Date of hearing: 23rd October, 1996.

MLD 2001 LAHORE HIGH COURT LAHORE 1642 #

2001 M L D 1642

[Lahore]

Before Ch. Ijaz Ahmad, J

INAYAT ULLAH and 22 others‑‑‑Petitioners

Versus

MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB, LAHORE and 3 others‑‑‑Respondents

Writ Petition No.888 of 1986, heard on 1st February, 2001.

(a) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑Ss.161, 162 & 164‑‑‑Appeal, revision‑‑‑Limitation‑‑‑Duty of Revenue Authorities‑‑‑Collector granted proprietary rights in favour of occupancy tenants of land in dispute‑‑‑Authority being aggrieved of order of Collector filed four time‑barred appeals before Additional Commissioner (Revenue) who accepted the same despite being time‑barred and without condoning delay‑‑‑Occupancy tenants filed revision against judgment of Additional Commissioner, before Member, Board of Revenue, who despite noting that appeals filed before the Additional Commissioner were time‑barred and could not have been entertained, dismissed revisions filed by occupancy tenants‑‑‑Validity‑‑‑Provisions of West Pakistan Land Revenue Act, 1967 had prescribed period for filing appeal and revision against orders passed by the Authorities and highest Authority under the provisions of the Act must wear all the provisions of the Act on the sleeves of his robe‑‑‑Failure of the counsel to properly assist the forum was not a complete excuse in the matter‑‑‑Burden of making out sufficient cause for the delay in filing the appeals was on the Authority, but Member, Board of Revenue did not advert to that aspect of the case‑‑‑Question whether explanation of the Authority was fit to be believed was a question of fact which fell in the exclusive jurisdiction of the Revenue Authorities, but Member, Board of Revenue had not given any finding qua that fact‑‑‑Order of Member, Board of Revenue passed in revision was set aside and case was remanded to be decided afresh in accordance with law after providing parties opportunity of hearing.

Mst. Sardar Begum's case PLD 1972 Lah. 458; F.K. Abbasi's case 1985 CLC 1603; Tauqeer Ahmad Khan's case 1994 MLD 1866; Muhammad Iqbal's case PLD 1970 Lah. 614; Mst. Barkatey's case 1981 SCMR 259; Atta‑ur‑Rehman's case 1986 SCMR 598; Razaq's case 1995 CLC 57; Muhammad Irshad's case 1999 SCMR 1555; Allah Ditta's case 1969 SCMR 138 and Muhammad Sarwar's case PLD 1969 SC 278 ref.

(b) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art.4‑‑‑Right to be dealt with in accordance with law‑‑‑Duty of Courts and Tribunals‑‑‑Tribunals must decide the case in accordance with law as envisaged by Art. 4 of Constitution of Pakistan (1973).

Utility Stores Corporation's case PLD 1987 SC 447 ref.

Ch. Qadir Bakhsh for Petitioners.

Rana Nasrullah Khan for Respondents.

Date of hearing: 1st February, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1648 #

2001 M L D 1648

[Lahore]

Before Sayed Najam‑ul‑Hassan Kazmi, J

MUHAMMAD HAYAT and others‑‑‑Appellants

Versus

RASOOL BAKHSH and others‑‑‑‑Respondents

First Appeal from Order No.25 of 1996/BWP, decided on 16th June, 1999.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XLI, Rr. 23, 24, 25 & O. XLIII, R.1 (u)‑‑‑Remand order ‑‑‑Appeal"° from order‑‑‑Trial Court by a detailed judgment decreed the suit after recording and discussing entire evidence on all the important issues‑‑Appellate Court remanded the case on the grounds that the exhibit marks did not bear the seal and stamp of the Court and that an issue was not framed‑‑Validity‑‑‑Non‑sealing and stamping of exhibit mark was only a procedural irregularity which in no way could vitiate the proceedings or affect the admissibility of the document and thus, was no ground to remand the case‑‑Non‑framing of an issue in itself also could not be a reason for remand of the case‑‑‑Court of appeal under O.XLI, Rr. 24 & 25, C.P.C. could frame additional issue and if necessary could record further evidence and decide the appeal on merits instead of remanding the case‑‑‑Order remanding the case was set aside in circumstances.

Syed Muhammad Anwar Shah for Appellants.

Nemo for Respondents.

Date of hearing: 16th June, 1999.

MLD 2001 LAHORE HIGH COURT LAHORE 1650 #

2001 M L D 1650

[Lahore]

Before Nasira Iqbal, J

MUHAMMAD TAUQEER‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others‑‑‑Respondents

Writ Petition No.8268 of 2001, decided on 30th May, 2001.

West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 5 & Sched.‑‑‑Maintenance‑‑‑Entitlement‑‑‑Plea of disobedience of wife‑‑‑Proof‑‑‑Wife lived with her husband abroad as long as she had visa and thereafter she returned to Pakistan and was living with her parents at the place where she had a job‑‑‑Husband contended that wife was not entitled to maintenance on account of her refusal to stay with his parents in Pakistan and her refusal amounted to her disobedience‑‑‑Validity‑‑‑If the husband had arranged for her wife to live with him and she had refused to do so, then she could be considered to be disobedient wife and disentitled to the maintenance allowance‑‑‑Wife, in circumstances, could not be considered to be disobedient merely do the ground that she did not reside with the parents of her husband in Pakistan after he sent her back from abroad where he was gainfully employed‑‑‑Wife was not under obligation to live with the parents of her husband‑‑‑Husband who had second wife though with permission of his first wife was bound to provide separate accommodation to his first wife and she could not be compelled to live with others‑‑‑Wife was willing to live with her husband and perform conjugal duties if the husband could provide her proper arrangements and accommodation but he having failed to do so, the wife was entitled to maintenance allowances.

Ahmed Ali v. Sabha Khatun Bibi and others PLD 1952 Dacca 385; Naik Muhammad v. Bagh Ali PLD 1987 Lah. 208; Mst. Sharifan Bibi and another v. Ghulam Hussain and others 1986 SCMR 1466; M. Sabbar Idrees and others v. Clare Benedicta Canville 1986 SCMR 1967; Muhammad Sadiq Hussain v. Mst. Khurshid Fatima and another 1978 SCMR 130 and Abdul Latif v. Surat Khatoon and others 1988 CLC 1560 ref.

Pervaiz Inayat Malik for Petitioner.

Ch. Muhammad Saleem alongwith Muhammad Tanvir Akbar for Respondents Nos.3 to 5.

MLD 2001 LAHORE HIGH COURT LAHORE 1654 #

2001 M L D 1654

[Lahore]

Before Maulvi Anwarul Haq, J

SHAFQAT and 4 others‑‑‑Appellants

Versus

MUHAMMAD DAUD and another‑‑‑‑Respondents

Regular Second Appeal No.8 of 1997, heard on 6th April, 2000.

West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S.42‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Suit for specific performance of agreement‑‑‑Agreement sought to be performed was akin to a clog on the equity of redemption and was conditional and nothing was on record to show that terms of agreement were met‑‑‑Where agreement had neither created nor extinguished any title, no mutation could be entered on basis of the same‑‑‑Suit on basis of said agreement was not maintainable

Sahibzada Mehboob Ali Khan for Appellants.

Zafar Khan Seyal for Respondent No. l .

Nemo for Respondent No.2.

Date of hearing: 6th April, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 1657 #

2001 M L D 1657

[Lahore]

Before Ch. Ijaz Ahmad, J

Mrs. FARHA NASIR‑‑‑‑Petitioner

Versus

PAKISTAN through Secretary to Government, Ministry of Economics and Commercial Affairs, Islamabad and 2 others‑‑‑‑Respondents

Writ Petitions Nos.3660, 3630 and 3528 of 2000, decided on 9th March, 2001.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Enforcement of contract through Constitutional petition was not permissible.

Mumtaz Masood's case 1994 SCMR 2287; Chandpur Mill's case PLD 1958 SC 267 and Messrs Momin Motor Companies' case PLD 1962 SC 1‑08 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.203‑G‑‑‑IritereSL/Ribs‑‑‑Interest/Riba is un‑Islamic, but past and closed transactions, are not to be re‑opened‑‑‑High Court in view of Art.203‑G of Constitution of Pakistan (1973) had no authority to determine that charge of interest/Riba was un‑Islamic.

Mehmood‑ur‑Rehman's case PLD 1992 FSC 1 and Dr. Muhammad Aslam Khaki's case PLD 2000 SC 225 ref.

‑‑‑‑Order of High Court admitting Constitutional petition or leave granting order by Supreme Court was not a judgment.

Mirza Adam Khan's case PLD 1975 SC 9 ref.

(d) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S.9‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Alternate remedy‑‑‑Maintainability‑‑‑Petitioners having alternative remedies to file a suit against the respondents under S.9 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, Constitutional petition was not maintainable.

Muhammad Ismail's case PLD 1966 SC 246 and Muzaffar Khan's case PLD 1959 SC (Pak.) 9 ref. '

Ch. Inayat Ullah for Petitioner.

Date of hearing: 9th March, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1660 #

2001 M L D 1660

[Lahore]

Before Ghulam Mehmood Qureshi, J

CHIEF ADMINISTRATOR OF AUQAF, GOVERNMENT OF PUNJAB, AUQAF DEPARTMENT and another‑‑‑Petitioners

versus

CANTONMENT BOARD, BAHAWALPUR through Officer Commanding and 2 others‑‑‑Respondents

Writ Petition No. 1083 of 1988/BWP, decided on 22nd February, 2001.

Cantonments Act (II of 1924)‑‑‑

‑‑‑‑S. 99‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Imposition of property tax by Cantonment Board on the building rented out by Auqaf Department for commercial purposes‑‑‑Building in question rented out by Auqaf Department for commercial purposes being not exempt from imposition of property tax under provisions of the Cantonments Act, 1924, Cantonment Board had rightly issued notice to the Department directing to pay outstanding amount of property tax in respect of the property.

Shamsher Iqbal Chughtai for Petitioners.

Mian Ahmad Nadeem Arshad for Respondents Nos. 1 and 2.

Date of hearing: 22nd February, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1663 #

2001 M L D 1663

[Lahore]

Before Riaz Kayani and Bashir A. Mujahid, JJ

HAMID---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 149 of 1996, heard on 14thfMay, 2001.

Penal Code (XLV of 1860)'

----Ss. 302/324/148/149/109---Appreciation of evidence---Accused who was nominated in the promptly recorded F.I.R. was previously known to the complainant and other prosecution witnesses, and there was no reason for his false implication/mistaken identity especially when electric bulb was on at the time of occurrence---Accused was attributed fatal injury to the deceased but co-accused except one were not attributed any injury to the deceased--Case of accused was distinguishable from the co-accused and the Trial Court giving detailed reasons had rightly acquitted co-accused giving them benefit of doubt---Prosecution had established its case against the accused by ocular account narrated by the complainant and prosecution witnesses when all stood the test of lengthy cross-examination and. their statements were confidence inspiring---Mere relationship of prosecution witnesses with the deceased was not enough to discredit their testimony when otherwise they were material and truthful witnesses and their evidence had been corroborated by medical evidence as well as by the motive of the occurrence---Conviction recorded by the Trial Court against the accused, could not be interfered with.

Syed Aftab Sherazi for Appellant

Sadaqat Mahmood, Asstt. A.-G. for the State.

Date of hearing: 14th May, 2001

MLD 2001 LAHORE HIGH COURT LAHORE 1667 #

2001 M L D 1667

[Lahore]

Before Naeemullah Khan Sherwani, J

BILAL and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos. 1063‑B and 672‑B of 2000, decided on 9th June, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence ‑‑‑Qatl‑i‑Amd‑‑‑Imperative upon the prosecution to prove three ingredients to establish Qatl‑e‑Amd that death had taken place; that death was due to violence and that violence was to be assigned to the individuals indicated for the crime of murder.

(b) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/148/149‑‑‑Bail, grant of‑‑‑No external marks of injuries were observed by the examining doctor on the body of the deceased and the prosecution could not prove that the death of deceased had occurred due to violence attributed to the accused‑‑‑Principal accused were found not connected with the commission of the crime‑‑‑Case against the accused being of further inquiry, the accused were entitled to the grant of bail.

Abdul Aziz Khan Niazi for Petitioners.

Qazi Saddar‑ud‑Din Alvi for Petitioners (in Criminal Miscellaneous No.672‑B of 2000).

Qazi Yaqoob Ayyaz Siddiqui for the State.

MLD 2001 LAHORE HIGH COURT LAHORE 1675 #

2001 M L D 1675

[Lahore]

Before Sheikh Abdur Razzaq, J

BASHIR AHMED ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 25 of 1998, decided on 14th November, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Motive ascribed to the accused was that he had committed the murder of his wife because of hot words exchanged between them‑‑‑Such motive on the face of it did not appeal to reason and was rightly not believed‑‑‑Oral account of occurrence as deposed by the complainant and other prosecution witness did not appeal to the mind of a prudent man‑‑‑Had the accused inflicted hatchet blow on the person of the deceased, in the presence of the complainant, he, being a real father of the deceased, could not have acted like a silent spectator‑‑‑Seat of injuries on the forehead and back of head of the deceased had shown that those could not be caused if the deceased had been attacked as suggested by the prosecution‑‑Time that elapsed between death and post‑mortem examination also lent support to the defence version rather than the prosecution‑‑‑Evidence of recovery of hatchet after 39 days of incident did not come to the rescue of the prosecution‑‑‑Prosecution evidence, being not up to the mark, reliance had to be placed on defence version and that too in totality‑‑‑Assertion that occurrence had not taken place as disclosed in the F.I.R., but as claimed by the accused in his statement under S.342, Cr.P.C. stating that he had committed the murder of his wife under the impulse of sudden and grave provocation/Ghairat when he saw her in a compromising position with a person inside the room, had been proved‑‑‑Conviction of the accused under S.302, P.P.C., in circumstances, was altered to under S.302(c), P.P.C. and his sentence reduced substantially.

Muhammad Yaqoob v. The State 2000 SCMR 1827; Nazir and another v. The State 2000 PCr.LJ 175; Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 and Muhammad Ishaque alias Baig v. The State 1998 PCr.LJ 1110 ref.

Muhammad Akhtar Qureshi for Appellant.

Atta Muhammad Baloch for the State.

Date of hearing: 14th November, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 1680 #

2001 M L D 1680

[Lahore]

Before Bashir A. Mujahid, J

YOUSAF IQBAL‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 2140‑B of 2000, decided on 9th October, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Prevention of Corruption Act (II of 1947), S,5(2)‑‑‑Penal Code (XLV of 1860), S.161‑‑‑Bail, grant of‑‑‑Accused being an employee of WAPDA, Anti‑Corruption Establishment had no jurisdiction to register and investigate the case‑‑‑Record of the case had been sent to Federal Investigating Agency for its investigation as per observations of the High Court‑‑‑Complainant from whom amount was allegedly received by the accused as illegal gratification had exonerated the accused from the allegation‑‑‑Was not clear as to when the investigation in case would be completed by the Authority and what would be the result of that investigation‑‑‑Bail was granted to the accused in circumstances.

Nishat Ahmad Siddiqui for Petitioner.

Muhammad Anwar for the State.

MLD 2001 LAHORE HIGH COURT LAHORE 1685 #

2001 M LD 1685

[Lahore]

Before Iftikhar Hussain Chaudhry J

ASHFAQ HUSSAIN ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 6314/B of 2000, decided on 8th November, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss. 489‑B & 489‑C‑‑‑Bail, grant of‑‑‑Allegations against the accused were two‑fold; firstly that he, as a Moharrar, had paid salaries to the employees and the currency notes given to the employees contained numerous counterfeit notes; secondly that he and his co‑accused led to recovery of counterfeit currency notes‑‑‑Second allegation prima facie would constitute offence under S.489‑C, P.P.C. which was bailable ‑‑‑Case under 5.489‑B, P.P.C. which was non‑bailable, though prima facie had been made against the accused, but no further investigation was being undertaken by the police and no effort had been made by the police to identify the person from whom the accused had purchased the currency notes‑‑‑Was not ascertained as to who was the particular accused who had purchased the currency notes‑‑‑Bail was granted to the accused in circumstances.

Inayat Ullah Cheema with Ch. Anwar‑ul‑Haq Pannu for Petitioner.

Ms. Rukhsana Tabassum for the State.

2001 M L D 1703

[Lahore]

Before Najmul Hassan Kazmi, J

KARAM ALI ‑‑‑Petitioner

Versus

FAQIR BAKHSH‑‑‑Respondent

Civil Revision No. 576 of 1994/BWP, decided on 15th June, 1999.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VI, R.17,& S.152‑‑‑Specific Relief Act (I of 1877), S.8‑‑‑Suit for possession‑‑‑Amendment of plaint and decree sheet‑‑‑Scope‑‑‑During pendency of appeal against judgment and decree passed by the Trial Court, the plaintiffs filed application under O.VI. R.17, C.P.C. for correction of the plaint and also the decree‑sheet by way of amendment which application was allowed by the Appellate Court‑‑‑Validity‑‑‑Court was competent to 'allow amendment in the decree‑sheet and also in the plaint by virtue of 5.152, C.P.C. even if the suit had finally been disposed of‑‑‑Delay in filing application to seek amendment would not, by itself, be a ground to refuse said amendment‑‑‑Amendment was always granted if it was necessary to decide the real matter in issue or if by allowing amendment in the plaint real matter could be settled once for all‑‑‑If the amendment in the plaint was with regard to change of "Killa Number" of the property in dispute that would not result in changing the nature of the suit or the character of the plaint‑‑‑Order passed by Appellate Court not suffering from any jurisdictional error or legal infirmity, could not be interfered with.

Manzoor Hussain and 9 others v. Malik Karam Khan and 2 others 1991 SCMR 2451; PLD 1985 SC 345; PLD 1973 Lah. 513 and PLD 1973 Lah. 506 ref.

Syed Muhammad Anwar Shah for Petitioner.

Nemo for Respondent.

Date of hearing: 15th June, 1999.

MLD 2001 LAHORE HIGH COURT LAHORE 1705 #

2001 P Cr. L J 1358

[Lahore]

Before Riaz Kayani, J

JAMSHED IQBAL‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.898 of 2000; heard on 25th January, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑-Appreciation of evidence‑‑‑No witness was found present at the scene of occurrence‑‑‑Incident had not taken place at the site pointed out by the prosecution witnesses‑‑‑Motive set up by the prosecution was not proved‑ ‑Occurrence having taken place in the dark hours of the night without having been witnessed by anybody, complainant on account of enmity between the parties seemed to have nominated the accused in the F.I.R. after deliberation as the main perpetrator of the crime‑‑‑Defence had created many dents in the prosecution case‑‑‑Accused was acquitted in circumstances.

Malik Noor Muhammad Awan for Appellant.

Muhammad Azam for the State

Date of hearing: 25th January, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1721 #

2001 M LD 1721

[Lahore]

Before M Naeemullah Khan Sherwani and Bashir A. Mujahid, JJ

GHAUS BAKHSH-‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 316 of 1999, decided on 12th January; 2000.

West Pakistan Arms Ordinance (XX of 1965)‑‑‑

‑‑‑‑S., 13‑‑‑Appreciation of evidence‑‑‑Both the eye witnesses belonged to the, tribe with whom the accused allegedly had grudge, grouse and malice ‑‑Case against the accused was not proved by independent and disinterested witnesses and it was riot impossible for the Investigating Officer to have called the most independent. and the disinterested respectable persons of the locality‑‑‑Prosecution story appeared to be absurd, ridiculous, fantastic, unnatural and improbable‑‑‑Statements of both the eye‑witnesses did not coincide with each other as regards time, place of recovery and the place from where the prosecution witnesses joined the Investigating Officer‑‑Prosecution story ceased to be trustworthy‑‑‑Prosecution witnesses being unreliable, it would be highly dangerous to rely upon their statements in a criminal case‑‑‑Prosecution version suffered from serious defects which struck at the very root of the case‑‑‑Conviction and sentence awarded to the accused by the Trial Court was set aside and the accused was acquitted.

Azim‑ul‑Haq Pirzada assisted by Zafarullah Khan Khakwani (appointed by the Court) for Appellant.

Sh. Muhammad Raheem for the State.

Date of hearing: 12th January, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 1735 #

2001 M L D 1735

[Lahore]

Before Mian Allah Nawaz, C.J., Tanvir Ahmad Khan and Mian Nazir Akhtar, JJ

IMRAN RAZA KHAN, ADVOCATE‑‑‑Petitioner

versus

S.S.P., LAHORE and 2 others‑‑‑Respondents

Criminal Miscellaneous No.727/H and Constitutional Petitions Nos. 1004, 1005 and 10805 of 2000, decided on 27th June, 2000.

(a) Anti‑Terrorism Act (XXVII of 1997)‑‑‑

‑‑‑‑Ss. 19, 6 & Sched.‑‑‑Powers of Anti‑Terrorism Court‑‑‑Scope‑‑‑Private complaint, entertainment of‑‑‑Anti‑Terrorism Court has power to entertain a private complaint directly if it discloses the commission of offence falling within the ambit of S.6 of the Anti‑Terrorism Act, 1997 and its Schedule.

Riffat Hayat v. Judge, Special Court for Suppression of Terrorist

Activities, Lahore and another 1994 SCMR 2177 and Bago and 2 others v. The State 1996 PCr.LJ 1818 rel.

(b) Anti‑Terrorism Act (XXVII of 1997)‑‑‑

‑‑‑‑S.19‑‑‑Criminal Procedure Code (V of 1898), S.100‑‑‑Powers of Anti-Terrorism Court‑‑‑Scope‑‑‑Search for persons wrongfully confined ‑‑‑Anti-Terrorism Court has no power or jurisdiction to issue search warrants under S.100, Cr.P.C.

Mst. Kausar Parveen v. Ahmad Ali Zafar, Judicial Magistrate, Kabirwala, District Khanewal PLD 1997 Lah. 208 ref.

‑‑‑‑S.19‑‑‑Criminal Procedure Code (V of 1898), Ss. 202 & 100‑‑Constitution of Pakistan (1973), Art. 199‑‑,‑Constitutional petition‑‑‑Issuance of search warrants by the Special Court‑‑‑Validity‑‑‑Trial Court under S.202, Cr.P.C. could proceed and make an attempt to make further inquiry but it had no power to proceed under 5.100, Cr.P.C. which was a quasi‑ministerial power and not a judicial power but a quasi judicial power‑‑‑Impugned order passed by the Anti‑Terrorsim Court was consequently declared to have been passed without jurisdiction and of no legal consequence.

The State v. Muhammad Usman and 6 others PLD 1975 Kar. 190; Abdul Haleem v. Raja Qurban Hussain and others PLD 1965 (W.P.) Lah. 570; Gopal Das and others v. State of Assam and others‑AIR 1961 SC 986; Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee AIR 1950 Cal. 437; R.R. Chari v. State of Uttar Pradesh 1951 SCR 312; AIR 1951 SC 207 and Naraiyandas Bhagwandas Madhava v. State of West Bengal (1960)1 SCR 93: AIR 1959 SC 1118 ref.

(d) Anti‑Terrorism Act (XXVH of 1997)‑‑‑

‑‑‑‑S.19‑‑‑Penal Code (XLV of 1860), Ss.365/186 & 78‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Quashing of F.I.R.‑‑Any act done in compliance with the judgment or order of the Court while such judgment or order remained in force, according to S.78, P.P.C., was not an offence even if the same was without jurisdiction‑‑‑Bailiffs had conducted the raid in pursuance of the order passed by the Anti‑Terrorism Court acting in good faith and believing that the Court had such jurisdiction‑‑‑No allegation of any malice or collusion with any party had been made against the Bailiffs‑‑‑Registration of the impugned F.I.R. against the Bailiffs and the recovered persons was, therefore, declared to be without any lawful authority having no legal consequence and the same was quashed accordingly.

(e) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.491‑‑‑Constitution of Pakistan (1973), Arts.4, 9 & 10‑‑‑Habeas corpus petition‑‑‑S.H.O. had investigated the case in accordance with the directions of superior Police Officers and found a number of very high officials guilty being involved in a massive scandal‑‑‑Both parties had competing claims and there were two versions, bistort facts, could not be examined at such stage‑‑‑Trial Court could examine the allegation of illegal detention of the detenu and proceed against any delinquent officials including the S.H.O.‑‑Every one was to be given equal protection of his body and his movement and nobody could be arrested and kept in confinement by the police against the Constitutional mandate as embodied in Arts. 4, 9 & 10 of the Constitution‑‑‑Trial Court was directed to examine the matter earnestly‑‑Petition was disposed of accordingly.

(f) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.204‑‑‑Contempt of Court Act (LXIV of 1976), Ss. 3 & 4‑‑‑Contempt of Court‑‑‑Incident in which the Chief Justice was confronted with unpleasant behaviour had come to an end with a happy note‑‑‑Chief Justice had exercised judicial restraint and proceeded to constitute a Full Bench for hearing the said causes, he did not choose to proceed under Art. 204 of the Constitution read with Ss. 3 & 4 of the Contempt of Court Act, 1976 and left the matter to the collective conscience of the Members of the Bar‑‑‑Advocate concerned on the next date of hearing before the Full Bench expressed his unconditional regret stating that he was sorry for the aforesaid incident and such regrets seemed to have flowed from his heart‑‑‑President, High Court Bar Association, Vice‑Chairman of Pakistan Bar Council and the Chairman, Executive Committee, Punjab Bar Council, had also expressed the same sentiments unequivocally stating that if any matter was referred to them they would deal with it strictly in accordance with law‑‑‑Bench and the Bar being two indispensable wheels of the chariot of administration of justice were supplementary and complementary to the institutional system of adversarial hearing‑‑‑Violent language, dictative propensities on the part of an Advocate and importance during the course of hearing of a cause on the part of the Judge were alien to the system of administration of justice which was a substantive methodology for settling the dispute between the parties in a peaceful manner and through impartial procedure by an independent Judiciary‑‑‑Administration of justice substituted the flagrant course of armed encounter and blood feud and use of the physical force by the parties for settling their disputes‑‑‑Such system was scintillating embellishment of civilized behaviour and such objectives were achieved through strong and independent Judiciary‑‑‑Concept of weakness or imperious behaviour was not known to said system‑‑‑Source of system lay upon humility and potence on the part of the Judiciary‑‑‑Full Bench, in view of the sentiments exhibited by the Bar, its representatives and .even the Advocate concerned did not proceed further in the matter being content to record that the incident had come to an end with the active cooperation of the Bench and the Bar.

Dr. Abdul Basit assisted by Rana Muhammad Arshad with Zafar Mahmood, Hamaad Raza Naqvi, Imran Raza, Azar Latif, Raja Shaqfat Abbasi, Rashid Murtaza Qureshi and Qazi Muhammad Saleem for Petitioner.

Ch. Abdur Razzaq for Zafar Mahmood Ch., Aftab Ahmad Bajwa for Lahore Bar Association.

Syed Zahid Hussain Bokhari for Punjab Bar Council.

Syed Shabbar Raza Rizvi for S.H.O. (Abbas) .

Syed Kaleem Abid Khurshid, President High MBar Association.

Maqbul Elahi Malik, A.‑G. with Ms. Yasmin Sehgal, Asstt. A.‑G.

Dates of hearing: 6th, 7th, 8th, 9th, 13th and 19 June, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 1758 #

2001 M L D 1758

[Lahore]

Before Bashir A. Mujahid, J

SAJID MAHMOOD‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.7082‑B of 2000, decided on 12th January, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.337‑A(iii)‑‑‑Bail, grant of‑‑Accused was no more required for investigation ‑‑‑Challan though had been submitted, but the trial had yet not commenced and there was no likelihood of its early conclusion‑‑‑Conduct of the injured/complainant for non-appearance for re‑examination before the Medical Board duly constituted, had brought the case of the accused under ambit of further inquiry‑‑‑Accused was admitted to bail in circumstances.

Nazar Abbas Syed for Petitioner.

Abdul Hamid Iftikhar for the State.

MLD 2001 LAHORE HIGH COURT LAHORE 1763 #

2001 M L D 1763

[Lahore]

Before Muhammad Nawaz Abbasi, J

SULTAN AHMAD‑‑‑Petitioner

versus

S.H.O. and others‑‑‑Respondents

Criminal Miscellaneous Nos.280‑Q to 283‑Q of 2000, decided on 29th November, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.561‑A‑‑‑Penal Code (XLV of 1860), Ss. 324/394, 392 & 399/420‑‑Petition for quashing of cases‑‑‑Grievance of the petitioner/accused was that he had been involved in false cases by the police at the instance of his opponent either through supplementary statement or through the First Information Reports, lodged with considerable unexplained delay‑‑Grievance of the petitioner needed proper probe through independent source and igh Court could not undertake the exercise of inquiry into the matter and it was also not possible to quash F.I.Rs. on the basis of factual controversy‑‑‑High Court directed that Senior Superintendent of Police would get the matter enquired from a Senior Officer of the rank of Superintendent of Police and if allegations of false implication of the accused and misuse of powers by the local police as alleged by the petitioners, were found correct, concerned police officials should be proceeded against departmentally.

Shahid Hussain Kadri for Petitioner.

Ch. Ijaz Ahmad, Addl. A.‑G. for Respondents.

MLD 2001 LAHORE HIGH COURT LAHORE 1769 #

2001 M L D 1769

[Lahore]

Before Riaz Kayani, J

SHAUKAT ALI ‑‑‑Petitioner

versus

S.H.O.‑‑‑Respondent

Criminal Miscellaneous No. 177‑H of 2001, decided on 8th February, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 491‑‑‑Habeas corpus petition‑‑‑Report of the Bailiff who raided the police station showed that neither any case was registered against the detenu nor he was produced before any competent Court of law‑‑‑Detenu who was got medically examined was proved to have been severely tortured by the police‑‑‑Police officers/officials had no power to torture the undertrial prisoner or detenu detained in an illegal and improper manner‑‑‑Detention of the detenu was found illegal and police officers responsible for such illegal detention and torture of the detenu were heavily fined and criminal case was also ordered to be registered against said police officers.

Petitioner in person.

Nasim Sabir Chaudhry, Addl. A.‑G.

Tanvir Rehmat Bailiff alongwith the detenu.

MLD 2001 LAHORE HIGH COURT LAHORE 1773 #

2001 M L D 1773

[Lahore]

Before Khawaja Muhammad Sharif, J

YARA‑‑‑Petitioner

versus

S. H .O.‑‑‑Respondent

Criminal Miscellaneous No. 1749‑H of 1999, decided on 27th October, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 491‑‑‑Habeas corpus petition‑‑‑Detenu was not found to be named as an accused in two F.I.Rs. as alleged by the police‑‑‑Name of detenu had been mentioned in the case diaries prepared by two Police Officials simply to save the S.H.O. from criminal proceedings against him‑‑‑Files/diaries were not shown to the Bailiff despite his repeated requests which had shown the mala fides of the police‑‑‑Said Police Officials were liable to be prosecuted under Ss.109, 167 & 218, P.P.C.‑‑‑Police officials were ordered to be prosecuted accordingly.

N.A. Butt for Petitioner.

Shaukat Masood, S.H.O., Muhammad Ashraf S.‑I. and Muhammad Zafarullah Khan, A.S.‑I. with Tanvir Rehman Bailiff.

MLD 2001 LAHORE HIGH COURT LAHORE 1775 #

2001 M L D 1775

[Lahore]

Before Sheikh Abdur Razzaq, J

FAYYAZ AHMAD and others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1122‑B of 2000/BWP, decided on 7th December, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/324/337‑A(ii)/337‑F(v)/34, 306 & 308‑‑‑Bail, grant of‑‑‑None of the accused persons except one had been assigned the role of causing injury to the deceased, but had been attributed the role of causing injuries to 4he prosecution witnesses‑‑‑Injuries attributed to one of the accused, who was stated to be a minor, had been declared simple and the injuries attributed to other accused also did not fall within the prohibitory clause of S.497, Cr.P.C.‑‑‑Accused were admitted to bail in circumstances.

Muhammad Shafi and others v. The State 1990 PCr.LJ 929; Zafar Iqbal v. The State 1999 PCr.LJ 1840; Muhammad Shafi v. Hakam Ali 1978 SCMR 346; Muhammad Sudheer v. State 1998 MLD 1994; Farzand Ali v. Taj and others 2000 SCMR 1854; Atta Ullah and 3 others v. The State and another 1999 SCMR 1320; Muhammad Akbar and 4 others v. The State and another 1978 SCMR land Jazib Khan and 3 others v. The State 1996 MLD 166 ref.

Mian Muhammad Tayyab Wattoo for Petitioners.

M.A. Farazi for the State.

MLD 2001 LAHORE HIGH COURT LAHORE 1782 #

2001 M L D 1782

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD TAHIR IQBAL‑‑‑Petitioner

versus

S. H. O. and others‑‑‑Respondents

Criminal Miscellaneous No. 131/H of 2001, decided on 27th February 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.491‑‑‑Habeas corpus petition ‑‑‑Detenus neither were nominated accused in any criminal case nor they were required in connection with any other criminal case registered in the police station concerned ‑‑‑Detenus were set at liberty‑‑‑Detenus who were confined in a private camp by Police and were tortured‑‑‑Even if the detenus were willing to pardon the accused Police functionaries, 'but same was irrelevant because the violation of the law by said Police functionaries had to be visited with the consequences incidental to their actions‑‑‑Criminal case was ordered to be registered against the police functionaries.

Ch. Zahoor Nasir for Petitioner.

MLD 2001 LAHORE HIGH COURT LAHORE 1796 #

2001 M L D 1796

[Lahore]

Before Mian Saqib Nisar, J

Mst. IQBAL BEGUM‑‑‑Petitioner

versus

DISTRICT RETURNING OFFICER/DISTRICT AND SESSIONS JUDGE, OKARA and another‑‑‑Respondents

Writ Petition No. 10332 of 2001, decided on 13th June, 2001.

Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑R.16‑‑‑Nomination papers, rejection of‑‑‑Nomination papers of the candidate were rejected by the Returning Officer on the ground that those were not signed by the candidate or by the proposer or seconderer‑‑‑Defect on basis of which nomination papers were rejected was curable and Returning Officer or Appellate Authority should have allowed the candidate to sign the affidavit and the nomination papers ‑‑‑Order rejecting the nomination papers was set aside with direction to the Returning Officer to allot symbol to the candidate.

Ghulam Nabi v. Khuda Bakhsh and 2 others PLD 1984 Kar. 245 and Writ Petition No. 7676 of 2001 (unreported) ref.

Syed Shabbir Raza Rizvi for Petitioner.

Naseem Sabir Chaudhary, Addl. A.G. for Respondents.

MLD 2001 LAHORE HIGH COURT LAHORE 1797 #

2001 M L D 1797

[Lahore]

Before Muhammad Akhtar Shabbir, J

ABDUL GHAFOOR and others‑‑‑Petitioners

versus

M.B.R. and others‑‑‑Respondents

Constitutional Petition No. 2757 of 1998, decided on 2nd December, 1999.

(a) Land Reforms Regulation, 1972 (M.L.R. 115)‑‑‑

‑‑‑‑Para. 25‑‑‑Suit for pre‑emption ‑‑‑Superior right of pre‑emption ‑‑‑Pre-emptors joining with the person not having superior right to pre‑empt‑‑Effect‑‑‑Superior right of pre‑emption being available only to the persons who were tenants or cultivators of the pre‑empted land‑‑‑One of the pre-emptors who was not the tenant of the suit land, could not exercise the right of pre‑emption ‑‑‑If a person having a superior right of pre‑emption had associated with him a stranger, he would lose his own right of pre‑emption‑‑Obligation of the plaintiffs was to establish their superior right of preemption.

Faqir Muhammad v. Province of Punjab PLD 1993 Lah. 439; Muhammad Khan v. Mst. Ghulam Fatimah 1991 SCMR 970; Adam Jee Insurance Company v. Pakistan 1993 SCMR 1798; Ch. Muhammad Ismail v. Fazal Zada, Civil Judge PLD 1996 SC 246;Muhammad Younas Khan v. Government of N.W.F.P. 1993 SCMR 618 and Muhammad Sadiq v. Muhammad Sakhi PLD 1989 SC 755 ref.

(b) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S.164‑‑‑Land Reforms Regulation, 1972 (M.L.R. 115), para. 25‑‑‑Civil Procedure Code (V of 1908), O.XXII, R.3‑‑‑Revision‑‑‑Death of one of the petitioners during pendency .of revision‑‑‑Effect‑‑‑During pendency of revision one of the petitioners had died and Member, Board of Revenue passed order in revision without impleading legal representatives of the deceased‑‑‑Order was passed after the remand of the case by the High Court while previous orders were passed by the Board of Revenue when petitioner was alive as he died after the remand of the case by the High Court‑‑‑Other petitioner was obliged to bring on record the legal representatives of the deceased petitioner and it was the duty of the legal representatives of the deceased to come forward and become a party in revision petition‑‑‑Other petitioner being son of the deceased was also one of the legal heirs of the deceased, and it could not be said that the order was passed without impleading the legal representatives of the deceased‑‑‑Common interest of deceased and other petitioner existed and other petitioner who was son of the deceased having contested the revision, no prejudice was caused to him and to other legal representatives of the deceased by the impugned order‑‑‑Death of any of the petitioners would not abate the revision and the order could be passed even without impleading the legal representatives of the deceased in circumstances.

‑‑‑‑Para. 25‑‑‑Suit for pre‑emption ‑‑‑Partial pre‑emption ‑‑‑Principle of‑‑Plaintiffs were bound to include all the Khasra Numbers of the suit land in the suit and if any of the Khasra numbers was not included in the suit it was their fault and not the fault of the defendants/vendees or the Court‑‑‑If the pre‑emptors missed some portion of the property to pre‑empt, the suit would be hit by the principle of partial pre‑emption.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Alternate remedy‑‑‑Constitutional ‑jurisdiction of High Court could only be invoked against the order passed by Court below in exercise of excess of its jurisdiction and not against the wrong exercise of jurisdiction‑‑Constitutional petition was not maintainable against the order passed in revision and also when alternate remedy was available to the petitioner.

Muhammad Khan v. Fatimah 1991 SCMR 970 ref.

Mian Muhammad Jamal for Petitioners.

Mian Shamsul Haq Ansari for Respondents Nos.3 to 5.

Akhtar Masood Ahmad for Respondents Nos. 1 and 2.

MLD 2001 LAHORE HIGH COURT LAHORE 1816 #

2001 M L D 1816

[Lahore]

Before Tanvir Ahmad Khan, J

MUHAMMAD ARIF‑‑‑Petitioner

Versus

BANKING COURT, SIALKOT and another‑‑‑Respondents

Constitutional Petition No. 14423 of 2000, decided on 25th July, 2000.

Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑Ss. 9, 14, 15, 16 & 18‑‑‑Suit for recovery of amount‑‑‑Recovery proceedings‑‑‑Where suit was decreed, but decree remained unsatisfied despite passage of considerable period, recovery proceedings could not only be restricted to mortgaged property‑‑‑Functionaries had got ample jurisdiction to proceed against the defendant/judgment‑debtor in the manner provided under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997.

Ijaz Ahmad Awan for Petitioner.

MLD 2001 LAHORE HIGH COURT LAHORE 1821 #

2001 M L D 1821

[Lahore]

Before Bashir A. Mujahid, J

Messrs GULZAR & COMPANY, EX‑CONTRACTOR‑‑‑Petitioner

Versus

TOWN COMMITTEE, KHAIRPUR TAMEWALI through Administrator and‑ another‑‑‑Respondents

Writ Petition No. 400 of 1998/BWP, decided on 26th September, 2000.

Punjab Local Government Ordinance (VI of 1979)‑‑‑

‑‑‑‑S. 134(2)(c)‑‑‑Constitution of Pakistan (1973), Art‑199 ‑‑‑Constitutional petition ‑‑‑Ejectment of lessee from shop‑‑‑Petitioner, who was ejected from the shop had to pay outstanding amount of rent and had denied his liability to pay the rent and had ensured that if the Administrator would not accept his plea, he would make payment subject to availing the remedy of appeal‑‑Authority stated that the petitioner could approach the Administrator subject to making payment of amount of rent within a period of one month and the petitioner agreed to the same‑‑‑High Court directed that no coercive measures would be adopted against the petitioner for one month for recovery of the amount.

M. Shamshir lqbal Chughtai for Petitioner.

Ch. Shafi M. Tariq for Respondents.

Salim Nawaz Abbasi, A.A.G.

MLD 2001 LAHORE HIGH COURT LAHORE 1824 #

2001 M L D 1824

[Lahore]

Before Mian Allah Nawaz, J

Mst. RAFIQAN BEGUM ‑‑‑ Petitioner

Versus

ABDUL GHANI and others‑‑‑Respondents

Civil Revision No. 1661 of 1999, decided on 22nd October, 1999.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 54‑‑‑Civil Procedure Code (V of 1908), OXXXIX, Rr.I & 2‑‑‑Suit for permanent injunction‑‑‑Temporary injunction, grant of‑‑‑Application for grant of temporary injunction was allowed by the Trial Court, but Appellate Court on the basis of evidence on record, set aside the order of Trial Court‑‑ Decision of Appellate Court being eminently correct, just and not suffering from any error, could not be interfered with by the High Court in exercise of revisional jurisdiction.

Zahid Hussain Khan for Petitioner.

2001 M L D 1873

[Lahore]

Before Karamat Nazir Bhandari, J

USMAN SAIF‑‑‑Petitioner

Versus

UNIVERSITY OF THE PUNJAB, LAHORE through Vice‑Chancellor and 2 others‑‑‑Respondents

Writ Petition No.25390 of 2000, heard on 3rd July, 2001.

Educational institution‑‑‑

‑‑‑‑ Admission in B.Sc. Engineering‑‑‑Dues for admission‑‑‑Failure to deposit the dues in due course of time‑‑‑Candidate applied for the admission and on account of his being out of city did not know about the last date for deposit of the dues ‑‑‑University denied admission to the candidate‑‑Contention of the Authorities was that even if the candidate be allowed to join the course, he could not complete the required number of attendance of lectures‑‑‑Validity‑‑‑High Court advised the candidate that he might apply for admission in fresh course and the Authorities were directed to consider the case of the candidate in accordance with law and if possible sympathetically.

Ch. Abdul Ghaffar for Petitioner.

Syed Mohsin Abbas Naqvi for Respondents.

Dates of hearing: 29th June and 3rd July, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1875 #

2001 M L D 1875

[Lahore]

Before Syed Jamshed Ali, J

KHALID MEHMOOD and others‑‑‑Appellants

Versus

MUHAMMAD SHAFIQUE KHAN and other,‑‑Respondents

Regular Second Appeal No.40 of 1980, decided on 29th October, 1999.

Punjab Pre‑emption Act (I of 1913)‑‑

‑‑‑‑Ss. 4, 15 & 21‑‑‑Suit for pre‑emption ‑‑‑Divisibility of sale‑7--Suit land was sold to defendants and to one other‑‑‑Defendants had contended that sale was divisible and they could defend sale to their extent‑‑‑Defendants having failed to establish that sale was divisible, suit was rightly decreed concurrently by two Courts below, in favour of plaintiffs.

Abdullah and 3 others v. Abdul Rahim and others PLD 1968 SC 140 and Allah Yar and others v. Ghulam Jeelani and others 1996 SCMR 662 ref.

Ch. Muhammad Hassan for Appellants.

Muhammad Atif Amin for Respondent No. 1.

Nemo for Respondent No.2.

Dates of hearing: 29th October and 10th November, 1999.

MLD 2001 LAHORE HIGH COURT LAHORE 1877 #

2001 M L D 1877

[Lahore]

Before Sheikh Abdur Razzaq, J

GULAB KHAN and others‑‑‑Petitioners

Versus

MUHAMMAD RAMZAN and others‑‑‑Respondents

Civil Revision No.488‑D of 2000/BWP, decided on 23rd October, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Suit for declaration‑‑‑Plaintiffs had claimed that the suit land was given to them by their father through a Tamleeknama and defendants had got no concern whatsoever with the land ‑‑‑Tamleeknama had been prepared after two years and four months of the purchase of stamp paper and had been pressed into service by filing suit after death of their father and possession of the land was not proved to have been handed over to the plaintiffs ‑‑‑Tamleeknama was a glaring example of crude device on the part of the .plaintiffs to deprived the defendants who were rightful owners of land in dispute from , their legal rights‑‑‑Suit was rightly dismissed concurrently by Courts below after analysing evidence produced by the parties.

Syed Muhammad Anwar Shah for Petitioners.

MLD 2001 LAHORE HIGH COURT LAHORE 1903 #

2001 M L D 1903

[Lahore]

Before Muhammad Zafar Yasin, J

SHABBIR AHMAD and others‑‑‑Petitioners

Versus

PAKISTAN TELECOMMUNICATION COMPANY

LIMITED and others‑‑‑Respondents

Writ Petitions Nos.6575 and 6576 of 1998/BWP, decided on23rd February, 1999.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Contractual obligation could not be enforced through Constitutional petition.

Munir Gul and others v. Administrator, Municipal Corporation, Peshawar 1998 CLC 898; Messrs Momin Co. v. The Regional Transport Authority, Dacca PLD 1992 SC 108; Millat Tractors Employees Trust v. Government of Pakistan PLD 1992 Lah. 68 and Messrs Sandal Fibres Limited v. Government of Pakistan PLD 1992 Lah. 400 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Orders passed by Authority in the interest of public at large and not for the benefit of any individual, could not be interfered ---with by High Court in exercise of its Constitutional jurisdiction.

Mumtaz‑ul‑Hassan Chaudhry for Petitioners.

Masood Ahmad Gilani for Respondents Nos. 1 to 5.

Syed Munawar Hussain Naqvi for Respondent No.6.

MLD 2001 LAHORE HIGH COURT LAHORE 1908 #

2001 M L D 1908

[Lahore]

Before Maulvi Anwarul Haq, J

KHUSHNOOD IQBAL‑‑‑Petitioner

Versus

D.R.O.‑‑‑Respondent

Writ Petition No.8039 of 2001, decided on 16th May, 2001.

(a) Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S. 14‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Election to the seat of Naib Nazim‑‑‑Finding of fact‑‑‑Finding given in summary proceedings during election process could not at all be treated as finding of fact as the term was normally understood since the same had not been arrived at in a trial where parties had a chance to lead evidence in accordance with law and to rebut each other's case‑‑‑Contention that such finding could be interfered with in Constitutional jurisdiction of High Court, was repelled.

(b) Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S.14(b)‑‑‑Election to :he seat of Naib Nazim‑‑‑Age of candidate‑‑Determination of date of birth of the candidate‑‑‑Date of birth of candidate as recorded in the birth entry was to be given precedence over entries about the date of birth of candidate as recorded in his Matric Certificate.

Nazar Abbas Syed for Petitioner.

Khuda Dad Khan for Respondents Nos.3 and 4.

MLD 2001 LAHORE HIGH COURT LAHORE 1916 #

2001 M L D 1916

[Lahore]

Before Karamat Nazir Bhandari, J

Haji MUHAMMAD ISMAEEL KHAN

and others‑‑‑Petitioners

Versus

PUNJAB PROVINCE and others‑‑‑Respondents

Writ Petition No.9891 of 1992 and Civil Revision No. 1581 of 1994, decided on 22nd October, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.115‑‑‑Revision, maintainability of‑‑‑Revision was dismissed for non-prosecution on the statement of counsel for the petitioner to the effect that the petitioner was not interested in prosecuting the case and that he should be allowed to withdraw his Valkalatnama‑‑‑Case being not of simple withdrawal, the Court had no option, but to dismiss revision for non-prosecution‑‑‑Application for revival of revision petition filed six months after dismissal of revision without any application for condonation of delay and without explaining the said delay, was rightly dismissed.

(b) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑Ss. 10, 30 & 32‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Suit for declaration‑‑‑Title in respect of State land‑‑‑Case set up in the plaint was that Municipal Committee had been in possession of the suit land for about fifty years and had always considered itself to be the owner in possession of the land‑‑‑Suit was contested by the Authority contending that land throughout belonged to the Provincial Government and at no stage was given to the Municipal Committee‑‑‑Mere treatment by plaintiff‑Committee of suit land as its own. for number of years, was not enough to vest title in it nor the grant of lease of land by it to various persons or even alternation of proprietary rights would suffice to constitute Municipal Committee as the owner of land which was a State land.

‑‑‑‑S.115‑‑‑Revisional jurisdiction, exercise of‑‑‑Concurrent findings of two Courts below would not be open to question in revision, merely on the ground that in view of evidence on record another conclusion was possible.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Question of title which involved question of facts could not appropriately be gone into by High Court in exercise of its Constitutional jurisdiction‑‑‑Such controversy could more justly and adequately be decided in civil suit.

Malik Azam Rasool for Petitioners.

Muhammad Amin Lone, Asstt. A.‑G., Punjab for Respondents Nos. 1 to 4.

Khan Zahid Hussain Khan for Respondent No.5.

Syed Zafar Ali Shah and Muhammad Farooq Chishti for Respondents Nos.6 to 51.

Dates of hearing: 14th and 19th October, 1999.

MLD 2001 LAHORE HIGH COURT LAHORE 1921 #

2001 M L D 1921

[Lahore]

Before Syed Jamshed Ali and

Mian Saqib Nisar, JJ

Messrs SIMNWA POLYPROPYLENE (PVT.) LTD.

and others‑‑‑Appellants

Versus

Messrs NATIONAL BANK OF PAKISTAN‑‑‑Respondent

Regular First Appeal No. 172 of 2000, decided on 1st September, 2000.

Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑Ss. 9, 10 & 21‑‑‑Suit for recovery of amount‑‑‑Leave to defend suit‑‑Delay in filing application, condonation of‑‑‑Application for leave to defend suit was filed by the defendant beyond the prescribed period of 21 days‑‑‑Defendant neither had filed application for condonation of delay nor had given any explanation for the said delay‑‑Banking Court could not condone the delay suo motu‑‑‑Application of defendants for leave to appear and defend suit was rightly dismissed in circumstances.

Messrs Qureshi Salt and Spices and another v. Muslim Commercial Bank Ltd. and 3 others 1999 SCMR 2353 ref.

Iftikhar Ahmad Chaudhry for Appellants.

MLD 2001 LAHORE HIGH COURT LAHORE 1925 #

2001 M L D 1925

[Lahore]

Before Nazir Ahmad Siddiqui, J

MALIK HAJI and others‑‑‑Petitioners

Versus

ABDUL RAZAQ and others‑‑‑Respondents

Civil Revision No. 182‑D of 1979, decided on 15th December, 2000.

(a) Contract Act (IX of 1872)‑‑‑

‑‑‑‑Ss.10 & 25‑‑‑Lawful contract‑‑‑Essentials‑‑‑Lawful agreement or contract consisted of three essentials; namely proposal; acceptance and consideration‑‑‑Any transaction without consideration could not be lawfully enforced nor on the basis thereof declaration of any right could be made.

(b) Contract Act (IX‑of 1872)‑‑‑

‑‑‑‑S.23‑‑‑Lawful contract‑‑‑There could be no lawful agreement for the purpose of satisfying the negative feelings/desires of one party and to defeat the legitimate right of any other person‑‑‑Agreement having element of collusiveness, would fall within the mischief of S.23 of Contract Act, 1872.

Subhadrayamma v. Venkatapati Raju AIR 1924 PC 162; Kesho Das v. Tulsi Dass AIR 1926 Lah. 43: Ramanamma v. Viranna AIR 1931 PC 100: Indar Singh v. Munshi AIR 1920 Lah. 123 (1); Hoshing and others v. Dr. Eddie P. Bharucha and others PLD 1968 Kar. 723; Inayat Ali Shah v. Anwar Hussain 1995 CLC 1906; Muhammad Ismail and others v. Mst Mussarat Zamani and others PLD 1985 SC 86; Hussain Ali Khan v. Firoza Begum PLD 1971 Dacca 112 and Sultan v. Nawab Mouladad PLD Kar. 221 ref.

‑‑‑‑Ss. 21 & 29‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Suit for preemption‑‑‑Pre‑emption decree‑‑‑Validity‑‑‑Suit for declaration ‑‑‑Pre‑emption decree passed in favour of pre‑emptor was challenged in suit for declaration on ground that pre‑emption suit filed by pre‑emptor was "benami"‑‑‑Plaintiff being party to the pre‑emption suit and they having given consenting statements in that suit pre‑emption decree could not be declared unlawful an inoperative.

Sardar Muhammad Hussain Khan for Petitioners.

Ajaz Ahmad Ansari for Respondents.

Date of hearing: 5th December, 2000.

MLD 2001 LAHORE HIGH COURT LAHORE 1932 #

2001 M L D 1932

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

PUNJAB PROVINCIAL COOPERATIVE BANK‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others‑‑‑Respondents

Writ Petition No‑10970 and Civil Revision No. 847 of 2000, decided on 26th June, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XLI, R. 31‑‑‑High Court (Lahore) Rules and Orders, Vol. I, Chap. of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Judgment of Appellate Court‑‑‑Judgment of Appellate Court though announced by a short order but detailed judgment could not be signed due to the sudden death of the Presiding Officer‑‑‑Successor Court decided to rehear the arguments and then pronounce the judgment in accordance with law and fixed the date for hearing of the main appeal‑‑‑Validity‑‑‑Order passed by the successor Court to rehear the a appeal was unexceptionable in circumstances‑‑‑Principles.

While keeping in view the provisions of Order XLI, Rule 31, C.P.C. it is very clear that the judgment of the Appellate Court shall be in writing and shall state the point of determination, the decision, thereon, the reasons for decision and where the decree appealed from is reversed or varied the relief to which the appellant is entitled and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concerning therein. There is no escape from the provisions contained in Order XLI, Rule 31, C.P.C., as the decree follows the judgment and a decree will not follow a single line short order.

The State v. Asif Adil and others 1997 SCMR 209; Abdur Rahim, v. Taj Muhammad PLD 1970 Lab. 294; P.I.A. Corporation v. Wafaqi Mohtasib (Ombudsman) and 2 others PLD 1994 Kar. 32 and Muhammad Amin v. Muhammad Ramzan PLD 1988 Lah. 331 ref.

Shifaat Ali and Syed Azhar‑ul‑Haq Gillani for Petitioner.

Syed Kabeer Mahmood for Respondents.

Date of hearing: 26th June, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1937 #

2001 M L D 1937

[Lahore]

Before Khalil‑ur‑Rehman Ramday and

Ijaz Ahmad Chaudhary, JJ

MAQSOOD AHMAD‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal. Miscellaneous No. 6396‑B of 2000, decided on 12th July, 2001

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(1) & (2)‑‑‑Control of Narcotic Substances Act (XXV of 1997), ‑Ss.9(b) & 51‑‑‑Bail, grant of‑‑‑Bail was sought on the ground that the accused was a first offender and that his case was not hit by the prohibition contained either in S.497(1), Cr.P.C. on the one contained in S.51 of Control of Narcotic Substances Act, 1997‑‑‑Validity‑‑‑Mere fact that an offence was not hit by the prohibition under S.497(l), Cr.P.C. would not mean that the said offence had become a bailable offence‑‑‑Discretion would still remain with the competent Court to consider and decide whether a person accused of such an offence did or did riot qualify for his release on bail‑‑‑ Person allegedly involved in spreading the narcotics in the society were not worthy of grant of any discretionary relief and their. consequent release on bail unless they could demonstrate that they had a right to be released on bail by satisfying the Court‑‑‑Contention that the accused was a first offender. was not relevant for the grant of bail in such‑like cases‑‑‑Accused having failed to satisfy requirements of S.497(2), Cr.P.C. his petition for grant of bail, was dismissed.

Ch. Nasir Ahmad Bajwa for Petitioner.

Muhammad Shafi for the State.

MLD 2001 LAHORE HIGH COURT LAHORE 1955 #

2001 M L D 1955

[Lahore]

Before Maulvi Anwarul Haq and

Mian Hamid Farooq, JJ

ALLIED BANK OF PAKISTAN LIMITED, FAISALABAD ‑‑‑ Appellant

Versus

Messrs ASISHA GARMENTS through Proprietor

and 2 others‑‑‑Respondents

Regular First Appeal No. 230 of 1995, heard on 9th May, 2001.

(a) Banking Tribunals Ordinance (LVIII of 1984)‑‑‑

‑‑‑‑S. 9‑‑‑Civil Procedure Code (V of 1908), Os.LXI, R.33 & XXII, R(3)‑‑Appeal‑‑‑Filing of appeal against dead person‑‑‑One of the defendants died during pendency of the suit ‑‑‑Failure to implead legal heirs of the deceased defendant ‑‑‑Effect‑‑‑Without impleading legal heirs of deceased defendant, the plaintiff filed appeal against judgment and decree passed by Banking Tribunal wherein the deceased defendant was arrayed as respondent‑‑‑Effect‑‑‑Failure to implead the legal heirs in the appeal was a serious lapse on the part of the plaintiff‑‑‑High Court, however, under the provisions of Os.XXII, R.4(3) & LXI, R.33, , C.P.C. proceeded with the appeal as any order made or judgment pronounced would have the same force, a, if the same was pronounced before the death took place.

(b) Banking Companies Ordinance (LVII of 1962)‑‑‑

‑‑‑‑Ss. 41 & 42‑‑‑State Bank of Pakistan Circular No. 32, dated 26‑11‑1984‑‑‑Islamisation of banking system‑‑‑Mark‑up on mark‑up, charge. of‑‑‑Mark‑up over mark‑up cannot be charged/claimed by Bank, under Circular No.32, dated 26‑11‑1984, issued by State Bank of Pakistan, under Islamic mode of financing.

United Bank Limited v. Messrs Novelty Enterprises Ltd. and others PLD 1998 Kar. 199; National Bank of Pakistan v. Muhammad Tahir paracha 1998 CLC 1436 and Messrs United Bank Ltd. v. Messrs Redco Textiles Ltd. and 7 others 2000 CLC 968 ref.

‑‑‑‑‑S. 74‑‑‑Liquidated damages‑‑‑Proof‑‑‑Amount fixed in contract as liquidated damages ‑‑‑Recovery of such amount‑‑‑Scope‑‑‑Provisions (If S.74 of Contract Act; 1872, call for proof of liquidated damages and the person claiming such damages is under obligation to bring sufficient material record in order to prove that he had suffered so much of losses‑‑- Without proving the actual loss, even fixed amount stipulated as liquidated damages does not automatically become payable.

Habib Bank Ltd. v. Messrs Farooq Composit Fertilizer Corporation Ltd. and 4 others 1993 MLD 1571; Messrs Hitec Metal Plast (Pvt.) through Chairman, Hasan Pervaiz Sindhi, Muslim Housing Society, Karachi and 3 others v. Habib Bank Limited PLD 1'997 Quetta 87 and United Bank Limited v. Messrs Novelty Enterprises Ltd. and others PLD 1998 Kar. 199 ref.

(d) Banking Tribunals Ordinance (LVIII of 1984)‑‑‑

‑‑‑‑S. 9‑‑‑Contract Act (IX of 1872), S.74‑‑‑Appeal‑‑‑Liquidated damages‑‑Onus to prove‑‑‑Recovery of such damages‑‑‑Bank failed to prove the requisite ingredients for the grant of damages and was not able to show, even prima facie, that the Bank had suffered losses‑‑‑Banking Tribunal reused to decree liquidated damages as claimed by the plaintiff‑‑‑Validity‑‑‑Onus to prove the existence of a concluded contract, breach of contract, the damages and then the quantum of damages, was always on the plaintiff‑‑‑Bank, in case of liquidated damages, had to prove all the necessary ingredients in order to claim liquidated damages under S.74, Contract Act, 1872‑‑‑Terms and conditions of the loan agreement and even in sanction letters it was nowhere provided that in case of default the Bank could charge the amount of liquidated damages from the customers‑‑‑Where proof of damages was not forthcoming, High Court declined to interfere with the judgment and decree passed by the Banking Tribunal‑‑-- Bank was not entitled to claim liquidated damages in circumstances.

United Bank Limited v. Messrs Novelty Enterprises Ltd. and others PLD 1998 Kar. 199; National Bank of Pakistan v. Muhammad Tahir Paracha 1998 CLC 1436 and Messrs United Bank Ltd. v. Messrs Redco Textiles Ltd. and 7 others 2000 CLC 968 ref.

(e) Banking Tribunals Ordinance (LVIII of 1984)‑‑‑

‑‑‑‑S. 11(4)‑‑‑Liquidated damages, levy of‑‑‑Jurisdiction of Banking Tribunal‑‑‑Such damages can be levied by Banking Tribunal only after passing of the decree and not before that‑‑‑Law is specific as regards liquidated damages and impliedly excludes the imposition of liquidated damages in any form other than S.11(4) of Banking Tribunals Ordinance, 1984.

(f) Banking Companies Ordinance (LVII of 1962)‑‑‑

‑‑‑‑Ss. 41 & 42‑‑‑BCD Circular No. 13, dated 20‑6‑1984‑‑‑Islamisation of banking system‑‑‑Liquidated damages‑‑‑Levy of‑‑‑No concept of liquidated damages existed in any of the Islamic modes of financing‑‑‑Under the provisions of BCD Circular No. 13, dated 20‑6‑1984, and all the succeeding circulars‑ ‑None of the circulars issued by the State Bank of Pakistan provided that in any of the Islamic modes of financing Banks were authorised to charge liquidated damages from the defaulting customer/defendant.

(g) Banking Tribunals Ordinance (LVIII of 1984)‑‑‑

‑‑‑‑S, 2(a)‑‑‑Term "finance" ‑"Liquidated damages" not included in the term "finance" ‑‑‑Definition of the term "finance" as given in S.2(a) of Banking Tribunals Ordinance, 1984, does not include and cover the amount of liquidated damages and the damages are outside the purview and scope of definition of "finance"‑‑‑Banks cannot even claim, the amount of liquidated damages relying on the definition of term "finance".

Amjad Pervaiz Malik on behalf of Mian Saeed‑ur‑Rehman Farrukh for Appellant.

Nemo for Respondents.

Date of hearing: 9th May, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1964 #

2001 M L D 1964

[Lahore]

Before Sayed Zahid Hussain, J

SHER MUHAMMAD and 27 others‑‑‑Petitioners

Versus

MUHAMMAD MUMTAZ‑UL‑ISLAM through Legal Heirs

and 6 others‑‑‑Respondents

Civil Revision No.715‑D of 1988, heard on 16th April, 2001.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XLI, R.1‑‑‑Appeal against dead person ‑‑‑Non‑impleading of legal heirs‑‑‑Plea raised by the petitioner was that the names of the legal heirs were not mentioned in the decree sheet‑‑‑Validity‑‑‑Where the decree sheet did not mention names of legal heirs, even then petitioners could not take such a plea as they had been participating in the proceedings before the Trial Court and were aware of the death of one of the plaintiffs‑‑‑Appellate Court had rightly dismissed the appeal of the petitioners and the judgment could not be regarded as illegal in circumstances.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XLI, R.1 & O.XXII, RA ‑‑‑Appeal‑‑‑Impleading a necessary party after period of limitation‑‑‑Effect‑‑‑Omission to implead a necessary party rendered appeal incompetent and such omission of a necessary party from the appeal and application for impleading made after the limitation had run, was fatal.

Mst. Mehr Nishan v. Gulzar Begum and 2 others 1986 CLC 1706; Khushi Muhammad v. Settlement Authorities and others PLJ 1975 Lah. 8 and Maqbool Begum and others v. G,ullan and others PLD 1982 SC 46 ref.

‑‑‑‑S.115 & O.XXII, RA ‑‑‑Revision‑‑‑Impleading a necessary party after period of limitation‑‑‑Effect‑‑‑Legal heirs of deceased respondent were not impleaded in the revision‑‑‑Application to implead such persons was filed after the period of limitation for filing of the petition‑‑‑Such act of the petitioner shoved gross negligence and lack of diligence in pursuing and prosecuting the lis‑‑‑High Court declined to condone such lapse as valuable right had accrued to the other side with the passage of time.

(d) Civil Procedure Code ~V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Revision‑‑‑Filing of‑‑‑Office objection‑‑‑Limitation‑‑‑Failure to specify time for refiling of revision petition‑‑‑Revision was initially filed within time but objection was raised by the office and the petition was refiled after about eight months‑‑‑Effect‑‑‑Where the petition was initially filed within limitation, the same could not be dismissed for such delay in refiling.

Mst. Sabiran Bi v. Ahmad Khan and another 2000 SCMR 847 ref.

(e) Civil Procedure Code (V of 1908)‑

‑‑‑‑S.115 & O.XXII, R.4‑‑‑Revision‑‑‑Necessary party ‑‑‑Impleading of the necessary parties after the period of limitation‑‑‑During the trial one of the plaintiffs died and his legal heirs were impleaded as party to the proceedings before Trial Court‑‑‑Defendants filed appeal against judgment and decree of the Trial Court but failed to implead the legal heirs in the appeal before Appellate Court‑‑‑Appeal was dismissed on such failure‑‑‑Revision was preferred against the judgment and decree of the Appellate Court and legal heirs were again not impleaded‑‑‑Application for impleading the legal heirs was filed after the prescribed period of limitation for filing of revision petition‑‑‑Validity‑‑Appeal filed by the defendants before the Appellate Court was incompetent and the same was rightly dismissed‑‑‑Judgment and decree passed by Appellate Court suffered from no illegality and the same was maintained‑‑‑Revision was dismissed in circumstances.

Abdul Qadir and 5 others.v. Muhammad Umar and others PLD 1987 Lah. 232; Muhammad and others v. Muhammad Hussain Shah and another 1994 MLD 1182; Sardar Begum v. Muhammad Anwar Shah and others 1990 ALD 491 (2); Naheed Ahmad v. Asif Riaz and 3 others PLD 1996 Lah. 702; Ellahi Bakhsh and 8 others v. Ahmed Bakhsh and 2 others 1999 YLR 777; Mst. Sardar Begum v. Muhammad Anwar Shah and others 1993 SCMR 363; Syed Rahat Hussain Zaidi v. Settlement Commissioner and others 1987 CLC 2495 and Muhammad Hanif and others v. Muhammad and others PLD 1990 SC 859 ref.

Muhammad Alamgir Amjad Khan for Petitioners.

Ch. Imdad Ali Khan for Respondents.

Date of heairng: ‑16th April, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1969 #

2001 M L D 1969

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

COLLECTOR, CENTRAL EXCISE AND SALES TAX, LAHORE and 2 others‑‑‑Appellants

Versus

PAKISTAN PULP PAPER AND BOARD MAKERS ASSOCIATION

through Kamran Khan and 3 others‑‑‑Respondents

Intra‑Court Appeal No.420 of 1994, In re: Writ Petition No. 16532 of 1993, heard on 2nd July, 2001.

‑‑‑‑"Representation"‑‑‑Connotation‑‑‑In the context of estoppel representation i.e. a party's declaration, act or omission, must be clear, definite, unambiguous, unequivocal‑‑‑Person making representation should so conduct himself that reasonable man should take the representation to be true and believe that it is meant that he should act upon the same.

Akhtarunnessa's case PLD 1957 Dacca 184 ref.

(b) Estoppel‑‑‑

‑‑‑‑Promissory estoppel ‑‑‑Limitations.

Following are the limitations on the application of the doctrine of promissory estoppel :--

(i) The doctrine of promissory estoppel cannot be invoked against the doing of the Legislature or the laws framed by it because the Legislature cannot make any representation

(ii) Promissory estoppel cannot be invoked for directing the doing of the thing which was against 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 step has been taken consequent to 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.

Salah‑ud‑Din's case PLD 1991 SC 546 ref.

‑‑‑‑Promissory estoppel ‑‑‑Applicability‑‑‑Correspondence between private persons and Government officials‑‑‑Non‑issuance of Notification by Competent Authorities‑‑‑Where there was only correspondence between the parties, the same did not bring the case under the doctrine of promissory estoppel--‑‑ Estoppel could not be invoked for directing doing of a thing which was against law when the representation was made or the promise held out.

Salah‑ud‑Din's case PLD 1991 SC 546 ref.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Preamble‑‑‑Constitution is based on trichotomy.

Zia‑ur‑Rehman's case PLD 1973 SC 49 and Mian Nawaz Sharif's case PLD 1973 SC 473 ref.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Interpretation of law ‑‑‑Scope ‑‑‑High Court has jurisdiction to interpret law and has no jurisdiction whatsoever to take the role of Legislature or the policy‑maker.

Government of Pakistan through Secretary v. Zameer Ahmad Khan PLD 1975 SC 667 and Zameer Ahmad Khan v. Government of Pakistan 1978 SCMR 327 ref.

(f) Sales Tax Act (VII of 1990)‑‑‑

‑‑‑‑Ss. 3(4), 45 & 48‑‑‑Exemption from payment of duty‑‑‑Withdrawal of exemption by Notification‑‑‑Validity‑‑‑Where an exemption from payment of excise duty or any other tax has been granted for a specific period on certain conditions and if a person fulfils those conditions, he acquires a vested right‑‑‑Such persons cannot be denied the exemption before the expiry of the specific period through an executive instrument like notification.

Messrs Army Welfare Sugar Mills' case 1992 SCMR 1652 ref.

(g) Act of Court‑‑‑

‑‑Nobody should be penalized by the act of the Court.

Mian Irshad Ali's case PLD 1975 Lah. 7 ref.

(h) Sales Tax Act (VII of 1990)‑‑‑

‑‑‑‑Ss. 3(4), 45 & 48‑‑‑Central Excises Act (I of 1944), S.3(5)‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Intra‑Court Appeal‑‑Maintainability‑‑‑Arrears of sales tax, recovery of‑‑.‑Supervised Clearance Procedure‑‑‑Dispute was with regard to withdrawal of production, capacity procedure approved by the Committee of Federal Government and Enforcement of Supervised Clearance Procedure‑‑‑High. Court allowed the Constitutional petition and judgment of High Court was assailed before Division Bench of High Court in exercise of jurisdiction under S.3 of Law Reforms Ordinance, 1972‑‑‑Objection was raised to the maintainability of the Intra‑Court Appeal‑‑‑Validity‑‑‑Where the order impugned, in the Constitutional petition was not appealable before any higher Authority, the Intra‑Court Appeal was maintainable and the bar under proviso to S.3(2) of Law Reforms Ordinance, 1972, was not attracted‑‑‑Division Bench of High Court directed the Authorities not to demand additional dues and penalties from the respondents‑‑‑Order passed by High Court under Constitutional jurisdiction was set aside and Intra‑Court Appeal was allowed accordingly.

Messrs Motilal Padampt Sugar Mills' case AIR 1979 SC 621; Raja Industries Pvt. Ltd.'s case 1996 MLD 980; Messrs Raja Industries Pvt. LA's case 1998 SCMR 307 and Akhtarunnessa's case PLD 1957 Dacca 184 ref.

A. Karim Malik for Appellants.

Ashtar Ausaf Ali for Respondents.

Date of hearing: 2nd July, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 1983 #

2001 M L D 1983

[Lahore]

Before Khalil‑ur‑Rehman Ramday

and Ijaz Ahmed Chaudhry, JJ

MUHAMMAD ILYAS‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.7204‑B of 2000, decided on 9th July, 2001.

(a) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(1)‑‑‑Control of Narcotic Substances ct (XXV of 1997), SO, & 51‑‑‑Bail‑‑‑Case of accused, no doubt, was not hit by the prohibition contained either in S.497(1), Cr.P.C. or in S. 51 of the Control of Narcotic Substances Act, 1997, but this did not make the offence allegedly committed by him a bailable offence and the discretion still remained with the Court to consider judiciously whether the accused did or did not deserve .to be released on bail‑‑‑Persons allegedly involved in spreading narcotics in society were not worthy of grant of any discretionary relief to them unless they could demonstrate that no reasonable grounds existed to believe that they were guilty of the alleged offence‑‑‑Police officials were competent witnesses in the eyes of law unless shown to have any motive or reasons for false implication of accused‑‑‑Control of Narcotic Substances Act, 1997, in the matter of punishment of offenders did not envisage any distinction between psychotropic substances of different types‑‑‑Bail was declined to accused in circumstances.

(b) Criminal trial‑‑

‑‑‑‑ Witness‑‑‑Police witness ‑‑‑Police officials are competent witnesses in the eye of law unless demonstrated to have any motive or reason to falsely implicate the accused and their testimony cannot be discarded only because they are employees of Police Department.

‑‑‑‑S. 9‑‑‑Sentence‑‑‑Control of Narcotic Substances Act, 1997, does not envisage any distinction in the matter of sentence between psychotropic substances of different types.

Syed Zahid Hussain Bokhari for Petitioner.

Muhammad Sarwar Awan for the State.

MLD 2001 LAHORE HIGH COURT LAHORE 1987 #

2001 M L D 1987

[Lahore]

Before Syed Zahid Hussain and Abdul Shakoor Paracha, JJ

SULTAN MAHMOOD and another‑‑‑Appellants

Versus

HABIB BANK LIMITED through Manager‑‑‑Respondent

First Appeal from Order No. 164 of 2001, decided on 7th June, 2001.

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑-

‑‑‑‑Ss. 12 & 21(4)‑‑‑Civil Procedure Code (V of 1908), 0. IX, R.13 ‑‑‑ Ex parte decree, setting aside of‑‑Provisions of O. IX, R.13, C.P.C. ‑Applicability‑‑‑Application to set aside a decree is competent before the Banking Court only under S.12 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, in the given circumstances‑‑‑ A Where in a particular case the provisions of S.12 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, is not applicable, then the decree has been made appealable under S.21(4) of the Act‑‑‑Permitting challenge to a decree by invoking O.IX, R.13, C.P.C. would run counter to the intendment arid object of the special law, which by S.27 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, attaches finality to orders, judgments and decrees subject to provisions of appeal.

(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑Ss. 12 & 21(4)‑‑‑Civil Procedure Code (V of M8), O.IX, R.13‑‑‑Ex parte decree, setting aside of‑‑‑Provisions of OAX, R.13, C.P.C.‑‑Applicability‑‑‑Application to set aside ex parte decree was filed under O.IX, R.13, C.P.C. and not under S.12 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997‑‑‑Validity‑‑‑In presence of a specific remedy provided by the relevant statute itself, i.e. Ss. 12 & 21 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, reliance upon O.IX, R.13, C.P.C. was unwarranted and not apt‑‑‑Application before Banking Court under O.IX, R.13, C.P.C. was misconceived as pre‑conditions for the applicability of S.12 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, were lacking in the case‑‑‑Banking Court had rightly dismissed the application filed under O.IX, R.13, C.P.C.‑‑‑Where the order of Banking Court was consistent with the legal position obtaining [n the matter, High Court declined to interfere with the same‑‑‑Appeal was dismissed in limine.

Messrs Shah Jewana Textile Mills Ltd., Lahore through Representative v. United Bank Limited through Attorney PLD 2000 Lah. 162; Messrs Gold Star International and another v.‑ Muslim Commercial Bank Limited 2000 MLD 421; Allied Bank of Pakistan Limited v. Digital Radio Paging (Pvt.) Ltd. and 4 others 2000 CLC 1153; United Bank Ltd. v: Messrs Zafar Textile Mills Ltd. 2000 CLC 1330; Muhammad Ayub Butt v. Allied Bank of Pakistan and others PLD 1981 Pesh. 138; Azhar Hussain v. Chartered Bank, Faisalabad and 17 others 1981 CLC 516 and Muhammad Ayub Butt v. Allied Bank Ltd., Peshawar and others PLD 1981 SC 359 ref.

MLD 2001 LAHORE HIGH COURT LAHORE 1996 #

2001 M L D 1996

[Lahore]

Before Mian Hamid Farooq, J

Sheikh UHAMMAD IKRAM and another‑‑‑Petitioners

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Finance, Islamabad

and 3 others‑‑‑Respondents

Writ Petition No.7640 of 2901, decided on, 10th May, 2001.

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑S. 18‑‑‑Execution of decree‑‑‑Duty of executing Court ‑‑‑Scope ‑‑Judgment‑debtor is bound by the terms of decree and the Executing Court is bound to execute the decree as it is, till full recovery is made.

(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑

‑‑‑‑S. 18‑‑‑Civil Procedure Code (V of 1908), S.38‑‑‑Executing Court‑‑Limitations‑‑‑Executing Court cannot go behind the decree which has attained finality.

‑‑‑ Banks and financial institutions‑‑‑Functions and obligations‑‑‑Banks and financial institutions are the custodians of public money and it is their bounder duty to protect the interest of general public and should not allow the public money to be wasted on account of devices adopted by certain unscrupulous persons, who after obtaining the loan do not care to return the same.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 199 & 203‑G‑‑‑Constitutional petition‑‑‑Declaration of any provisions as un‑Islamic‑‑‑Jurisdiction of High Court‑‑‑Scope‑‑‑Contention was that charging of mark‑up/interest on principal amount was un‑Islamic‑‑Validity‑‑‑High Court in view of Art. 203‑G of the Constitution had no power or jurisdiction, under the law, to determine the question.

W Muhammad Ramzan v. City Bank N.A. 2001 CLC 158 and Dr. Muhammad Aslam Khaki v Syed Muhammad Hashim and 2 others PLD 2000 SC 225 ref.

(e) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art.199‑‑‑Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997), S.18‑‑‑Cons'titutional petition‑‑‑Execution of decree‑‑‑Principle of equity‑‑‑Applicability‑‑‑Judgment‑debtors seeking extension of time for deposit of decretal amount‑‑‑Despite passing of decree, the judgment‑debtors were withholding public money which they had taken as a finance/loan from the decree‑holder Bank‑‑‑Contention of the judgment debtors was that either the loan be rescheduled or time be extended for deposit of the decretal amount‑‑‑Validity‑‑‑Where the judgment‑debtors had not come to the Court with clean hands, they were not entitled to any equitable relief‑‑‑High Court declined to exercise Constitutional jurisdiction in favour of the judgment‑debtors‑‑‑Petition was dismissed in limine.

Khuram Saeed for Petitioners.

MLD 2001 LAHORE HIGH COURT LAHORE 2000 #

2001 M L D 2000

[Lahore]

Before Tassaduq Hussain Jilani, J

MUHAMMAD ANWAR ‑‑‑Petitioner

Versus

DEPUTY SETTLEMENT COMMISSIONER and others‑‑‑Respondents

Writ Petition No.5‑R of 1986, decided on 31st July, 2001.

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIB of 1958)‑‑‑

‑‑‑‑S. 10‑‑‑Issuance of transfer order‑‑‑Jurisdiction of Settlement Authorities‑‑‑Scope‑‑‑Settlement Authorities after issuance of transfer order are rendered functus officio and the property vests in the name of the transferee.

(b) Displaced Persons (Compensation and Rehabilitation) Act (XXVBI of 1958)‑‑‑

‑‑‑‑S. 10‑‑‑Permanent Transfer Deed‑‑‑Issuance on the basis of tampered record‑‑‑Effect‑‑‑Finality attached to Permanent Transfer Deed presupposes existence of jurisdictional facts‑‑‑Where it was shown that Permanent Transfer Deed was issued on the basis of a tampering of record or it was found that the property was not available for allotment; then no finality could be attached to such order‑‑‑Settlement Authorities did not become functus officio in circumstances.

Syed Ahmad Shah v. Haji, Fazal Rahim 1975 SCMR 268 and Muhammad Anwar Khan v. M.A. Wasti and others 1975 SCMR 372 ref.

‑‑‑‑S. 10‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Tampering of record‑‑‑Association deed (Ishrak Nama) was tendered before Settlement Authorities and the same was acted upon as there were corresponding entries in the compensation books‑‑‑Subsequent to the order passed in favour of the respondents, the petitioner procured surrender deed from the original allottee and made him appear before the Settlement Authorities who, without examining the record, issued transfer order in favour of the petitioner‑‑‑Subsequent transfer order issued in favour of the petitioner was cancelled by the Authorities‑‑‑Validity‑‑‑Subsequent transfer order in favour of the petitioner on the face of it, was without jurisdiction and had rightly been set aside by the Authorities after hearing both the parties‑‑‑Order of cancellation of subsequent transfer order was based on ecquitable circumstances‑‑‑Such order of cancellation was neither arbitrary nor did it reflect any jurisdictional defect to warrant interference under Art.199 of the Constitution‑‑‑Constitutional petition was dismissed in circumstances.

Mistri Abdul Aziz v. Mistri Muhammad Yasin 1982 SCMR 1083; Syed Wajihul Hassan Zaidi v. Government of the Punjab 1997 SCMR 1901 and Nawabzada Zafar Ali Khan v. Chief Settlement Commissioner 1999 SCMR 1719 distinguished. .

Muhammad Shafi v. Sardar Noor Muhammad 1989 SCMR 728; Mst. Allah Rakhi v. Additional Settlement Commissioner 1995 SCMR 1017 and AIR 1982 SC 1493 ref.

Islam Ali Qureshi for Petitioner.

Muhammad Ameer Bhatti for Respondents.

Ch. Sagheer Ahmad, Standing Counsel for the Federal Government.

Dates of hearing: 30th and 31st July, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 2007 #

2001 M L D 2007

[Lahore]

Before Tassaduq Hussain Jilani, J

Mst. ALAM BIBI‑‑‑Appellant

Versus

AKBAR ALI and others‑‑‑Respondents

Regular Second Appeal No.30 of 1982, decided on 17th August, 2001.

(a) Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑O. IX, R.6‑‑‑Ex pane proceedings‑‑‑Responsibility of plaintiff‑‑Notwithstanding the ex parte proceedings against the defendant, the plaintiff has to prove his own case.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 129(g)‑‑‑Civil Procedure Code (V of 1908), 5.100‑‑‑Disputed fact‑‑Plaintiff herself was witness to the fact‑‑‑Non‑appearance of plaintiff during trial‑‑‑Effect‑‑‑Matter was decided in 'Panchayat' and share of the plaintiff was recorded in Revenue Record according to the compromise ‑‑‑Trial Court decreed the suit in favour of the plaintiff and the judgment and decree of Trial Court was reversed by First Appellate Court‑‑‑Validity‑‑‑Non-appearance of the plaintiff herself during trial would raise a presumption against her as she was the best person to depose about the convening of 'Panchayat' in which compromise was effected and it was in the evidence that she entered into the compromise which compromise was finally given effect to before the Revenue Authorities‑‑‑Where the Appellate Court had considered the entire evidence and had given a finding of fact, High Court declined to interfere with the findings of the First Appellate Court‑‑‑Second appeal was dismissed in circumstances.

1997 SCMR 1267; PLD 1980 Azad J&K 60 and 1981 CLC 1248 distinguished.

Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1959 (W.P.) Pesh. 81 and Saleh Muhammad Khan v. Hassan Muhammad Khan 1981 CLC 353 ref.

Ch. Abdul Razzaq for Appellant.

Nemo for Respondent.

Date of hearing: 9th August, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 2012 #

2001 M L D 2012

[Lahore]

Before Tassaduq Hussain Jilani, J

FAZAL MUHAMMAD and others‑‑‑Appellants

Versus

Mst. ZAAINAB BIBI and others ----- Respondent

Regular Second Appeal No. 6 of 1989, decided on 10th August, 2001

(a) Civil Procedure Code (V of 1908)‑‑‑----

‑‑‑‑O.XVIII, Rr. 1, 2 & 3‑‑‑Examination of witnesses‑‑‑Order of production of witnesses‑‑‑Reservation of right of producing some evidence‑‑‑Where onus of proving some of the issues lies on the plaintiff, it is the plaintiff who has to begin the evidence on such issues and conclude the same thereon‑‑Plaintiff may reserve evidence on those issues only the onus of proving of which lies on the defendant.

AI‑Haj Khalil Ahmad v. The Australasia Bank Ltd., Lahore and another 1979 CLC 494 and Murid Hussain v. Muhammad Lal 1987 CLC 10 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑--

‑‑‑‑O. VI, R.2‑‑‑Inconsistent plea‑‑‑Effect‑‑‑Such plea is not in consonance with the mandate of ONI, R.2, C.P,C.

‑‑‑‑S.21‑‑‑Civil Procedure Code (V of 1908), 5.100‑‑‑Concurrent findings of fact by the Courts below‑‑‑Interference of High Court in exercise of powers under 5.100, C.P.C.‑‑‑Scope‑‑‑Pre‑emptor claimed to be mother of the vendor and filed the suit on such ground ‑‑‑Vendee raised objection to the relationship and denied her relationship‑‑‑Both the /Courts below by relying on incomplete and inconsistent plea contained in the plaint concurrently decreed the suit‑‑‑Validity‑‑‑Where both the Courts below had arrived at finding of fact which was vitiated by error of law, such finding could be interfered with in a second appeal‑‑‑Judgments and decrees of both the Courts below were set aside and suit was dismissed.

Ghaus Bakhsh v. Chief Election Commissioner of Pakistan PLD 1969 K4r, 662; Feroz Khan and others v. Mst. Waziran Bibi 1987 SCMR 1647 and Muhammad Naveed and others v. Ghulam Muhammad and others 1994 SCMR 559 ref.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. l00___Second Appeal‑‑‑Scope‑‑‑Finding of fact‑‑‑Where both the Courts below had arrived at finding of fact which was vitiated by error of law, such finding could be interfered with in a second appeal‑‑‑Judgments and decrees of both the Courts below were set aside and suit was dismissed.

Shamsul Haq Ansari for Appellants.

Khizar Hayat Khan for Respondents.

Date of hearing: 8th August, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 2019 #

2001 M L D 2019

[Lahore]

Before Tassaduq Hussain Jilani, J

DOST MUHAMMAD ‑‑‑Petitioner

Versus

MEMBER, BOARD OF REVENUE and others‑‑‑Respondents

Writ Petition No.2740 of 1994, decided on 20th July, 2001

(a) Power of attorney‑‑‑

‑‑‑‑ General power of attorney‑‑‑Property under agency‑‑‑Use of such property by the attorney‑‑‑Obligations on attorney discussed.

In cases of difficulty (and it will be a case of difficulty if power of attorney is susceptible to doubt about its interpretation) to use all reasonable diligence in communicating with the principal and seeking to obtain his instruction's, and if the agent deals on his own account with the property under agency, e.g., if he purchases it' himself or for his\ own benefit, he in his own interest should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction.

Fida Muhammad v. Pir Muhammad Khan through Legal Heirs and others PLD 1985 SC 341 and Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818 ref.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑Ss.16&,215‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Power of attorney‑‑‑Trust of principal‑‑‑Attorney transferring the property under agency in the names of his sons‑‑‑Agreement to sell in favour of the sons of the attorney was allegedly executed a day prior to the registered power of attorney‑‑‑Such fact of registration of power of attorney was not mentioned in the document (general power of attorney document) and the same was not presented before the Collector alongwith application praying for transfer of the land in favour of the two sons of the attorney‑‑Agreement appeared to be a forged document and that was why the same was neither presented before the Revenue Authorities nor before High Court through a written statement‑‑‑Effect‑‑‑Attempt by the agent to transfer the land of principal was hit by Ss. 16 & 215 of Contract Act, 1872‑‑‑Agent in the relationship of principal and attorney, enjoyed the position of dominate influence‑‑‑Agent was enjoined under the law not to make a transfer of property of the principal in his own name or in the name of his associates without explicit consent of the principal‑‑‑Order passed by Board of Revenue was against the mandate of the law as laid down by Supreme Court in cases reported as PLD 1985 SC 341 and 1994 SOMR 818 and the order was set aside‑‑‑Constitutional revision was allowed accordingly.

PLD 1979 Kar. 22; Fida Muhammad v. Pit Muhammad Khan through Legal Heirs and others PLD 1985 SC 341; Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818 and Mathra Das Jagam Nath v. Jiwan Mal‑Gian‑Chaad 1LR 1928 Lah. 7 ref.

‑‑‑‑ Principal and agent‑‑‑Relationship ‑‑‑Person, who, stands in a relation of trust or confidence to another shall not be permitted in pursuit of his private advantage to place himself in a situation which gives him a bias against the due discharge of that trust or confident.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Written statement, non‑submission of‑‑‑Effect‑‑‑Non‑submission of written statement amounts to an admission the averments made in the petition.

Mathra Das Jagatn Nath v. Jiwan Mal‑Gian Chand 1LR 1928 Lah.7; PLD 1984 Quetta 131; PLD 1978 Lah. 13711 and PL.D 1965 Pesh. 105 ref.

Kanwar Akhtar Ali for Petitioner.

Ch. Muhammad Hussain Jahangir for Respondents.

Date of hearing: 28th June, .2001.

MLD 2001 LAHORE HIGH COURT LAHORE 2027 #

2001 M L D 2027

[Lahore]

Before Tassaduq Hussain Jilani, J

ATTA MUHAMMAD and others‑‑‑Appellants

Versus

IMTIAZ ALI ‑‑‑Respondent

Regular Second Appeal No. 164 of 1987, decided on 17th August, 2001.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.100‑‑‑Second appeal‑‑‑Concurrent findings of fact by the Courts below‑‑‑Jurisdiction of High Court‑‑‑Where both the Courts below in arriving at the concurrent findings had totally ignored material evidence on record, such findings were not sustainable in law.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.90‑‑‑Regisered sale‑deed‑‑‑Proof‑‑‑Failure to challenge certain part of the deed‑‑‑Effect‑‑‑Mere recital in a registered, sale‑deed was no conclusive proof of its correctness‑‑‑Where the plaintiff had challenged certain part of the recital in a registered sale‑deed but had not challenged the remaining part of the recital a presumption of truth would attach to that part which was not challenged particularly if there was other evidence on record in support of the part which was not challenged.

‑‑‑‑Ss.4 & 6‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 90‑‑‑Civil Procedure Code (V of 1908), S.100‑‑‑Pre‑emption suit‑‑‑Sale consideration, receipt of‑‑‑Proof‑‑‑Concurrent findings of fact by the Courts below ‑‑‑Pre‑emptor objected to the sale price of the suit land mentioned in the registered sale-deed‑‑‑Trial Court decreed the suit in favour of the pre‑emptor and judgment and decree passed by the Trial Court were maintained by the First Appellate Court‑‑‑Validity‑‑‑Entries made in registered document were deemed to be correct unless the same were rebutted by strong evidence‑‑‑Both the Courts below by ignoring the legal evidence on record, had committed substantial error which warranted interference in second appeal‑‑‑Concurrent judgments and decrees passed by Trial Court as well as First Appellate Court were set aside and the suit was dismissed.

PLD 1985 SC 153; 1984 CLC 2950 and Pirla and others v. Noora and others PLD 1976 Lah. 6 ref.

(d) West Pakistan Land Revenue Act (XVU of 1967)‑‑‑

‑‑‑‑Ss. 39 & 52‑‑‑Record of rights‑‑‑Presumption in favour of entries‑‑Khasra Girdawari‑‑‑It is settled law that no presumption of truth is attached to Khasra Girdawari.

1983 CLC 1868 and 1982 CLC 1309 ref.

Muhammad Naveed Hashmi for Appellants.

Sikander Javaid for Respondent.

Date of hearing: 26th July, 2001.

MLD 2001 LAHORE HIGH COURT LAHORE 2033 #

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Peshawar High Court

MLD 2001 PESHAWAR HIGH COURT 131 #

2001 M L D 131

[Peshawar]

Before Tariq Pervez and Abdur Rauf Khan Luqhmani, JJ

GUL BAZ KHAN and 2 others‑‑‑Petitioners

versus

ADDITIONAL SECRETARY, HOME AND

TRIBAL AFFAIRS DEPARTMENT, PESHAWAR

and 12 others ‑‑‑‑Respondents

Writ Petition No .1010 of 1997, decided on 19th September, 2000.

North‑West Frontier Province Pre‑emption Act (XIV of 1950)‑‑‑.

‑‑S.5(c)‑‑‑Constitution of Pakistan (1973), Arts. 199, 203‑D(2) & 203‑F (2)‑‑‑Suit for Pre‑emption‑‑Exemption from Pre‑emption ‑‑‑Held, decision of Supreme Court, Government of N.‑W.F.P. v. Said Kamai Shah PLD 1986 SC 360, wherein provisions of S.5(c) of North‑West Frontier Province pre‑emption Act, 1950 were declared to be un‑Islamic, could not be given effect to before 31‑7‑1986‑‑‑Principles.

Muhammad Waris Khan for Petitioners.

Syed Sardar Hussain for Respondents.

Date of hearing: 19th September, 199

MLD 2001 PESHAWAR HIGH COURT 142 #

2001 M L D 142

[Peshawar]

Before Talat Qayum Qureshi, J

ZAFAR‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.948 of 2000, decided on 29th September, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.6/7/8/9‑‑‑ Bail‑‑‑Recovery of heroin from the accused had been witnessed by the officials of Anti‑Narcotic Force who had supported the same in their statements made under S.161, Cr.P.C.-‑‑Laboratory test report in respect of the samples of the recovered material was in positive‑‑‑Recovery of the contraband heroin was effected not only from the direct possession of the accused but also on their pointation from under the rear seat of the car‑‑Reasonable grounds, thus, appeared for believing the accused guilty of the offence punishable with death or imprisonment for life, for being in possession of huge quantity of contraband heroin‑‑‑Case of co‑accused having been released on bail was distinguishable from the case of accused‑‑Bail was declined to accused in circumstances‑‑‑High Court, however, directed the Trial Court to conclude trial within four months failing which the accused would be at liberty to move application before the said Court for their release on bail.

Abdul Latif Afridi for Petitioner.

Muhammad Tariq Kakar for the State.

Date of hearing: 29th September, 2000.

MLD 2001 PESHAWAR HIGH COURT 167 #

2001 M L D 167

[Peshawar]

Before Mian Muhammad Ajmal, CJ

SWAMI SEREINA HOTEL, SAIDU SHARIF SWAT through Manager‑‑‑Petitioner

versus

SECRETARY FINANCE, GOVERNMENT OF N.‑W.F.P.

and 4 others‑‑‑Respondents

Civil Revision No.217 of 1995, decided on 13th March, 2000.

(a) Provincially Administered Tribal Areas (Application of Laws) Regulation (I of 1985)‑‑‑

‑‑‑‑Reg1n. 2‑‑‑North‑West Frontier Province Finance Act (II of 1975), S.8‑‑‑Extending benefit of deleted statute‑‑‑Provisions of North‑West Frontier Province Finance Act, 1975 were extended to the Provincially Administered Tribal Areas and before extending the same S.8 of North‑West Frontier Province Finance Act, 1975 had been deleted‑‑‑Effect‑‑‑Held, after deletion of S.8 from N.‑W.F.P. Finance Act, 1975 same could not be extended to Provincially Administered Tribal Areas through Regulation.

(b) Interpretation of statutes‑‑‑

‑‑‑‑Fiscal statute‑‑‑Notifications‑‑‑Retrospective application ‑‑‑Validity‑‑Notifications and regulations cannot be given retrospective effect specially the law relating to the levy of taxes and cesses.

Bennion's Statutory Interpretation, 1984 Edn., pp. 151‑152 and Corpus Juris Secundum, Vol. LIX, pp.‑1131, 1135 ref.

‑‑‑‑ Fiscal statute‑‑‑Construction‑‑‑Principles‑‑‑Statutes are to be construed prospectively unless it is otherwise specifically provided that construction applies to remedial statutes only‑‑‑Whenever substantive or revenue laws are made they take effect from the date they are enacted and affect only future transactions and not the past ones.

Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan 1991 SCMR 1652 ref.

(d) North‑West Frontier Province Finance Act (II of 1975)‑‑‑

‑‑‑‑S. 1‑‑‑Provincially Administered Tribal Areas (Application of Laws) Regulations (I of 1985), Regln. 2‑‑‑Development cess, recovery of‑‑Development cess was imposed by S.8 of North‑West Frontier Province Finance Act, 1975, but prior to the extension of the same to Provincially Administered Tribal Areas, said section was withdrawn ‑‑‑Assessee assailed recovery of cess in a civil suit‑‑‑Trial Court decreed the suit and restrained the Provincial Government from recovery of the cess but Lower Appellate Court allowed the appeal and dismissed the suit‑‑‑Validity‑‑‑Extension of North‑West Frontier Province Finance Act, 1975 vide Regulation I of 1985 was without S.8 of North‑West Frontier Province Finance Act, 1975 with prospective effect‑‑‑Judgment and decree of Trial Court restraining Government from recovery of cess was maintained.

Q. Muhammad Anwar for Appellant.

Abdul Sattar, Asstt. A.‑G. for Respondents.

Date of hearing: 13th March, 2000.

MLD 2001 PESHAWAR HIGH COURT 316 #

2001MLD316

[Peshawar]

Before Malik Hamid Saeed and Saleem Dil Khan, JJ

ZAKIRULLAH and 3 others‑‑‑Petitioners

versus

SULEMAN SHAH and 5 others‑‑‑Respondents

Writ Petition No. 1430 and Civil Miscellaneous No. 1665 of 1999, decided on 20th September, 2000.

(a) Punjab Minor Canals Act (III of 1905)‑‑‑

‑‑‑‑Ss. 1(2), 2, Scheds. 1, II & S.43‑‑‑Settlement of dispute with regard to use or maintenance of canal or watercourse‑‑‑Authorities competent to determine‑‑‑Matters relating to the canal mentioned in Sched. I and Sched.II of the Punjab Minor Canals Act, 1905 would be determined under the Act‑‑‑Authority under S. 43 of the Act to resolve dispute was Collector while the Commissioner of the Division was Appellate Authority‑‑‑Canal which was not included in Scheds. I & II of Punjab Minor Canals Act, 1905 would be governed by general law viz. ‑Canal and Drainage Act, 1873.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Counsel and client‑‑‑Junior counsel had properly represented the petitioners and argued the case at length before the forum‑‑‑Said counsel was neither hampered nor handicapped in properly defending the petitioners‑‑‑Petitioners had contended that their case having been argued by a junior counsel in absence of the senior counsel, they had not been given proper opportunity to defend their case‑‑‑Validity‑‑‑Grievance regarding absence of senior counsel could not be made a ground for interference by High, Court while exercising its Constitutional jurisdiction.

Abdul Bari Khan assisted by Mubbashir for Petitioner.

Gul Sadbar for Respondents.

Date of hearing: 20th September, 2000.

MLD 2001 PESHAWAR HIGH COURT 330 #

2001 M L D 330

[Peshawar]

Before Talat Qayum Qureshi and Saleem Dil Khan, JJ

KHUSHMIR‑‑‑Petitioner

versus

Mst. MUSARAT JABEEN and 5 others‑‑‑Respondents

Writ Petition No.865 of 1995, decided on 24th October, 2000.

(a) North‑West Frontier Province Tenancy Act (XIV of 1950)‑‑‑

‑‑‑‑Ss. 2(d), 24 & 25‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Suit for recovery of produce and ejectment of tenant‑‑‑Petitioner who was cultivating land of respondent on basis of 1/2 share of produce having failed to pay agreed share of produce, respondent filed suit against him which was concurrently decreed by forums below‑‑Respondent had been entered as owner of land in question in Revenue Record till filing of suit and petitioner was entered as tenant under the respondent‑‑‑Respective status of parties as owner and tenant having not been challenged, respondent was entitled to receive share of produce from petitioner‑‑‑If petitioner had paid the share to person other than respondent, considering him as his landlord, it was clearly default in payment of share to respondent on the part of petitioner‑‑‑Speaking orders concurrently passed by forums below based on evidence on record could not be interfered with by High Court.

P L D 1953 Pesh. 42; PLD 1952 FC 138 and 1992 SCMR 1849 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.75 & O.XXVI, R.9‑‑‑Appointment of Commissioner‑‑‑Appointment of Commissioner was the prerogative of the Court and any relevant person could be so appointed.

Jan Muhammad for Petitioner.

Muhammad Alam Khan for Respondent No. 1.

Date of hearing: 24th October, 2000.

MLD 2001 PESHAWAR HIGH COURT 366 #

2001 M L D 366

[Peshawar]

Before Sardar Muhammad Raza, J

GHULAM MEHMOOD‑‑‑Petitioner

versus

HUKAM KHAN and others‑‑‑Respondents

Civil Miscellaneous Nos.291 and 301 in Civil Revision No.276 of 1990, decided on 25th June, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑S. 12(2)‑‑‑Applicability of S.12(2), C.P.C.‑‑‑Plea of fraud and misrepresentation‑‑‑ Provision of S.12(2), C.P.C. would not be attracted on discovery of fresh evidence and that too after a long litigation‑‑‑Provision of S.12(2), C.P.C. Would apply only when someone had obtained a decree on the basis of fraud, misrepresentation or from a forum that lacked jurisdiction.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 12(2)‑‑‑Plea of fraud and misrepresentation‑‑‑ "Misrepresentation', meaning of‑‑‑If the very fact represented formed the basis of assertion or denial and thus being a fact in issue required final determination by the Court through recording of evidence that would not be a "misrepresentation"‑‑Such fact in issue, neither concealed nor sprung by surprise, would not fall within the scope of misrepresentation‑‑‑An openly asserted claim which opposite‑party had all opportunity to rebut as a question of fact, could not be claimed as misrepresentation.

‑‑‑‑"Misrepresentation"‑‑‑Meaning.

Muhammad Asif Khan for Petitioner.

MLD 2001 PESHAWAR HIGH COURT 396 #

2001 M L D 396

[Peshawar]

Before Abdur Rauf Khan Lughmani, J

SAEED AHMED ‑‑‑Petitioner

versus

PROVINCE OF N.‑W.F.P. through Collector, D.I. Khan, District and 3 others‑‑‑Respondents

Civil Revision No.21 of 1996, decided on 20th December, 1999.

(a) North‑West Frontier Province Civil Servants Act (XVIII of 1973)‑‑‑

‑‑‑‑S. 2(b)‑‑‑Part‑time employee in Government department‑‑‑Failure to regularize such employee‑‑‑Jurisdiction of Service Tribunal‑‑‑Scope‑‑‑Such employee was not a regular civil servant within the meaning of S. 2(b) of North‑West Frontier Province Civil Servants Act, 1973‑‑‑Held, part‑time servant paid from contingencies had no remedy available with the Service Tribunal‑‑‑Only recourse open for such employee was to bring civil suit.

(b) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for declaration‑‑Part‑time employee in Government department‑‑‑Failure to adjust against regular seat‑‑‑Plaintiff was part‑time servant, instead of regularising his service, defendant was appointed at his place‑‑‑Such appointment of the defendant was assailed in civil suit‑‑‑Trial Court decreed the suit but Lower Appellate Court allowed the appeal and judgment of the Trial Court was set aside‑‑‑Validity‑‑‑Plaintiff had preferential rights to be adjusted against the regular seat as against the defendant who was stranger for such appointment‑‑‑High Court set aside the judgment of Lower Appellate Court and restored that of the Trial Court‑‑‑Revision was allowed in circumstances.

Saleem Bacha v. Sub‑Divisional Education Officer (Male), Timar Garah‑Dir and 2 others 1993 SCMR 1289 ref.

Sh. Muhammad Bashir Gohar for Petitioner.

S. Saeed Hassan Sherazi, A.A. ‑G. for Respondents Nos. l to 3.

Muhammad Saleem Khan Gandapur for Respondent No.4.

Date of hearing: 29th January, 1999.

MLD 2001 PESHAWAR HIGH COURT 412 #

2001MLD412

[Peshawar]

Before Abdur Rauf Khan Lughmani, J

MEHAR JAN and 2 others‑‑‑Petitioners

versus

GUL AZAM‑‑‑Respondent

Civil Revision No. 86 of 1996, decided on 5th April, 1999.

Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑S. 115‑‑‑Revision‑‑‑Concurrent findings of fact by Courts below‑‑Shamlat Deh belonging to two specific tribes‑‑‑Dispute with regard to possession of suit‑land‑‑‑Both the Courts below were of the view that the possession was with the plaintiff and the defendants were not from any of the tribes‑‑‑Validity‑‑‑Defendants failed to point out any material to show that they belonged to the tribes having right in the land and that the Deputy Commissioner had given them any piece of land out of such Shamlat Deh‑‑High Court declined to interfere with such concurrent findings of both the Courts below‑‑‑Revision was dismissed in circumstances.

H. Saadullah Khan Mian Khel for Petitioners.

Khawaja Muhammad Khan assisted by Khuda Bakhsh Khan Baloch for Respondent.

Date of hearing: 5th April, 1999.

MLD 2001 PESHAWAR HIGH COURT 684 #

2001 M L D 684

[Peshawar]

Before Qazi Ehsanullah Qureshi, J

MUHAMMAD RIAZ‑‑‑Petitioner

versus

GOVERNMENT OF N.‑W.F.P., PESHAWAR and others‑-‑Respondents

Criminal Miscellaneous Petition No.825 of 2000, decided on 18th September, 2000.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 203‑‑‑Supervisory jurisdiction of High Court‑‑‑Petition under Art.203, Constitution of Pakistan (1973) required quick disposal in the larger interest of justice‑‑‑Suit of the .petitioner was sub judice before the Civil Court for the last more than six years‑‑‑Result of the application for violation of the status quo order was also awaited since the year 1994‑‑‑Judicial Officers were required not only to do justice but see that justice was done and they should win the confidence of people‑‑‑Trial Court was, therefore, directed to dispose of the civil suit expeditiously according to law by providing full opportunity to the parties concerned and to take notice of the violation of the Court order, if any, in accordance with law and take appropriate steps for administration of justice without further delay‑‑‑Petition was disposed of accordingly.

1988 PCr.LJ 2402 and 1988 CLC 986 ref.

Qazi Muhammad Jamil for Petitioner.

MLD 2001 PESHAWAR HIGH COURT 820 #

2001 M L D 820

[Peshawar]

Before Shahzad Akbar Khan, J

MUHAMMAD QASIM KHAN‑‑‑Petitioner

versus

YAR QAND ‑‑‑ Respondent

Criminal Miscellaneous No.285 of 1999, decided on 19th January, 2001.

Canal and Drainage Act (VIII of 1878)‑‑‑

‑‑‑‑S.70‑‑‑Criminal Procedure Code (V of 1898), Ss. 417 & 561‑A‑‑Quashing of orders‑‑‑Appeal against acquittal‑‑‑Competent forum‑‑Magistrate had dismissed the complaint and acquitted the accused‑‑‑District Magistrate on appeal by the complainant remanded the case to the Trial Court for fresh trial and this order was upheld by the Sessions Court in revision by the accused by means of the impugned order‑‑‑Validity‑‑‑Matter being the outcome of a private complaint, appeal against acquittal of accused by the Magistrate could lie to the High Court under S.417(2), Cr:P.C. and not before the District Magistrate‑‑‑Appeal before the District Magistrate being totally unwarranted by law, order passed by him was coram non judice‑‑‑Sessions Court had also failed to appreciate the legal position on, the subject and had wrongly agreed with the remand order‑‑‑Impugned orders were quashed accordingly.

Abdul Aziz v. The State and another 1978 PCr.LJ 260 and Nasir Khan and another v. The State 1991 PCr.LJ 19 ref.

Muhammad Alain for Petitioner.

Banaras. Khan for Respondent.

Tasleem Hussain for the State.

Date of hearing: 19th January, 2001.

MLD 2001 PESHAWAR HIGH COURT 841 #

2001 M L D 841

[Peshawar]

Before Justice Mian Shakirullah Jan, Chairman, Muhammad Aslam and Sayed Rehman, Members

Mst.HAFIZA BEGUM‑‑‑Appellant

versus

ABDUL SATTAR‑‑‑Respondent

Appeal No.T‑8 of 2000, decided on 22nd .December, 2000.

Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑‑‑‑S.41‑‑‑Professional misconduct‑‑‑Complaint against Advocate was that during pendency of civil suit filed by deceased husband of complainant, Advocate, who was opposite counsel in the case, had pursued the case as if he himself was a party in the litigation‑‑‑Validity‑‑‑Advocate being opposite counsel was within his right to defend the case of his client and also to fight for the rights of his client in the advancement of justice‑‑‑Complainant had contended that misconduct need not be the direct consequence of the professional duty of a counsel, but even if it was remotely connected with the professional duties, same would constitute a professional misconduct‑‑‑In absence of any professional or other misconduct against the Advocate case of professional misconduct was not made out against him in circumstances.

Mst. Surriya Bibi v. Sohail Khan, Advocate, Peshawar 1999 YLR 2315 and Muhammad Malik v. Fazal Karim 1999 MLD 935 ref.

Tariq Javed, Asstt. A.‑G. for the Government of N.‑W.F.P.

Appellant in person.

Respondent in person.

MLD 2001 PESHAWAR HIGH COURT 1089 #

2001 M L D 1089

[Peshawar]

Before Ijaz-ul-Hassan, J

NAZAR MUHAMMAD and another---Petitioners

versus

THE STATE and 3 others---Respondents

Criminal Miscellaneous Quashment No. 74 of 2000, decided on 30th October, 2000.

Criminal Procedure Code (V of 1898)---

----Ss. 156(3), 200, 202, 203, 204 & 561-A---Penal Code (XLV of 1860), S.379---Quashing of order passed by Judicial Magistrate---Magistrate after recording statement of the complainant under S.200, Cr.P.C. sent complaint to Tehsildar for inquiry and Tehsildar after conducting inquiry sent back the case with observation that a prima facie case had been made out against the accused and the Magistrate had directed police to register a case against the accused---Validity---Order for registration of case by the Magistrate was not warranted by law and was liable to be set aside because once a cognizance was taken under S.200, Cr.P.C. the Magistrate was required to adopt procedure of complaint case mentioned- in Ss.200 to 204, Cr.P.C. and could not refer the matter to the police under S.156(3), Cr.P.C.---Only course left open to the Magistrate under law was to proceed with the trial of the complaint himself---Order passed by the Magistrate was quashed in circumstances.

Ghulam Rasul v. The State 1979 SCMR 203 and Aziz-ur-Rehman and others v. The State and others PLD 1960 Dacca 631 ref.

Abdullah Khan Tanoli for Petitioners.

Sabir Hussan Tanoli for the State.

Qazi Salik Rauf for the Complainant.

Date of hearing: 20th October, 2000.

MLD 2001 PESHAWAR HIGH COURT 1096 #

2001 M L D 1096

[Peshawar]

Before Ijaz-ul-Hassan, J

AMMAD AKRAM---Petitioner

versus

SENIOR SUPERINTENDENT OF POLICE, ABBOTTABAD and 6 others---Respondents

Criminal Miscellaneous Quashment No.23 of 2000, decided on 27th October, 2000.

(a) Criminal Procedure Code (V of 1898)---

----Ss.154, 156, 169, 551 & 561-A---Penal Code (XLV of 1860), S.452--Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 22---Quashing of enquiry report---Senior Superintendent of Police on application. of the accused directed the Inspector Complaint Cell to conduct enquiry in the case of the accused---Inspector in his report found the accused innocent and on basis of said report case was sent to the Judicial Magistrate for its cancellation and to discharge the accused under S.169, Cr.P.C.---Complainant had sought to quash said inquiry report and subsequent orders for cancellation of case against the accused---Under provisions of Criminal Procedure Code, there was no scope for constitution of any Complaint Cell and the Cell had no competency to encroach upon the powers of the Court---Once the case was registered under S.154, Cr.P.C. the officer incharge of the police station was required to investigate the same under S.156, Cr.P.C.---Police had no jurisdiction to ask the Court for cancellation of any case or to release the accused under S.169, Cr.P.C. but police was bound to submit complete challan in the Court of competent jurisdiction for the trial of the accused and nothing more---Inquiry Officer of the Complaint Cell had no power to nullify the investigation of any criminal case conducted by or under the authority of officer incharge of the police station---Police had no authority to decide the case before its presentation before the competent Court:

(b) Criminal Procedure Code (V of 1898)---

----Ss. 169, 173, 249-A & 561-A---Penal Code (XLV of 1860), S.452--Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.22---Quashing of enquiry report---Enquiry and investigation of case---Police Officer, after conducting investigation when came to know that no sufficient evidence was available to justify the forwarding of the accused in custody of the Magistrate, he could only release the accused on his executing a bond with or without surety, but Investigating Officer was not empowered to omit the name of the accused from the challan---Powers under S.169, Cr.P.C. could only be exercised by the police during the course of investigation when the accused was in the custody of the police---Once the challan was submitted under S.173, Cr.P.C. the provisions under S.169 would not be attracted---Once the Magistrate had taken cognizance, he should have proceeded with the trial of the accused and if at any stage of the trial the Court had come to the conclusion that the charge was groundless and there was no possibility of the accused being convicted of the offence, the accused might have been acquitted under 5.249-A, Cr.P.C.---Inquiry report submitted by Inspector Complaint Cell in the case was of no consequence as there was no scope of constitution of any Complaint Cell under the Criminal Procedure Code---Inquiry report and subsequent order passed on the basis of said report, were quashed, in circumstances.

Muhammad Ayub Khan Tanoli for Petitioner.

Muhammad Younas Khan Tanoli, A.-G. for the State.

Syed Shabbir Hussain Shah for Respondents.

Date of hearing: 23rd October, 2000.

MLD 2001 PESHAWAR HIGH COURT 1306 #

2001 M L D 1306

[Peshawar]

Before Mian Muhammad Ajmal, J

Babu ABDULLAH and others‑‑‑Petitioners

versus

GHULAM MASOOD‑‑‑Respondent

Civil Revision No.27 of 1992, decided on 19th July, 1994.

Specific Relief Act (I of 1877)‑‑‑ .

‑‑‑‑Ss. 8 & 42‑‑‑Civil Procedure Code (V of 1908), O.XXI, Rr. 36, 100 & 5.115‑‑‑Suit for declaration and possession‑‑‑Execution of decree, objection to‑‑‑Suit was finally decreed in favour of petitioners up to Supreme Court‑‑Decree‑holders/petitioners, after the final adjudication, filed execution application and in execution proceedings an objection petition was filed by the judgment‑debtor wherein it was alleged that suit‑land being in possession of tenant‑at‑will, who was not party in the previous litigation, execution application filed by decree‑holders, was not maintainable and said tenant‑at-will being not party in the previous litigation, was not bound by the decree and he could not be dispossessed from the suit‑land‑‑‑Objection petition was finally dismissed‑‑‑ Tenant‑at‑will, on the very day of dismissal of said petition, filed objection petition alleging that he being tenant in the suit‑land and not party to suit, was not bound by the decree passed in favour of decree‑holder‑‑‑Tenant‑at‑will despite being fully aware of the litigation between the decree‑holder and judgment‑debtor right from the Trial Court up to the Supreme Court did not show his interest to become a party to the litigation to protect his rights‑‑‑Objection petition filed by respondent/tenant at‑will did not seem to be bona fide one, but had been filed in collusion with the judgment‑debtors as a device to defeat the decree obtained by the decree holder after protracted litigation of more than thirty years‑‑ Respondent/tenant‑at‑will being not an occupancy tenant, was bound by the decree passed in favour of decree‑holder and was liable to dispossession alongwith the judgment‑debtor.

AIR 1931 Mad. 534 ref.

S. Sajjad Hussain Shah for Petitioners.

S. Shabbir Hussain Shah for Respondent.

Date of hearing: 19th July; 1994.

MLD 2001 PESHAWAR HIGH COURT 1582 #

2001 M L D 1582

[Peshawar]

Before Mian Muhammad Ajmal, J

NABI‑UR‑REHMAN‑‑‑Petitioner

Versus

AZIZ‑UR‑REHMAN and another‑‑‑Respondents

Criminal Miscellaneous No.6 of 1999, decided on 27th September, 1999.

(a) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Provisions of S.497(2; Cr.P.C. have not left it to the discretion of the Court to withhold bail from a person accused of non‑bailable offence, but the bail has to be allowed to the accused as of right under the said provision of law, if the Officer Incharge of police Station or the Court taking cognizance of the matter comes ‑to a definite conclusion on consideration of the entire material that there are no reasonable grounds for believing that the accused has committed a non-bailable offence‑‑‑Without such finding by such officer or the Court the accused will not be released on ground of further inquiry under S.497(2), Cr.P.C. and if such a finding is recorded the accused cannot be denied the right of bail granted to him by the same provision.

Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 and Ibrahim v. Hayat Gul and others 1985 SCMR 382 ref.

(b) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)(5)‑‑‑Bail, cancellation of‑‑‑Officer Incharge of the Police Station or the Court taking cognizance of the matter had nowhere found that no reasonable grounds existed for believing that the accused has committed a non‑bailable offenceCourt in granting bail to the accused had not exercised its discretion in a judicial manner‑‑‑Bail allowed to the accused was cancelled, in circumstances.

Abdur Rauf Gandapur for Petitioner.

Asghar Khan Kundi for the Accused

Moazzam Jamil for the State.

Date of hearing: 27th September, 1999.

MLD 2001 PESHAWAR HIGH COURT 1712 #

2001 M L D 1712

[Peshawar]

Before Shahzad Akbar Khan and Qazi Ehsanullah Qureshi, JJ

ABIDULLAH‑‑‑Petitioner

Versus

CHIEF ELECTION COMMISSIONER, "ELECTION HOUSE", CONSTITUTION AVENUE, G‑5/2, ISLAMABAD and 5 others‑‑‑Respondents

Writ Petition No. 330 and Civil Miscellaneous No. 370 of 2001, decided on 16th March, 2001.

(a) North‑West Frontier Province Local Government Elections Ordinance (VI of 2000)‑‑‑

‑‑‑‑S.14(c)‑‑‑North‑West Frontier Province Local Government Elections Rules, 2000, R.16(2)‑‑‑Qualification for candidates‑‑‑Non‑enrolment in electoral roll of relevant ward as voter‑‑‑Effect‑‑‑Where a candidate was not enrolled as a voter in the electoral roll of the concerned ward, such candidate was not qualified to contest the election from that ward‑‑‑Nomination papers were rightly rejected by Returning Officer on such ground.

(b) North‑West Frontier Province Local Government Elections Ordinance (VI of 2000)‑‑‑

‑‑‑‑S.18‑‑‑Registration as voter‑‑‑Failure to get enrolled as voter in the time prescribed by Election Authority‑‑‑Effect‑‑‑Where a person whose registration of vote was omitted in the final list and he failed to apply within the given time despite vast publicity through Pakistan Television, Radio and National Daily/Weekly News prints, such person could not be considered voter for the current election.

‑‑‑‑S.14(c)‑‑‑North‑West Frontier Province Local Government Elections Rules, 2000, R.18‑‑‑Constitution of Pakistan (1973), . Art. 199‑‑Constitutional petition‑‑‑Nomination papers, rejection of ‑‑Candidate‑ was not enrolled as voter in the voters' list of the Union Council from where he intended to contest the election‑‑‑Plea raised by the candidate was that 411 the process by Election Authority had been complete and his name would be listed later on--‑Validity‑‑‑Candidate was not a qualified person to contest the election as the Election Commission had approved his name as a voter after the filing of his nomination paper and calling upon Election Schedule‑‑Where the candidate was not a voter at the relevant time, any subsequent entry did not .confer any right upon the candidate and given retrospectivity to become a qualified candidate‑‑‑High Court declined to interfere with the decision of Returning Officer which was upheld by the District Returning Officer‑‑‑Constitutional petition was dismissed in limine.

Muhammad Arif Khan for Petitioner.

Salahuddin Khan, Dy. A.‑G. alongwith Mian Gul Akhtar Khan, Deputy Election Commissioner, Peshawar for Respondents:

Date of hearing: 16th March, 2001.

MLD 2001 PESHAWAR HIGH COURT 1716 #

2001 M L D 1716

[Peshawar]

Before Ejaz Afzal Khan, J

MUHAMMAD SUBHAN and others---Petitioners

versus

MIR QADAM KHAN and others---Respondents.

Civil Revision No.751 of 1994, decided on 30th April, 2001.

(a) Transfer of Property Act (IV of 1882)---

----S. 54---Sale---When effective---Contention that sale before attestation of mutation or registration of deed could not be deemed to have any existence, was repelled on the ground that sale as defined means transfer of ownership in exchange for price paid or promised or part paid or part promised and has nothing to do with the attestation of mutation or registration of deed.

(b) Transfer of Property Act (IV of 1882)---

----S. 54---North-West Frontier Province Pre-emption Act (X of 1987), Ss.2(d) . & 13---Pre-emption suit---Sale---Non-attestation of mutation or registration of deed---Effect---Expression "sale" means transfer of ownership of immovable property in exchange for valuable consideration and the same has no nexus with the attestation of mutation or registration of deed as the same, more often than not, can be oral and thus, effective from the date when it is entered into---Want of attestation of mutation or registration of deed does not prevent a sale from being a sale though later on- it may be formalised or documented through attestation of mutation or registration of deed which, in fact and effect, only confirms the already existing fact or a fait accompli, i.e. sale.

----S. 13---Pre-emption suit ---Talb-e-Muwathibat---Making of such Talb before attestation of mutation or registration of sale-deed---Scope---Failure to make Talb-e-Muwathibat on attaining knowledge of sale before attestation of mutation or registration of sale-deed was not in conformity with the provisions of S.13, North-West Frontier Province Pre-emption Act,' 1987---' was required to make immediate demand (Talb-e-Muwathibat) in the sitting or meeting in which he came to know about the fact of sale, regardless altogether of attestation of mutation or registration of deed.

(d) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Pre-emption suit---Immediate demand (Talb-e-Muwathibat)---. Object and scope---Where despite receiving intelligence about sale through any source whatsoever, the pre-emptor keeps still and expresses no intention to pre-empt the sale, the assumption would be that his need to acquire the property through pre-emption has not sprung from his natural and spontaneous reaction but from an object other than the one underlying the spirit of pre-emption right---Immediate demand before demand through notice (Talb-i-Ishhad) and Court (Talb-e-Khasumat) has been made sine qua non for the enforcement of right of pre-emption.

(e) North-West Frontier Province Pre-emption Act (X of 1987)---

----S.13---Pre-emption suit---Failure to make immediate demand (Talb-e-, Muwathibat)---Pre-emptor on attaining knowledge of sale waited for 6/9 days for attestation of mutation and then the demand was made---Suit was dismissed by Trial Court and appeal before Lower Appellate Court also met the same fate---Validity---Immediate demand was a condition precedent for making demand through notice and Court---Where immediate demand was not made on attaining the knowledge of sale, both the Courts below had rightly dismissed the suit.

Ram Saran Lal and others v. Mst. Domini Kuer and others AIR 1961 SC 1747 and Zafar Ali v. Zainul Abiddin and another 1992 SCMR 1886 distinguished.

(f) North-West Frontier Province Pre-emption Act (X of 1987)---

---S. 13---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Pre-emption suit--?Witnesses of Talb-e-Muwathibat, failure to produce them in Trial Court--?Effect---Where making of the demand was alleged to have been made in the presence of witnesses, examination of the said witnesses could not be dispensed with---Failure to produce the witnesses of Talb-i-Muwathibat would give rise to adverse inference in terms of Art.129(g) of Qanun-e?Shahadat, 1984.

(g) Civil Procedure Code (V of 1908)---

----S. 115---Revision---Scope---Factual controversy---Concurrent findings of facts by the Courts below---Effect---Factual controversy could not be attended to by High Court in exercise of its revisional jurisdiction---In absence of any jurisdictional error or infirmity in the findings of the two Courts below, High Court declined to interfere therewith---Revision was dismissed in circumstances.

Abdul Aziz Kundi for Petitioners.

Raham Badshah Khattak for Respondents.

Date of hearing: 13th April, 2001.

MLD 2001 PESHAWAR HIGH COURT 1725 #

2001 M L D 1725

[Peshawar]

Before Ijaz‑ul‑Nassan., J

Sardar MUHAMMAD MUSHTAQ KHAN and 6 others‑‑‑Petitioners

Versus

Sardar MUHAMMAD PARVEZ KHAN and 14 others‑‑‑Respondents

Civil Revision No.243 of 1994, decided on 11th March 2001.

(a) Power of attorney‑‑‑

‑‑‑‑Cancellation of power of attorney‑‑‑Registered deed of revocation ‑‑‑ Date of effectiveness‑‑‑Where the power of attorney is revoked under registered deed of revocation, such deed becomes effective 'from the date of 'its registration‑‑‑Attorney cannot 'assert that he had no knowledge regarding cancellation bf the power of attorney executed in his favour.

(b) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S. 41‑‑Ostensible owner‑‑‑Protection of S.41 Act, 1882‑‑‑Power of attorney was revoked vide registered, revocation deed‑‑‑Effect‑‑‑Where property was transferred by the attorney after registration of revocation deed, the rights of transferees were not protected under S.41, Transfer of Property Act, 1882 as the transferees had not purchased the property from ostensible owner.

‑‑‑‑S. 41‑‑‑Transfer of property by ostensible owner‑‑‑Protection of S.41 of Transfer of Property Act, 1882‑‑‑Necessary conditions‑‑‑Transferor, for application of S.41 of Transfer of Property Act, 1882 should be ostensible owner; his ownership should be by consent, express or implied of the real owner; transfer should be made for consideration, and transferee has acted it good faith taking reasonable care to ascertain that transferor had power to transfer.

1992 MLD 1363 ref.

(d) Contract Act (IX of 1872)‑‑‑

‑‑‑‑Ss.186 & 188‑‑‑Power of attorney, execution of‑‑‑Duties of attorney‑‑ Attorney derives authority from principal with regard to his property either for its management or for alienations for a specific purpose Agent has to act within the framework of the deed, in his favour, which is depository of the intention, rights, liability and authority of parties and agent cannot transfer beyond its scope and, purview of its recitals‑‑‑Agent is expected in law to act for the benefit of the principal‑‑‑Conduct and performance of duty enjoined upon the attorney is subject to certain commutations and militations

(e) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. V1, R.17‑‑‑Amendment of pleadings‑‑‑Raising of new plea‑‑‑Scope‑‑Court allows amendment in order to do complete justice between the parties but the same is refused when it is aimed to change complexion of the suit or raises a new plea, (f) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Revision‑‑‑Concurrent findings of facts by the Courts below‑ Transfer of the suit property was made by the attorney after revocation of power of attorney vide registered deed‑‑‑Suit was concurrently dismissed by both the Courts below‑‑‑Validity‑‑‑Judgments and decrees passed by both the Courts below were not the result of misreading or non‑reading of evidence‑‑High Court declined to interfere with the judgments and decrees passed by the Courts below‑‑‑Revision was dismissed in circumstances.

AIR 1971 Madh. Pra. 191; AIR 1970 Mad. 76; 1994 CLC 1690; PLD 1997 Lah. 709; pLD 1996 Pesh. 86; 1997 SCMR 1811; PLD 1985 SC 341; 1994 SCAR 818; 1994 SCMR 826 and AIR 1938 Lah. 351 ref.

Haji Ghulam Basit for Petitioner. Fida Muhammad Khan for Respondents

Date of hearing: 10th April, 2001.

MLD 2001 PESHAWAR HIGH COURT 1731 #

2001 M L D 1731

[Peshawar]

Before Tariq Parvez, J

FIDA MUHAMMAD ‑‑‑‑Petitioner

Versus

THE STATE‑‑‑‑Respondent

Criminal Miscellaneous No.208 of 2000, decided on 4th September, 2000.

(a) Control of Narcotic Substances Act (XXV of 1997)‑‑

‑‑‑‑Ss. 9, 76, 74 & 73‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Preamble; Ss. 3 & 4‑‑‑Preamble of Prohibition (Enforcement of Hadd) Order, 1979 and that of Control of Narcotic Substances Act, 1997 would clearly show that their promulgation and enforcement was for different objects and achievements‑‑‑Notwithstanding provisions of S.76 read with S.74 of the Control of Narcotic Substances Act, 1997, the Prohibition (Enforcement of Hadd) Order, 1997 which was not repealed, was still holding the field‑‑‑Provisions of S.73 of Control of Narcotic Substances Act, 1997 had provided that nothing contained in the said Act would affect the validity of any law for the time being in force which had provided punishment not imposed by the said Act‑‑‑Principle of overriding effect of a later statute was to be applied where inconsistency was found in the law already enforced and the later statute.

2000 PCr.LJ 1222; 1999 PCr.LJ 63 and Rasool Bakhsh and others v. State PLD 1998 SC 177 ref.

(b) Interpretation of statutes‑‑‑

Overriding effect of a later Statute‑‑‑Applicability‑‑‑Principles.

‑‑‑‑S. 497‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c), 25 & 34‑‑‑Bail, grant of‑‑‑Allegation against the accused was that one kilogram of Charas was recovered from the side pocket of the shirt of the accused and nine kilograms was recovered from his residential house at his pointation‑‑‑One kilogram Charas could be kept in the pocket of a shirt could not be believed‑‑‑Allegation of recovery had created doubt which had taker. the case of the accused to be that of further enquiry‑‑‑Investigating Officer despite prior information, had searched the premises without obtaining search warrant and also without associating locals with the recovery proceedings‑‑‑Report in the case had been obtained from the Assistant Chemical Examiner to Government of Punjab, while the occurrence was alleged to have taken place within the jurisdiction of Police Station Haripur in Province of North‑West Frontier‑‑‑Legality and admissibility of report obtained , and prepared in the Province of the Punjab was subject to scrutiny‑‑‑Accused was ordered to be released on bail, in circumstances.

Saeed Akhtar Khan for Petitioner. Tariq Khan Kakar for the State.

Date of hearing: 4th September, 2000.

MLD 2001 PESHAWAR HIGH COURT 1759 #

2001 M L D 1759

[Peshawar]

Before Sardar Muhammad Raza, CJ

ZAHOOR AHMED ---Appellant

versus

ASIF HUSSAIN ---Respondent

Regular First Appeal No.11 of 1999, decided on 12th June, 2001.

(a) Civil Procedure Code (V of 1908)---

----O. XXXVII, R. 2 & Appendix B, Form No.4---Suit for recovery of amount on basis of Promissory Note---Leave to defend the suit---Delivery of notice to the defendant without copy of plaint---Effect---Notice/summons was not served on the defendant in person, but copy of said notice was delivered at his residence without annexing copy of the plaint with the notice---Service of notice without delivering the copy of plaint to the defendant, was in violation of R.2 of O.XXXVII, C. P.C-. ---Defendant, in circumstances, could not be punished and no limitation particularly with reference to alleged date of service would run against him.

PLD 1984 Kar. 252 and PLD 1998 Lah. 161 ref.

(b) Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3---Suit for recovery of amount---Provisions of O.XXXVII, C.P.C. which called for summary proceedings, was a stringent law against the defendant and the harsher a law against the defendant or an accused, the more stringently should be the provisions of law construed against the plaintiff or the prosecution.

----O.XXXVII, Rr. 2 & 3---Limitation Act (IX of 1908), S.5---Suit for recovery of loan on the basis of Promissory Note---Leave to defend the suit--Delay, condonation of---Defendant was not served personally, but copy of the notice was delivered at his residence without annexing copy of the plaint therewith---Petition for leave to defend the suit filed by the defendant was rejected on ground that same was filed beyond the period of ten days and application of defendant filed by him under S.5 of Limitation Act, 1908 for condonation of delay was also not considered by the Court ---Validity--Service of notice on the defendant, in circumstances, being in violation of O.XXXVII, R.2, C.P.C., Court should either not have considered the petition for leave to defend the suit to be time-barred or should have condoned the delay under S.5, Limitation Act, 1908, which was applicable to the case of defendant under O.XXXVII, R. 3(3), C.P.C.---Case requiring recording of a thorough and detailed evidence, defendant in circumstances must have been allowed the leave to defend the suit.

Abdul Shakoor Khan for Appellant.

Qazi Gul Faraz for Respondent.

Date of hearing; 12th June, 2001.

MLD 2001 PESHAWAR HIGH COURT 1765 #

2001 M L D 1765

[Peshawar]

Before Shahzad Akbar Khan, J

KASHMIR‑‑‑Petitioner

versus

AMIR BAHADER and others‑‑‑Respondents

Civil Revision No.3 of 1955, decided on 11th May, 2001.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.96 & O.I, R.9‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Appeal‑‑Impleading of necessary parties beyond limitation ‑‑‑Condonation of delay‑‑‑Suit was dismissed by Trial Court and all the legal heirs of the defendant were not arrayed in appeal before Appellate Court‑‑‑Application for impleading the legal heirs of the deceased defendant as respondents was filed beyond the period of limitation‑‑‑Appellate Court dismissed the appeal‑‑Contention of the plaintiff was that the names of the legal heirs to be impleaded as respondents were not legible on the copy of judgment passed by the Trial Court‑‑‑Validity‑‑‑Mere illegibility of the part of the copy of judgment containing names of the legal heirs of the deceased defendant was no ground for curing the legal infirmity in appeal‑‑‑Where delay in filing a properly constituted appeal had created a valuable right in favour of the respondents, the same could not be taken away unless the appellant had come forward with application for condoning the delay by pleading sufficient cause‑‑‑Judgment and decree passed by Appellate Court did not suffer from any legal infirmity‑‑‑high Court declined to interfere with the judgments and decrees passed by both the Courts below.

1994 SCMR 1134 rel.

Said Muhammad and others v. M. Sardar and others PLD 1989 SC 532 ref.

(b) Limitation Act (IX of 1908)‑‑

‑‑‑‑S.5‑‑‑Lirnitative lapses‑‑‑Effect‑‑‑Law of limitation produces an effect of extinguishment of a right of a party when limitative lapses occur and no sufficient cause for such lapses, delay or time‑barred action is shown by the defaulting party.

M. Alain assisted by Ghulam Ali for Petitioners.

Respondent No.1 and as Attorney for Respondents Nos.2 to 11 in person.

Date of hearing: 11th May, 2001.

MLD 2001 PESHAWAR HIGH COURT 1778 #

2001 M L D 1778

[Peshawar]

Before Mian Muhammad Ajmal, CJ

SARENA HOTEL---Petitioner

versus

SECRETARY FINANCE, GOVERNMENT OF N.W.F.P., PESHAWAR and

others---Respondents

Civil Revision No.217 of 1995, decided on 13th March, 2000.

(a) North-West Frontier Province Finance Act (II of 1975)---

----S. 8 [Since deleted by S.4 of North-West Frontier Province Finance Act (I of 1985)]--.-Provincially Administered Tribal Areas (Application of Laws) Regulation (I of 1985), R.3---Realization of the tax and development cess from hotels in Provincially Administered Tribal Areas ---Validity--Provisions of S.8 of North-West Frontier Province Finance Act, 1975 whereunder Authority had levied tax as Development Cess on first and second class hotels in the North-West Frontier Province were not extended to hotels in Provincially Administered Tribal Areas---Section 8, was subsequently deleted but despite its deletion and non-extension to the Provincially Administered Tribal Areas the Authority continued realizing tax and development cess from hotels situated therein---Judgment and decree passed by Appellate Court against judgment and decree of the Trial Court, was set aside and that of the Trial Court whereby Authority was prohibited to demand and realize was restored.

(b) Interpretation of statutes---

---- Notifications and Regulations could not be given retrospective effect specially the law relating to the levy of taxes and cesses.

---- Substantive and revenue law ---Retrospectivity---Principles---Statutes were to be construed prospectively unless it was otherwise specifically provided in the statute itself, but that construction would apply to remedial statutes only---Wherever substantive or revenue laws were made, they would take effect from the date they were enacted and would affect future transactions only and not the past ones.

Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan 1991 SCMR 1652 ref.

Q. Muhammad Anwar for Petitioner.

Abdul Sattar Khan, Addl. A.-G. for Respondents.

Date of hearing: 13th March, 2000.

MLD 2001 PESHAWAR HIGH COURT 1785 #

2001 M L D 1785

[Peshawar]

Before Qazi Muhammad Farooq, CJ

ZAHIR SHAH and others‑‑‑Petitioners

versus

BAHADAR KHAN and others‑‑‑Respondents

Civil Revision No. 138 of 1996, decided on 24th May, 1999.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 11‑‑‑Dismissal of suit on point of res judicata‑‑‑Suit filed by plaintiffs in respect of landed property was dismissed by the Trial Court on the ground that it was hit by the principle of res judicata and Appellate Court below upheld the judgment of Trial Court‑‑‑Trial Court had dismissed the suit on the point of res judicata even without framing any preliminary issue in that respect and jurisdiction‑‑‑Concurrent judgment of Courts below was set aside by High Court in exercise of its revisional jurisdiction and case was remanded to be decided afresh after framing preliminary issues with regard to jurisdiction of Court and res judicata.

Gul Sadbar Khan for Petitioners.

Fatah Muhammad Khan for Respondents.

Date of hearing; 12th April, 1999.

MLD 2001 PESHAWAR HIGH COURT 1790 #

2001 M L D 1790

[Peshawar]

Before Talaat Qayyum Qureshi, J

MISKEEN and others‑‑‑Petitioners

versus

Mst. KHUDEJA alias MIRZA NOOR and others‑‑‑Respondents

Civil Revision No. 348 of 1994, decided on 19th June, 2000.

(a) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Limitation Act (IX of 1908), Art.120‑‑‑North‑West Frontier Province Tenancy Act (XXV of 1950), Ss.4 & 4‑A‑‑‑Suit for declaration‑‑Limitation‑‑‑Suit was filed after 44 years from the attestation of dispute6 mutation‑‑‑Suit which under Art. 120 of Limitation Act, 1908 was to be filed within a period of six years was hopelessly barred by time‑‑‑In absence of any explanation either in plaint or in the statement of the plaintiffs as to why the suit was filed after lapse of 44 years, same was rightly dismissed being barred by time.

(b) North‑West Frontier Province Muslim Personal Law (Shariat) Application Act (VI of 1935)‑‑‑

‑‑‑‑S. 3‑‑‑Succession‑‑‑Custom as the rule of decision‑‑‑Validity‑‑‑With coming into force of North‑West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935, custom was no longer the rule of decision‑‑‑If succession opened after 6th December, 1935 the rule of decision was to be Muslim Personal Law because N.W.F.P. Muslim Personal Law (Sharait) Application Act, 1935 was to be given retrospective effect‑‑‑Where a dispute came before a Court of law with respect to succession to the estate of the deceased Muslim the deceased would be deemed to have died under the domain of Islamic law even if the death had taken place before the coming into force of the Act of 1935‑‑‑Effect of the Act was that it had altered the course of succession insofar as to make the ordinary rule of Islamic Law applicable and to exclude the operation of custom‑‑‑Where the succession opened after the Act came into force, a party could not rely upon any decision based upon the rule of custom given in his favour before the Act came into force and the succession would be governed by rule of Islamic law, but the claim could only be entertained if the law of limitation offered no impediment‑‑‑If claim to the estate of deceased was preferred under Muslim Personal Law (Shariat) Application Act, 1935 and was barred under the law of limitation, such bar would prevent the claim from being entertained.

Habibullah Jan and 3 others v. Muhammad Hassan Khan and 6 others PLD 1991 SC 93 and Rehman Shah and others v. Nasrullah and others 1999 MLD 249 ref.

Shaukat Ali Khan for Petitioner.

Ch. Bashir Ahmad for Respondents.

Dates of hearing: 29th May and 2nd June, 2000.

MLD 2001 PESHAWAR HIGH COURT 1804 #

2001 M L D 1804

[Peshawar]

Before Talaat Qayyum Qureshi and Malik Hamid Saeed, JJ

Chaudhry ABDUL RAUF MITHU‑‑‑Petitioner

Versus

CHAIRMAN, SARHAD DEVELOPMENT AUTHORITY, PESHAWAR and 4 others‑‑‑Respondents

Writ Petition No. 37 of 1994, decided on 15th March, 2001.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Allotment of plot ‑‑‑Interest‑‑‑Non-payment of price of such plot to the Authorities within stipulated time‑‑Interest, charge of‑‑‑Authorities included certain amount of interest in the price of the plot as the payment was not made in the due course of time‑‑Validity‑‑‑High Court declined to allow the payment of interest as the same had been declared to be un‑Islamic by the Supreme Court.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition ‑‑‑Pendency of petition ‑‑‑Interest‑‑Petitioner failed to make the payment of plot allotted to him within stipulated period‑‑‑Authorities alongwith the original price included certain amount of interest for the period during, which the petition was pending before High Court‑‑‑Validity‑‑‑Petitioner could not be penalized for the period for which his petition was pending for decision.

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Contractual obligation‑‑Maintainability‑‑‑ Cancellation of allotment of plot by the Authority to the petitioner‑‑‑Contention of Authorities was that since petitioner intended to enforce contractual obligation, petition was not maintainable ‑‑‑Validity‑‑Petitioner had challenged the validity of cancellation letter whereby plot allotted to him was cancelled‑‑‑Where the cancellation by the Authorities pertained to the performance of statutory obligation and functions of the Authorities, the act of the Authorities was susceptible to exercise of Constitutional jurisdiction of High Court‑‑‑When State functionary entered into a contract with a private citizen/limited company, any serious contravention of Rules or instructions would be amenable to Constitutional jurisdiction of High Court‑‑‑Matter before the Court in the present case simply pertained to the cancellation of allotment of plot and petitioner did not want to enforce contractual obligation‑‑‑Petition was maintainable in circumstances.

Pakistan Medical Association, Karachi v. Government of Sindh and 5 others 1979 CLC 382; Haji Noor Muhammad and another v. K.D.A. and others PLD 1975 Kar. 373 and Rashid A. Khan v. West Pakistan Railway Board through its Chairman, Lahore and another PLD 1973 Lah. 733 ref.

(d) Constitution of Pakistan (1973)‑‑

‑‑‑‑Arts. 25 & 199‑‑‑Constitutional petition‑‑‑Equality of citizens‑‑Discrimination‑‑‑Cancellation of plot‑‑‑Petitioner refused to deposit the balance price of plot allotted to him on the ground that the Authorities had discriminated him from others as he was charged with higher price than the respondent‑‑‑Authorities cancelled the allotment of plot in the name petitioner for non‑deposit of remaining lease money of the plot‑‑‑Validity‑‑Where location of the plots of both the parties were different and terms and conditions of agreement of both the parties were also different, the petitioner had not been discriminated in charging with higher rate of lease money‑‑‑Plot already allotted to the petitioner for which part payment had been made by the petitioner was cancelled without lawful authority and the act of the Authorities was illegal and of no legal effect, High Court directed the petitioner to deposit the remaining lease money and order of Authorities cancelling the plot was set aside in circumstances.

Dr. Tariq Nawaz and another v. Government of Pakistan through the Secretary, Ministry of Health, Government of Pakistan, Islamabad and another 2000 SCMR 1956 distinguished.

Muhammad Sardar Khan for Appellant.

Jehanzab Rahim for Respondent.

Date of hearing: 2nd February, 2001.

MLD 2001 PESHAWAR HIGH COURT 1867 #

2001 M L D 1867

[Peshawar]

Before Abdur Rauf Khan Lughmani, J

Mst. BIBI AISHA and 3 others‑‑‑Petitioners

Versus

ALI MUHAMMAD and 37 others‑‑‑Respondents

Civil Revision No.44 of 1998, decided on 8th October, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.114 & O.XLVII, R.1‑‑‑Review‑‑‑Jurisdiction‑‑‑Scope‑‑-Court which passes a decree is authorized to adjudicate upon application for review of a decree or order upon discovery of new and important matter or evidence or existence of a clerical or arithmetical mistake or error apparent on the face of decree.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 114, 152 & O.XLVII, Rr. 1, 2‑‑‑Review of judgment and decree‑Clerical mistake‑‑‑Correction‑‑‑Jurisdiction of Trial Court‑‑‑Judgment and 'decree were passed by Trial Court declaring the plaintiffs entitled to 1/5th share each in the suit property‑‑‑Words "each to 1/5th share" were omitted in the judgment and decree‑‑‑Trial Court, on review of the judgment and decree, corrected the mistake‑‑‑Appellate Court allowed appeal filed by the defendant and dismissed the suit of the plaintiffs‑‑‑Validity‑‑‑Omission was a clerical and arithmetical mistake which tantamount to an error apparent on the face of the decree‑‑‑Correction of such mistake by Trial Court was not in contravention of provisions of O.XLVII, R.2, C.P.C.‑‑‑Trial Court had rightly accepted the review petition to correct the error which was apparent on the face of record as no appeal was competent‑‑‑Judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored.

Chakar Khan v. Commissioner, Sibi Division 1979 CLC 829 ref.

‑‑‑‑O.XLVII, R.4‑‑‑Review application‑‑‑Providing opportunity of hearing to parties‑‑‑Effect‑‑‑Where parties were given full opportunity of hearing before deciding matter of review, provisions of O.XLVII, R.4., C.P.C. were not contravened.

Gohar Zaman Kundi for Petitioners.

Baji Saadullah Khan Mian Khel for Respondents.

Date of hearing: 8th October, 1999.

MLD 2001 PESHAWAR HIGH COURT 1890 #

2001 M L D 1890

[Peshawar]

Before Ijaz‑ul‑Hassan, J

ROSHAN DIN and another‑‑‑Petitioners

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No.70 of 2001, decided on 18th June, 2001.

(a) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Bail, grant of‑‑‑Principle‑‑‑One accused person cannot be kept in jail as a hostage for the arrest of another.

(b) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), S. 302/34‑‑‑Bail, grant of‑‑Further inquiry‑‑‑Mid‑night occurrence Identification of the accused persons highly doubtful‑‑‑No overt act was assigned to the accused persons and they were only shown to be present at the time of occurrence‑‑‑Statement of prosecution witnesses were contradictory‑‑‑Contention of the prosecution was that as the main accused had not yet been arrested, therefore, the arrested accused persons were not liable to concession of bail ‑‑‑Validity‑‑Whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail‑‑Better to keep an accused person on bail than in the jail, during trial----Case of the accused person was within the mischief of S.497(2), Cr.P.C. for further inquiry‑‑‑Bail was allowed in circumstances.

Shafaqat alias Gunga and 2 others v. The State 1994 SCMR 1680; Muhammad v. The State 1998 SCMR 454 and Zahid Shah v. The State 2001 PCr.LJ 134 ref.

Qazi Shamsud Din for Petitioners.

Muhammad Ayub Khan, Dy. A G for the State.

Gul Muhammad Khan for the Complainant.

Date of hearing: 18th June, 2001.

MLD 2001 PESHAWAR HIGH COURT 1922 #

2001 M L D 1922

[Peshawar]

Before Ijaz-ul-Hassan, J

FAZAL-UR-REHMAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 127 of 2001, decided on 25th Jane, 2001.

(a) Control of Narcotic Substances Act (XXV of 1997)---

----Ss. 9 & 25---Criminal Procedure Code (V of 1898), S.103---Recovery--- Contention that mandatory provisions of. S.103, Cr.P.C. had not been complied with and no independent witness had been associated with the recovery which had made the transaction doubtful, had no force, as recovery had been made in terms of S. 25 of Control of Narcotic Substances Act, 1997.

(b) Control of Narcotic Substances Act (XXV of 1997)---

----S-9---Criminal Procedure Code (V of 1898), S.497---Bail, grant of--Recovery of Charas weighing 1040 grams---Police Officials as recovery witnesses---Narcotics of huge quantity was recovered from the sole possession of accused---Recovery memo. was prepared which was witnessed by two police officials having no enmity with the accused regarding false implication---Every case had got its own circumstances and facts and the bails were granted under those particular circumstances and except broad principles laid down by superior Courts, no other instance or case was attracted and could not be a deciding factor for the purpose of disposing of a bail application---Prosecution had brought sufficient material on the record which, prima facie, connected the accused with the guilt---Bail was refused in circumstances.

Hadi Bux alias Hadoo v. The State 2000 PCr.LJ .714 and Muhammad Ashraf v. The State 2000 PCr.LJ 917 ref.

Muhammad Muzaffar Khan Swati for Petitioner.

Muhammad Ayub Khan, Dy. A.-G. for the State.

Date of hearing: 25th June, 2001.

Shariat Court Azad Kashmir

MLD 2001 SHARIAT COURT AZAD KASHMIR 1169 #

2001 M L D 1169

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

NAZAKAT PARVEEN‑‑‑Appellant

versus

IKHLAQ AHMAD‑‑‑Respondent

Shariat Civil Appeal No.5 of 2000, decided on 13th April, 2001.

(a) Azad Jammu and Kashmir Family Courts Act, 1993‑‑‑

‑‑‑‑Ss. 3, 5 & Sched., 7,11 & 17‑‑‑Suit for dowry‑‑‑Establishment of Family Court‑‑‑'Proceeddings of civil , nature' and 'proceedings before Family Court' ‑‑‑Distinction and purpose‑‑‑Family Courts were established for the expeditious settlement and disposal of disputes relating to marriage and other family affairs and special procedure was also provided to achieve the object‑‑‑Provisions of Qanun‑e‑Shahadat, 1984 and Code of Civil Procedure, 1908 were not trade applicable to the proceedings before the Family Court‑‑Difference between the proceedings of civil nature and the proceedings before a Family Court had to be taken into consideration at, the time of disposal of disputes and matters connected with the family matters‑‑‑Method of institution of suit and recording of the evidence was altogether different from the cases instituted in the Civil Courts‑‑‑Evidence adduced before a Family Court could not be evaluated and appraised in the manner it was appreciated in cases presented under Code of Civil Procedure‑‑‑Plaintiff, in the present case, had appended list of her dowry as well as the receipts in respect thereof with her plaint and had also tendered the documents in her statement recorded by the Family Court and she was cross‑examined in detail‑‑‑Such documentary evidence produced by the plaintiff could not be ignored or discarded for the mere reason that the list of dowry and receipts thereof could not be exhibited.

1981 CLC 1055 and 1986 CLC 770 ref.

(b) Azad Jammu and Kashmir Family Courts Act, 1993‑‑‑

‑‑‑‑S.5 & Sched.‑‑‑Suit for dowry‑‑‑Plaintiff (wife) by producing oral as well as documentary evidence on record had proved that dowry was in possession of the defendant‑‑‑All the witnesses produced by the plaintiff had corroborated her version and witnesses remained firth in cross‑examination‑‑Defendant (husband) had himself admitted that some dowry was given to the plaintiff‑‑‑Claim of the plaintiff having stood proved by sufficient material and cogent evidence, Court below was not justified to dismiss her suit‑‑‑Court below having failed to appreciate evidence produced on record in its true perspective, its judgment of dismissing suit was set aside.

‑‑‑‑Arts. 113, 132 & 133‑‑‑Acceptance of statement‑‑‑When the statement of witness was not challenged in the cross‑examination, it would be legally proved to have been accepted by the opposite‑party.

PLD 1995 SC (AJ&K) 41 and 1997 MLD 2013 ref.

M. Riaz Alam for Appellant.

Kamran Tariq for Respondent