MLD 2002 Judgments

2002 M L D 11

[N.‑W.F.P. Bar Council Tribunal]

Before Justice Mian Shakirullah Jan, Chairman and

Muhammad Alam Khan, Member, QAMAR ZAMAN SHINWARI‑‑‑Petitioner

Versus

S. NADIR SHAH GILLANI, ADVOCATE, KOHAT‑‑‑‑Respondent

Complaint No.T/3 of 1994, decided on 25th March, 2001.

Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑‑‑‑S.41‑‑‑Professional misconduct‑‑‑Complaint of professional misconduct against an Advocate‑‑‑Complainant .had alleged that Advocate was liable to be removed from legal practice as he had committed professional misconduct‑‑‑Allegation against the Advocate was that he secured law degree and completed apprenticeship period of six months during terms of his Government service‑‑‑Advocate on the direction of the Disciplinary Committee of Pakistan Bar Council resigned from his job and his resignation was accepted by the Authority with retrospective effect‑‑‑After resignation of Advocate from his Government job, factual position had materially changed and grievance of the complainant had almost been redressed‑‑‑Advocate was exonerated and disciplinary proceedings pending against him were filed.

Ishtiaq Ibrahim, Asstt. A.‑G. for the Government.

Complainant in person.

Respondent in person.

2002 M L D 431

[N.-W.F.P. Bar Council Tribunal]

Before Justice Mian Shakirullah Jan, Chairman, Muhammad Alam Khan and Qaiser Rasheed, Members

MUHAMMAD KKAN---Complainant

versus.

ANWAR BA-IG, EX-ADVOCATE MINGORA, SWAT---Respondent

Civil Miscellaneous Nos. 1 and 2 of 2000 in T-22 of. 1997, decided on 11th May, 2001.

Legal Practitioners and Bar Councils Act (XXXV of 1973)---

----S.41---Professional misconduct---Ex parte order, setting aside of--­Delay, condonation of---Disciplinary Committee initiated proceedings against the Advocate and after recording evidence and taking into consideration the Material on the record, referred the matter to the Tribunal for final decision---Advocate despite having knowledge of proceedings against him had failed to appear before the Tribunal even on the adjourned date of hearing---Tribunal by its ex parte order, finding the Advocate guilty of professional misconduct, removed him immediately from the profession imposing on him heavy cost$--­Application of the Advocate for setting aside the ex parte order was dismissed as same was time-barred and no sufficient explanation or plausible cause for non-appearance was given---Advocate had full knowledge of the proceedings against him which were disposed of by the Tribunal by a well-reasoned judgment on merits taking into consideration, unimpeachable documentary evidence on record---Once it was proved that the Advocate had the knowledge of the proceedings against him, 'then the due service or otherwise, would lose its importance---Application for setting aside ex parte order, besides being without any merit was also barred by time---Application was dismissed accordingly.

Salima Begum and others v. Mst. Sardaran Bibi and others PLD 1995 SC 406; Chaudhry Ghulam Ghaus v. Saifullah. and others 2001 SCMR 159; Hadi Bukhsh v. Additional District Judge and others 1998 CLC 610; `Zafar-ul-Haq v. Waris lqbal and others PLD 1979 Lah. 793 and M. Usman and others v. Ghulam Qasim Khan and others 1982 CLC 881 ref.

Muhammad Latif for Respondent. Tariq Javed, A.A.-G., for the Government.

Gut Khan, Superintendent (Legal) on behalf of University of Peshawar.

Rahim-ur-Rehman, one of the Complainant in person.

Date of hearing: 11th May, 2001.

2002 M L D 1316

[N.W.F.P. Bar Council Tribunal]

Before Chief Justice Mian Shakirullah Jan, Chairman, Muhammad Alam and Qaiser Rashid, Members

IFTIKHAR AHMAD, ADVOCATE‑‑‑Complainant

Versus

ABDUL RAZIQ, ADVOCATE‑‑‑Respondent

Complaint No. T/17 of 2001, decided on 11th January, 2002.

(a) Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑‑‑‑S.41‑‑‑Pakistan Legal Practitioners and Bar Councils Rules, 1976, 8.157 & Chap. XII‑‑‑Cannons of Professional Conduct and Etiquette of Advocates‑‑‑Advocate, a prosecution witness, appeared in the case as counsel of the complainant‑‑‑Complainant in the F.I.R. not only charged all the accused persons for criminally intimidating him but the respondent and his other brother were also criminally intimidated by the accused persons‑‑‑All the three brothers were the victims of the assault and. all the accused , were the assailants‑‑‑Allegation against the respondent was that he being a prosecution witness had moved application for cancellation of bail granted to the accused persons by the Court‑‑‑Position of the respondent in the present case was also that of the complainant being the victim of the assault and he could move the bail cancellation application, even in his own name as the complainant of tile occurrence‑‑‑Respondent refrained to appear as witness for the prosecution and pit was on the application of the defence counsel, that he was called as a Court‑witness, which compelled the respondent to appear before the Court and surrender to its jurisdiction, which was not a voluntary appearance as witness for the prosecution‑‑‑No evidence was available on the record, that after statement of the respondent was recorded as Court‑witness, he ever, appeared as a counsel in the case‑‑­Plea raised by the present complainant was that the act of the respondent was a professional misconduct‑‑‑Validity‑‑‑No case, of professional misconduct had been made out against the respondent‑‑‑Complaint was dismissed in circumstances.

Mst. Razia Begum v. Sardar Muhammad Ishaq, Advocate 1990 MLD 1441 and Muharaj‑Sita‑Ram Pujori v. Alim‑ud‑Din NLR 1982 UC 601 distinguished.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑S. 193‑‑‑False evidence‑‑‑Contradictions in cross‑examination‑‑­Effect ‑‑‑Contradiction of a witness does not attract the rigours of S.193, P.P.C.

Petitioner in person.

S. Masoud Kausar for Respondent.

2002 M L D 1338

[N.W.F.P. Bar Council Tribunal]

Before Justice Muhammad Qaim Jan Khan, Chairman, Muhammad Alam and Syed Rehman Khan, Members

SAEED ANWAR ‑‑‑ Complainant

Versus

GOHAR REHMAN KHATAK and another‑‑‑Respondents

Civil Miscellaneous No.4 in Complaint No.T/16 of 2001, decided on 6th April, 2002.

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

‑‑‑O.IX, R.6‑‑‑Ex parte, proceedings‑‑‑Effect‑‑‑When a person is proceeded against ex parte, that person can join proceedings at any stage of the case.

Aziz Ullah and others v. Arshad Hussain and others PLD 1975 Lah. 879 ref.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Arts. 164 & 181‑‑‑Civil Procedure Code (V of 1908), O.IX, R.7‑‑‑Ex parte proceedings, setting aside of‑‑‑Limitation‑‑‑Where ex parte proceedings had not culminated into a final order and decree, the provisions of Art.164 of the Limitation Act, 1908, were not applicable rather the residuary Art. 181 of the Limitation Act, 1908, was to apply.

Messrs Rehman Weaving Factory v. Industrial Development Bank of Pakistan PLD 1981 SC 21 rel.

(c) Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑‑‑‑S. 45‑‑‑Ex parte proceedings, setting aside of‑‑‑Jurisdiction of Bar Council Tribunal‑‑‑Respondent was proceeded against ex parte by the Disciplinary Committee of the Provincial Bar Council and the matter was referred to the Tribunal for final adjudication‑‑‑After receipt of the notice from the Tribunal, the respondent unnecessarily sought adjournments and finally submitted application for setting aside the ex, parte proceedings initiated by the Disciplinary Committee ‑‑‑Validity‑‑­Where the respondent had unnecessary sought adjournments and at a very belated stage submitted the present application, the Tribunal following the principle that decision should be on merits to avoid condemning the respondent unheard, set aside the ex parte proceedings.

Miss Mussarat Hilali, Addl. A.‑G. for the Government of N.W.F.P.

Saeed Anwar along-with Atif Ali Khan, Advocate.

Gohar Rehman Khatak and Tila Muhammad along-with Subhan Ullah, Advocate.

2002 M L D 1375

[N.‑W.F.P. Bar Council Tribunal]

Before Justice Muhammad Qaim Jan Khan, Chairman, Muhammad Alam and Syed Rehman Khan, Members

MUHAMMAD IRSHAD‑‑‑Complainant

versus

MUHAMMAD SIDDIQUE HAIDER QURESHI‑‑‑Respondent

Case O.T. 20 of 2001, decided on 6th April, 2002.

(a) Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑S.43‑‑‑Pakistan Legal Practitioners and Bar Councils Rules, 1976; R.173‑‑‑Professional misconduct‑‑‑Issuance of legal notice intimating order of Court‑‑‑‑ Allegation against the respondent wail that he being counsel against the complainant, intimated the Immigration Authorities and also informed the foreign embassy about the order of Family Court whereby, the complainant was restrained from leaving the country during the proceedings‑‑‑Validity‑‑‑Respondent had only communicated the order passed by the Family Court, who being officer of the Court was well within his right to send notice and application on behalf of and under the instruction of his clients‑‑‑Only embargo placed on the acts of an Advocate under R.173 of the Legal Practitioners and Bar Councils Rules, 1976, was that he could not communicate with nor could appear before a public .officer without first disclosing his identity as an Advocate‑‑‑Respondent in the present case, 'had duly disclosed his identity as an Advocate‑‑‑Notice was on the letter head pad of the respondent and it was specifically mentioned that the communication of the order of the Family Court to the concerned officers was an act purely under the instructions of his client‑‑‑Tribunal of the Bar Council concluded that no case of professional misconduct was made out against the respondent‑‑‑Complainant was dismissed in circumstances.

Mst. Hafiza Begum v. Abdul Sattar, Advocate 2001 MLD 841 and Major Muhammad Arif v. Sardar Bahadar and others 1998 CLC 1875 rel.

(b) Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑‑‑‑S.45‑‑‑Jurisdiction of Tribunal‑‑‑Scope‑‑‑Questioning the legality or otherwise of the judgment passed by Family Court before Provincial Bar Council Tribunal‑‑‑Validity‑‑‑Such question is outside the domain of the Tribunal.

Miss Mussarat Hilali, Addl. A.‑G. for the Government of N.‑W. F. P.

Hussain Bakhsh as Special Attorney for the Complainant.

Syed Safdar Hussain for Respondents.

2002 M L D 1598

[N.‑W.F.P. Bar Council Tribunal]

Before Justice Muhammad Qaim Jan Khan, Chairman, Muhammad Alam and Saeed Akhtar, Members

Haji ROZI GUL‑‑‑Appellant

versus

ATTA ULLAH KHAN, ADVOCATE, DISTRICT COURTS‑‑‑Respondent

Appeal No.T‑A‑21 of 2001, decided on 11th May, 2002.

Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑‑‑‑Ss. 43 & 45‑‑‑Professional misconduct‑‑‑Spoiling of case of client‑‑­Complainant alleged that as the accused counsel had spoiled his cases, so strict legal action should be taken against him‑‑‑Complainant had not proved on record that the accused counsel had ever attempted to spoil his case‑‑‑Appeal was dismissed in circumstances.

Appellant in person.

Miss Musarrat Hilali, A.A.‑G.

2002 M L D 1603

[N.‑W.F.P. Bar Council Tribunal]

Before Justice Muhammad Qaim Jan Khan, Chairman, Muhammad Alam Khan and Saeed Akhtar, Members

AZIM KHAN‑‑‑Appellant

versus

ASHFAQ HUSSAIN and 2 others‑‑‑Respondents

Appeal No.T‑A‑24 of 2001, decided on 11th May, 2002.

(a) Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑‑‑‑Ss.41, 42 & 45‑‑‑Professional misconduct ‑‑‑Compounding of offence‑‑‑Compromise between the parties‑‑‑Validity‑‑‑Where allegations contained in the complaint and proceedings initiated by the lower forum were with respect to misconduct of Advocate, the same could not be patched up by way of compromise‑‑‑Once misconduct was alleged and proved on the record, the withdrawal or compromise of the case did not wash away the stigma of professional misconduct‑‑‑Complaint was not allowed to be compounded in circumstances.

Muhammad Amin v. M. Asghar Khokhar, Advocate 1992 CLC 1556; Irshad Khan v. Gohar Rahman Khatak, Advocate 2000 MLD 1264; Wajid Ali v. Zafar Khalil Advocate 2000 MLD 1275 and Ali Rehman v. Zaheer‑ud‑Din Baber, Advocate 2001 MLD 895 ref.

(b) Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑‑‑‑Ss.41, 42 & 45‑‑‑Professional misconduct of Advocate‑‑‑Receiving of money to secure job to, the complainant‑‑‑Return of amount to the complainant‑‑‑Accused counsel denied receiving any amount directly from the complainant but admitted that the payment was made to one of their friend for the purpose‑‑‑Disciplinary Committee dismissed the complaint for the reason that the allegation contained in the complaint had no nexus with the professional duties of the accused counsel‑‑­Validity‑‑‑Accused counsel had acted in a way which was unbecoming of a counsel‑‑‑Once the amount was admitted to have been received by the accused counsel directly or through a friend, such payment was under the garb of legal profession and under the robes of an Advocate, which was thus, amenable to the jurisdiction of the Bar Council‑‑‑Order passed by the Disciplinary Committee was set aside and the Tribunal found the accused counsel guilty of professional misconduct‑‑‑Where the complainant had admitted that his claim had been satisfied, the Tribunal taking lenient view of the matter, reprimanded the accused counsel with the costs of Rs.5,000 i.e. the costs of the proceedings, payable by both the respondents in equal shares to the Provincial Bar Council‑‑‑Appeal was allowed accordingly.

Muhammad Amin v. M. Asghar Khokhar 1992 CLC 556; Irshad Khan v. Gohar Rehman Khatak 2000 MLD 1264; Wajid Ali v. Zafar Khalil 2000 MLD 1275 and Ali Rehman v. Zaheerud Din Baber 2001 MLD 895 ref.

Appellant in person.

Respondents in person.

Miss Musarrat Hilali, A.A.‑G for the Government of N.W.F.P.

2002 M L D 1629

[N.‑W.F.P. Bar Council Tribunal]

Before Justice Muhammad Qaim Jan Khan, Chairman Muhammad Alam Khan and Saeed Akhtar, Members

ASGHAR ALI, SPP‑‑‑Appellant

versus

ARSHAD MEHMOOD LODHI, ADVOCATE‑‑‑Respondent

Complaint. No.T‑23 of 2001, decided on 11th May, 2002.

Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑‑‑‑Ss.42 & 45‑‑‑Civil Procedure Code (V of 1908), O.IX, R.7‑‑‑Ex parte proceedings, setting aside of‑‑‑Failure to appear before Disciplinary Committee, despite receipt of notice‑‑‑Complaint was filed before the Committee regarding professional misconduct of the respondent‑‑‑Notice was issued by the Committee and the same was received by the respondent who did not appear before the Committee‑‑­Ex parte proceedings were initiated against the respondent and the matter was forwarded to the Tribunal for final adjudication‑‑‑Respondent,, in response to the notice issued by the Tribunal appeared and filed application for setting aside of ex parte proceedings‑‑‑Contention of the respondent was that no copies of complaint and other documents were annexed with the notice issued to him by the Disciplinary Committee‑‑­Validity‑‑‑Respondent was proceeded ex parte, which proceedings had not culminated into a final order‑‑‑When a person was placed ex parte, he could join the proceedings at any stage on the adjourned date‑‑­Tribunal while following the maxim of law that nobody should be condemned unheard, set aside ex parte proceedings and gave a chance to the respondent to present his defence before the Members of the Disciplinary Committee‑‑‑Application was allowed in circumstances.

Lajbar Khalil for Appellant.

Respondent in person.

Miss Musarrat Hilali, A.A.‑G. for the Government of N.‑W. F. P.

Date of hearing: 11th May, 2002.

2002 M L D 1703

[N.‑W.F.P. Bar Council Tribunal]

Before Justice Muhammad Qaim Jan Khan, Chairman, Muhammad Alam and Saeed Akhtar, Members

REHMAN KHAN‑‑‑Appellant

versus

ABDUL KABIR, ADVOCATE‑‑‑Respondent

Appeal No. T.37 of 2002, decided on 11th May, 2002.

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

‑‑‑‑O.IX, R.7‑‑‑Ex parte proceedings, joining of‑‑‑When a person is placed ex parte, such person can join the proceedings at any stage of the case.

Azizullah and another v. Arshad Hussain and others PLD 1975 Lah. 879 ref.

(b) Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑‑‑‑Ss.42 & 45‑‑‑Ex parte proceedings, setting aside of‑‑‑Summons not duly served‑‑‑Disciplinary Committee without waiting for the return of acknowledgement due card by Postal Authorities, proceeded ex parte against the respondent and matter was referred to the Tribunal for final adjudication‑‑‑Contention of the respondent was that he had not been served the process‑‑‑Effect‑‑‑No evidence was available on record that the respondent had been duly served‑‑‑Respondent, in the present case, should not be condemned unheard and a chance should be given to him to ,present his defence before the Disciplinary Committee‑‑‑Ex parte proceedings were set aside and the case was remanded for decision on merits.

Miss Sakina Gul for Appellant.

Respondent in person

Miss Musarrat Hilali A.A.‑G.

2002 M L D 1438

[Customs Central Excise and Sales Tax Appellate Tribunal]

Before Raja Muhammad Khan, Member Judicial and S.M. Kazmi, Member Technical

KAMIL KHAN‑‑‑Appellant.

versus

COMMANDANT, MASHAL RIFLES and 2 others‑‑‑Respondents

Appeal No.CUS‑A‑325/PB of 2002, decided on 11th May, 2002.

(a) Customs Act (IV of 1969)---

‑‑‑‑Ss.194‑B(1) & 181, provisos‑‑‑Section 194‑B(1) of the Customs Act, 1969 had no overriding effect on the directions given under provisos to S.181 of the Customs Act, 1969‑‑‑Although S. 194‑B of the Act was later in sequence as compared to S.181 but that could not be construed to nullify the provisions of the provisos to S.181 of the Customs Act, 1969‑‑‑Tribunal, under S.194‑B(1); was empowered to pass an order "as it thinks fit" but that was qualified to the extent of "confirming, modifying or annulling the decision or order appealed against" besides the power to remand the case for fresh adjudication‑‑­Existence of S.194‑B(1) did not make the provisions of the provisos to S.181, Customs Act, 1969 redundant as both the provisions were not inconsistent with each other.

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss.2(a), 179 & 181‑‑‑S.R.O. 1374(I)/98, dated 17‑12‑1998‑‑­Adjudicating Authority, powers of‑‑‑Appellate Authority‑‑‑Imposition of penalty and confiscation of goods‑‑‑Adjudication by the ‑Tribunal‑‑­Validity‑‑‑Appellate Tribunal was not covered by the terms "Adjudicating Authority" as defined under S.2(a) of the Customs Act, 1969, as it was an Appellate Authority for the cases decided in terms of S.179 of the Customs Act, 1969‑‑‑Appellate Tribunal while deciding appeal had to look into the legality and propriety of the order appealed against and then pass an order as it might think fit, confirming, modifying or annulling such order‑‑‑Appellate Tribunal had to see whether the order of outright confiscation (without option to pay tine in lieu of confiscation in terms of the first proviso to S.181 of the Customs Act, 1969) was a lawful and proper order and whether S.R.O.1374(I)/98 dated 17‑12‑1998 applied to such a case, was really applicable to the facts of the case‑‑‑Said notification had been issued in terms of the provisos to S.181 of the Customs Act, 1969 and, therefore such authorized subordinate legislation, when made and notified, was to be read as a part of the Act itself if it was not inconsistent with the Act‑‑­Notification No.S.R.O. 1374(1)/98 dated 17‑12‑1998 was in accordance with the provisions of the provisos to S.181 of the Customs Act, 1969 and was, therefore, to be read as a part of S.181 of the Aft‑‑‑Appellate Tribunal, also created under the Customs Act, while deciding the appeal, cannot be expected to enforce the provisions of 5.181 of the Act while, simultaneously, ignoring its provisos and the subordinate legislation in the shape of S.R.O. 1374(1)/98 dated 17‑12‑1998 only on the ground that it was not an "Adjudicating Authority" under S. 2(a) or under S.179 of the Customs Act, 1969‑‑‑Such a partial enforcement of the provisions of a particular section by the Appellate Tribunal was not a correct appreciation of the law and practice.

PTCL 2002 CL 92 rel.

(c) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss.2(s)(ii), 181, 43, 44 & First Schd., Chap.87‑‑‑S.R.O. 491(I)/85, dated 23-5‑1985, S.R.O. No.34‑‑‑S.R.O. 1374(I)/98, dated 17‑12‑1998, Table 1, Sr.No.1 & Table‑III, Sr.No.4‑‑‑Smugglled vehicle, confiscation of ‑‑‑Assessee claimed that S.R,O. 1374(I)/98 dated 17‑12‑1998 did not apply to "vehicles" by virtue of Sr.No.4 of Table III to the said notification‑‑‑Validity‑‑‑"Vehicles of Chap. 87 of the First Sched, to the Customs Act, 1969, excluding non‑motorized vehicle" was a notified item under Cl. (ii) of S.2(s) of the Customs Act, 1969 read with S.No.34 of the Notification No.S.R.0. 491/(I)/85 dated 23‑5‑1985‑­‑Vehicle, in the present case, was a vehicle of Chap. 87 of the First Sched. to the Customs Act, 1969 and was a motorized vehicle and, was also valued at more than Rs.50,000, and therefore, was covered by the common terminology "notified item" for the purposes of S.2(s)(ii) of the Customs Act, 1969‑‑‑Owner of the vehicle had not been able to produce any document (e.g. customs bill of entry under S.79 of the Customs Act, 1969, or an I.G.M. under S.43 or S.44 of the said Act) to show the legality of its import through an authorized customs route which therefore, would also attract Cl. (iii) of S.2(s) of the Customs Act, 1969‑‑‑Nature and gravity of the offence was not diminished by the appellant's offer, post seizure, to pay duty and taxes‑‑‑Vehicle was a smuggled one and attracted the provision of Sr. No.1 of Table I read with Cl.(a) of the S.R.O. 1374(I)/98 dated 17‑2‑1998 and Sr. No.4 of Table‑III applied to such vehicles for which customs duties were to be paid by 15‑3‑2000‑‑‑Duty was not paid by such date and same had not been paid till now‑‑‑Benefits of Sr. No.4 of Table‑III of S.R.O. 1374(I)/98 dated 17‑12‑1998 were not available to the present case‑‑‑Vehicle involved in appeal, attracted the proviso to S.181 of the Customs Act, 1969 read with Sr.No.1 of Table‑I of S.R.O. 1374(I)/98, dated 17‑12‑1998 under Cl. (a) thereof‑‑‑Vehicle was rightly confiscated.

(d) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss.2(s)(ii), 181, 43 & 44‑‑‑Customs Act (Application to the Federally Administered Tribal Areas) Regulation (1 of 1984), Regln.2‑‑­Provincially Administered Tribal Areas of the North‑West Frontier Province (Application of Laws) Regulation (III of 1975), Regln.2 & Sched., Sr.No.II‑‑‑S.R.O. No.1017(1)/74, dated 26‑7‑1974‑‑‑Seizure of vehicle by Frontier Corps‑‑‑Legality‑‑‑Customs Act 1969, had been extended to apply to FATA in terms of Regulation No.1 of 1984 issued under Notification No. F.5(I).III/82/Vol.III dated 7‑1‑1984 and also to the DATA of N.‑W.F.P. vide Sr.No.II of the Sched. to the Regulation No.III of 1975 issued under Notification No.F.1(6)‑Sec.III/72 dated 22‑7‑1975‑‑‑Appellant claimed that implementation of aforesaid instrument had been held in abeyance but he had not produced/cited any document, authority or notification to support his claim‑‑‑In absence of any such notification or. Regulation cancelling, rescinding, or holding in abeyance the aforesaid Regulations, the Frontier Corps troops were authorized, in terms of Notification No.S.R.O. 1017(1)/74 dated 26‑7‑1974, to exercise powers of the Customs Officers to the extent specified in the said notification‑‑‑Seizure by Frontier Corps Troops of Mashal Rifles was not unlawful in circumstances.

(e) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 2(s), 16, 156 Cls.(8), (89), (90) & 181‑‑‑Import and Export. (Control) Act (XXXIX of 1950), S. 3(l)(3)‑‑‑S.R.O. 1374(I)/98, dated 17‑12‑1998, Table‑I, Sr. No.1, Cl.(a)‑‑‑Smuggled vehicle, confiscation of‑‑‑Validity‑‑‑Outright confiscation (without option to the, owner to pay fine in lieu of confiscation in terms of S.181 of the Customs Act, 1969) of the appellant's vehicle was lawful and proper under Cls.8 & 89 of S.156(1) of the Customs Act, 1969 read with Sr. No.1 of Table I of SRO 1374(I)/98, dated 17‑12‑1998 and Cl. (a) thereof‑‑‑Confiscation was confirmed by the Appellate Tribunal and appeal was dismissed.

2002 MLD 296 rel.

Irshad Ahmad Durrani and Awais Ahmad Qadri for Appellant.

Al‑Haj Gul, D.R./D.S. for Respondents

Date of hearing: 9th May, 2002.

2002 M L D 1621

[Customs Central Excise and Sales Tax Appellate Tribunal]

Before (Justice (R) Abdul Majeed Tiwana, Chairman, S.M. Kazimi, Member (Technical) and Raj Muhammad Khan, Member (Judicial)

SALAH‑UD‑DIN‑‑‑Appellant

versus

ADDITIONAL COLLECTOR OF CUTSOMS (ADJUDICATION), PESHAWAR and another‑‑‑Respondents

Appeal No. 1583‑CUS/IB of 2001(PB), decided on 6th April, 2002.

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S.156‑‑‑Allegation of smuggling of vehicle‑‑‑Vehicle without its original chassis is not the original vehicle and a chassis without its original number in the original manner is not the original chassis.

Per S.M. Kazimi, Member (Technical), Justice (R) Abdul Majeed Tiwana, agreeing‑‑‑

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S.156‑‑‑Allegation of smuggling vehicle‑‑‑Vehicle's chassis will be damaged or badly damaged in an accident but an accident could not be visualize which damages a ,chassis to the extent that it gets repaired with a welded sheet to replace the original inscription, whether with the original chassis number or otherwise.

(c) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss.156(1), Cls.(89), (90) & 181‑‑‑Imports and Export (Control) Act, (XXXIX of 1950), S.3(3)‑‑‑S.R.O. 1374(1)/98, dated 17‑12‑1998‑‑­Punishment for offences‑‑‑Option to pay fine in lieu of confiscated goods‑‑‑Smuggled goods‑‑Outright confiscation of vehicle suspected of having its chassis number tampered with which was welded according to the report of Laboratory‑‑‑Validity‑‑‑Reasons advanced i.e. accident of the vehicle, did not satisfy the Tribunal and that too only of a part where the number was inscribed‑‑‑Such was a clear and obvious mischief to hoodwink the Government, to deprive the exchequer of its, legitimate revenues and to disguise a smuggled car with a welded chassis number in place of the original inscribed chassis number‑‑‑Vehicle was not a Pakistan origin and the chassis sheet with welded part bearing the chassis number showed the intent and purpose of the appellant‑‑‑Vehicle was correctly confiscated under Cl.(89) of S.156(1) of the Customs Act, 1969 with no .option to the owner to pay any fine in lieu of the confiscation under S.181 of the Customs Act, 1969 read with Notification NO. S.R.O.1374(1)/98 dated 17‑12‑1998‑‑‑Appellate Tribunal observed that it was a matter of common knowledge that genuineness or otherwise of the chassis number of the vehicle was a decisive factor in determining the smuggled character of the vehicle and efforts were made by the persons dealing in or using, smuggled vehicles to affix chassis number of genuinely imported vehicle on the chassis of the smuggled vehicle to give it a look of genuinely imported one‑‑‑Welding of chassis plate, which was an admitted fact could lead to no other conclusion except that an effort was made by the appellant or some of its previous owners, to convert a smuggled vehicle into a genuinely imported one by adopting this device‑‑‑Impugned order was confirmed and the appeal was dismissed by the Tribunal.

Ajoon Khan for Appellant.

Pir Alam Shah, D.S./D.R. for Respondents.

Date of hearing: 15th January, 2002.

2002 M L D 628

[Federal Shariat Court]

Before Sardar Muhammad Dogar, J

MUHAMMAD ASHRAF‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No, 129‑L of 2000, decided on 19th September, 2001.

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

‑‑‑‑S.10(2)‑‑‑Penal Code (XLV of 1860), S.448-‑‑Appreciation of evidence‑‑‑Delay if any in lodging F.I.R. was justified as F.I.R. was lodged by the victim girl herself because her parents were not present in the house at the time of occurrence‑‑‑Medical evidence had fully corroborated the testimony of the complainant/victim girl‑‑‑Accused had failed to bring anything on record to prove that there was any enmity, annoyance or ill‑will between the complainant or her family and the accused‑‑‑Case against the accused having been fully proved, his convictions under both the offences were maintained.

Aslam Rajput and Zahid Hussain Khan for Appellant.

Khawaja Muhammad Iqbal Butt, for the State.

Date of hearing: 19th September, 2000.

2002 M L D 1504

[Federal Shariat Court]

Before Ali Muhammad Baloch, J

MUHAMMAD AMIN ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.66/I of 2002 in Criminal Appeal No.88‑I of 2002, decided on 7th May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.426‑‑‑Prohibition (Enforcement. of Hadd) Order (4 of 1979), Arts.3/4‑‑‑Petition for suspension of sentence pending appeal‑‑‑Petitioner had contended that imprisonment challenged in appeal was only for 3 years and such period being very short same might pass during the pendency of appeal and that 3 Kgs. Charas and 1 Kg. opium having already been destroyed at time of passing judgment by Trial Court, it could not be held a valid ground for conviction‑‑‑Other contentions raised by the petitioner required examination and assessment of evidence on record‑‑‑Validity‑‑‑Held, contention that appeal would be decided after a period beyond 3 years, was ill‑founded as appeal was fresh which was less than 2 months old and would definitely be taken up and decided much earlier than period of imprisonment‑‑‑Other contentions raised by petitioner required deeper appreciation and assessment of evidence on facts as well as on law which could not be done as appeal which had reached stage of regular hearing was not fixed for that purpose‑‑‑When such application involved same questions calling for decision in appeal, it was advisable not to prejudice the case at such stage.

Amjad Ali for Petitioner.

Muhammad Sharif Janjua for the State

2002 M L D 1098

[Federal Tax Ombudsman]

Before Saleem Akhtar, Federal Tax Ombudsman

Messrs DYNO PAKISTAN LTD. ‑‑‑Complainant

versus

SECRETARY, REVENUE DIVISION, ISLAMABAD‑‑‑Respondent

New No.C‑1464‑K of 2001 and Old Complaint No.C‑03‑K of 2001­2002, decided on 20th November, 2001.

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 81‑‑‑Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2001), S.9‑‑‑Provisional and final assessment of duty‑‑‑Object‑‑‑Procedure‑‑‑Federal Tax Ombudsman recommended to the Federal Government to amend S.81(1) of the Customs Act, 1969 by adding words "at the, declared value "after the words "such goods be assessed provisionally" as existing in the provision.

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S.81‑‑‑Establishment of Office of Federal Tax Ombudsman Ordinance, (XXXV of 2001), S.9‑‑‑Provisional assessment of duty‑‑‑Customs Authorities assessed the value of imported goods provisionally on the proposed value and not on the declared value‑‑‑Claim of refund‑‑‑No final assessment was made within the time limit specified under S.81(2) of the Customs Act, 1969 i.e. 180 days in spite of the continuous pursuit of the case for final assessment before as well as after the expiry of said time limit‑‑‑After expiry of time limit, the complainant/importer claimed that declared value automatically became final and the additional amount was liable to be refunded‑‑‑On complaint to Federal Tax Ombudsman in 200.1, the Department rejected the claim of refund by stating that mandatory period under S.81(2) for final assessment had expired and the provisional assessment attained finality in terms of S.81(4) of the Customs Act, 1969‑‑‑Validity‑‑‑impugned order was patently illegal and on failure to make final assessment within 180 days from the date of provisional assessment it could not be treated as final‑‑‑Concerned officer should have passed a speaking order while making a final assessment even if it fell under S.81(4) of the Customs Act, 1969‑‑‑In view of the illegality of the orders passed by the Assistant Collector, the Federal Tax Ombudsman recommended that Central Board of Revenue should direct the Collector of Customs to set aside the said orders under 5.195 of the Customs Act and finalized the assessment within six weeks after taking into consideration the advice of the Valuation Department and providing to the Complainants the opportunity of hearing.

(c) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S.81‑‑‑Provisional assessment‑‑‑Its object and necessity‑‑‑Duty of Assessing Officer‑‑‑Object of S.81 of Customs act, 1969, is to ensure proper assessment in case of dispute between Department and importer/exporter‑‑‑Provision for provisional assessment is intended to grant relief to importer/exporter and give sufficient time to Department to ascertain correct value of goods before final assessment is made‑‑­Provisional assessment order should contain in clear terms the reasons for such assessment and the amount of duty so assessed‑‑‑Practice of ` making provisional assessment by writing short notes or marginal remarks is improper and not in accordance with law.

(d) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 81‑‑‑Provisional assessment‑‑‑Declared value and custom proposed value‑‑‑Dispute between the two, resolution of‑‑‑Method stated

Syed Ali, Vice‑Chairman for the Complainant.

Tejpar Maheshwary, Senior Manager (Import and Export)

S.M. Haider Naqvi, Deputy Manager (Tax)

S.M. Tariq Huda, Additional Collector of Customs (Preventive).

Siddique Mirza, Assistant Collector of Customs (Preventive)

Rashid Jamil, Assistant Controller of Valuation.

Shamim Iqhal, Principal Appraiser Valuation, Riaz Haider Principal Appraiser Valuation

Ali Nawaz, Valuation Officer.

2002 MLD 7

[Karachi]

Before Wahid Bux Brohi, J

GHULAM RASOOL---Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.570 of 2001, decided on 13th August, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S-302/34 --- Bail --- Accused was not named in the F.I.R.---Eye-witnesses in their statements under S.164, Cr.P.C. had also not nominated the accused---No identification parade or any other evidence relating to identity of accused was available---Nothing incriminating was recovered from the accused--­Identity of accused was a matter of further inquiry in the case--- Prosecution had not objected to grant of bail to accused---Bail was allowed to accused in circumstances.

Mufti M. Bashir and Arshad Jamal for Applicant.

Fazalur Rehman for the State.

Date of hearing: 13th August, 2001.

2002 M L D 19

[Karachi]

Before Shabbir Ahmed, J

WATER AND POWER DEVELOPMENT AUTHORITY

through Chairman and 5 others---Petitioners

Versus

Messrs SEA GOLD TRADERS----Respondent

Judicial Miscellaneous No.1 of 1995 in Suit No. 2 of 1993, decided on 18th May, 2001..

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

----S.12(2)---provisions of S.12(2), C.P.C.---Applicability---Scope----Provisions of S.12(2), C.P.C. can be pressed into service in case where fraud is played or misrepresentation is made during the proceeding of the suit in Court and not if done outside the Court.

Begum Anwari Khanum and another v. Paksson (Pvt.) Ltd. and another 1993 MLD 1555 ref.

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

----S.12(2)----Provisions of S.12(2), C.P.C.---Object---Provisions of S.12(2), C.P.C. were brought on statute book with the purpose to provide a remedy to the aggrieved party and to save him from the agony of further litigation by filing suit for setting aside a decree obtained on fraud, misrepresentation and without jurisdiction in the same proceedings.

Muhammad Bibi v. Abdul Ghani PLD 1973 Kar. 444; Peary Choudhry v. Sonoory Dass AIR 1995 Cal. 622; Akina Bibi and others v. Muhammad Ali Shah AIR 1941 Cal. 336; Sadho Saran Bai v. Anant Raj AIR 1923 Pat. 483; Chuttan Prasadsah v. Mst. Bisunikaur AIR 1943 Pat. 13; Forlcoomany Dasi v. Woody Chunder Biswas ILR 25 Cal. 649; Barhandas Parsad v. Banarsi Parsad (1906) 3 CLJ 119; Mst. Gulbkoer v. Badshah Bahadur 13 CWN 1197; J.G. Galstaur v. Pramatha Nath Roy AIR 1929 Cal. 470; Grindlays Bank Ltd. v. Murree Brewery Co. Ltd. PLD 1954 Lah. 745 and Muhammad Yousaf v. Tajammul Hussain PLD 1972 Lah. 565 ref.

(c) Counsel and client---

---- Relationship of---Power to compromise suit by counsel---Object and scope---Existence of such power is necessary to effectuate the relations between counsel and client, to make possible the duties imposed upon the counsel by his acceptance of the cause of his client---Implied authority of counsel is not an appendage of office, a dignity added by the Courts to the status of Barrister or Advocate at law---Implied in the interests of the client, to give the fullest beneficial effect to his employment of the counsel---Implied authority can always be countermanded by the express direction of the client---No counsel has actual authority to settle a case against the express instructions of his client---If the counsel considers such express instructions contrary to the interests of his cilent, his remedy is to return his brief.

Sourendr Nath Mitra and others v. Tarubala Dasi AIR 1930 PC 158 ref.

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

----S.12(2)& 0.III, R.1---Setting aside of decree---Counsel and client, relationship of-------Compromising of suit---Such authority was not given to the counsel in the power of attorney by the client---Such fact was not brought to the notice of the Court that he had no authority and the suit was decreed on the basis of compromise---Application under S.12(2), C.P.C. was filed by the defendant to set aside the decree on ground of misrepresentation and fraud ---Validity---- Vakalatnama / power of attorney filed by the counsel on behalf of the defendant in the instant case, his implied authority to compromise was countermanded by express direction not to enter into compromise or abandon any claim---Where the counsel, in circumstances, entered into compromise, such action on the part of the counsel was equated with "misrepresentation" a synonymous term of "fraud" played not only on the Court but also on the defendant---By signing the compromise application the counsel had exceeded the authority given to him and misled the Court in passing the decree---Provisions of S.12(2), C.P.C. were attracted in the instant case and the decree passed on the basis of compromise was set aside.

Mobile Eye Service of Pakistan v. Director, Social Welfare/Registration Authority PLD 1992 Kar. 183; Dr. Ansar Hasan Rizvi v. Syed Mazahir Hussain Zaidi 1971 SCMR 634; Basangouda Hanmantgouda v. Churdhigririgouda (1910) 5 IC 968 and Neal v. Gordon Lennox 1902 AC 465 ref.

Badar Alam for Applicant.

Mumtaz A. Sheikh for Respondent.

Date of hearing: 3rd May, 2001.

2002 M L D 35

[Karachi]

Before Muhammad Moosa Leghari, J

DHANI BAKHSH and others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Application No.421 of 2001, decided on 19th September, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss. 302/324/504/147/148/149‑‑­Bail, grant of‑‑‑Accused who ‑was neither armed with any weapon nor did he partake in the scuffle, was only present on the scene‑‑‑No overt act had been attributed to the accused and the question of vicarious liability of the accused was to be determined at the stage of trial‑‑­Accused would be liable for his own act and he had not committed any overt act‑‑‑Case against the accused being of further inquiry, he was granted bail.

Faraz Akram v. State 1999 SCMR 1360 ref.

Abdul Rasool Abbassi for Applicant.

Riazuddin Siddiqui for A.‑G. for the State.

2002 M L D 39

[Karachi]

Before Muhammad Ashraf Leghari, J

AKHTAR HUSSAIN KHAN‑‑‑Appellant

Versus

NOOR AHMED ‑‑‑Respondent

First Rent Appeal No.37 of 1998, decided on 31st August, 2001.

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

‑‑‑‑S.24‑‑‑Limitation Act (IX of 1908), Ss.4 & 12‑‑‑Appeal‑‑­Limitation‑‑‑Time‑barred appeal‑‑‑Delay was caused due to non‑supply of stamps for attested copy of the judgment‑‑‑Effect‑‑‑Appellant failed to exercise due diligence to avoid delay‑‑‑Time between making application and the supply of stamps could not be termed to be the time requisite for obtaining copy‑‑‑Appellant failed to supply the stamps within time to obtain the copy of judgment and the appeal was filed after lapse of about 66 days‑‑‑Where the appeal was barred by time which created substantive right in the other side, the same could not be lightly brushed aside‑‑‑Appeal was dismissed in limine.

Dr. Obaidur Raza Khan v. Mst. Saghera Bano and another 1994 CLC 1302; Haji Fakir Muhammad v. Abdul Razzak and another PLD 1992 Kar. 398 and Fateh Muhammad and others v. Malik Qadir Bux 1975 SCMR 157 ref.

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

‑‑‑‑S.24‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Appeal‑‑‑Condonation of delay‑‑‑Provisions of S.5 of the Limitation Act, 1908‑‑‑Applicability‑---­Time for filing appeal is not prescribed by Limitation Act, 1908, but it is prescribed in the Cantonments Rent Restriction Act, 1963 itself‑‑­Provision of S.5 of the Limitation Act, 1908, has no applicability in the matters governed by Cantonments Rent Restriction Act, 1963.

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

S. Zahir Hussain Chishti for Appellant.

M. lqbal for Respondent.

Date of hearing: 15th August, 2001.

2002 M L D 48

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

ABDUL, SATTAR ‑‑‑ Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION

DIGRI, DISTRICT MIRPURKHAS and 3 others‑‑‑Respondents

Criminal Miscellaneous Application No. 380 of 2001, decided on 25th July, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 491‑‑‑Su render of Illicit Arms Act (XXI of 1991), S.7‑C‑‑­Habeas corpus petition ‑‑‑Detenus were found confined in the lock‑up of the police station‑‑‑No entry with regard to their arrest was made in the Daily Diary of the police station, nor their remand was obtained from the Court concerned ‑‑‑Detenus were consequently set at liberty‑‑‑High Court ordinarily does .not consider the bail plea in proceedings under S.491, Cr.P.C. but in view of the peculiar facts and circumstances of the case one detenu was released on his personal requisition bond who was nominated as accused in the F.I.R. registered under S.7‑C of Surrender of Illicit Arms Act, 1991‑‑‑S.H.O. of the police station concerned responsible for the said episode had tendered unconditional apology and placed himself at the mercy of the Court‑‑‑Apology was accepted with a warning .to the S.H.O. to be careful in future.

Ayaz Hussain Tunio for Applicant.

Masood A. Noorani, Addl. A.‑G., Sindh on behalf of the State.

2002 M L D 52

[Karachi]

Before Shabbir Ahmed, J

MANZOOR and another‑‑‑Petitioners

Versus

STATE‑‑‑Respondent

Criminal Bail Application No. 489 of 2001, decided on 15th October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/504/114/147/148/149‑‑­Bail, grant of‑‑‑No overt act had been assigned to the accused except their presence at the Vardat armed with "Lathi" which had not been used in the occurrence‑‑‑Accused were entitled to grant of bail in circumstances.

Abdul Rasool Abbasi for Applicant.

Riazuddin Siddiqui for the State.

2002 M L D 61

[Karachi]

Before Ghulam Nabi Soomro and Ata‑ur‑Rehman, JJ

ALLAH BUX‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Jail Appeal No.35, Special ATA No. 18 and Criminal Reference No.4 of 2000, heard on 8th March, 2001.

Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑Ss. 302(b) & 377‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑­Appreciation of evidence‑‑‑No direct evidence was available to link the accused with the commission of the offence‑‑‑Recovery evidence did not inspire confidence and the same being corroborative in nature could not be relied upon in the absence of direct evidence‑‑‑Judicial confession made by accused was not supported by the Mashirnama of place of Wardat, inquest report, medical evidence and evidence of recovery‑‑­Injuries present on the body of the accused were not taken notice of by the Magistrate at the time of recording his confession who also did not fulfil other necessary conditions in this context as required by law‑‑‑Judicial confession of accused was neither voluntary nor free from doubt‑‑‑No other piece of evidence was available on record against the accused‑‑‑Accused was acquitted in circumstances.

Daniel Boyd v. The State, 1992 SCMR 196 ref.

Abdul Ghafoor Mangi for Appellant.

Habib Ahmed, A.A.‑G. for Respondent.

Date of hearing: 8th March, 2001.

2002 M L D 65

[Karachi]

Before Wahid Bux Brohi, J

Mst. REHANA BEGUM‑‑‑Applicant

Versus

KARAM HUSSAIN ‑‑‑Respondent

Revisional application Appeal No.86 of 2000, decided on 8th August, 2001.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Concurrent findings of facts of the Courts below‑‑‑Interference by High Court in revisional jurisdiction ‑‑‑Scope‑‑­Where the order‑ suffers from jurisdictional defect, illegality and material irregularity and is perverse, such findings on a point of fact and/or law can be upset in exercise of revisional jurisdiction.

Riaz Hussain v. Board of Intermediate and Secondary Education 2000 SCMR 661; Aaji Rehmdil v. The Province of Balochistan 1999 SCMR 1060 and Mst. Naziran Begum v. Mst. Khurshid Begum 1999 SCMR 1171 ref.

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

‑‑‑‑O.IX, R.6 & XVIII, R.2‑‑‑Limitation Act (IX of 1908), Arts. 164 & 181‑‑‑Ex parte decree, setting aside of‑‑‑Limitation‑‑‑All cases other than those decided ex parte on the first hearing after service of summons or even when summons were not duly served on defendant, would not be governed by Art.164 of the Limitation Act, 1908, and the application for setting aside such judgment and decree would be governed by residuary Art. 181 of the Limitation Act, 1908.

Rehman Weaving Factory v. Industrial Development Bank of Pakistan P L D 1981 SC 21 ref.

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

‑‑‑‑O.IX, Rr. 6, 13, O.XVIII, R.2 & S.115---‑‑Limitation Act (IX of 1908), Arts. 164 & 181‑‑‑ Ex parte decree, setting aside of ‑‑­Limitation‑‑‑Concurrent findings of facts by the Courts below‑‑­ Jurisdiction of High Court under 5.115, C.P.C.‑‑‑Scope‑‑‑Filing of application for setting aside of ex parte decree beyond 30 days‑‑‑Ex parte judgment and decree were not passed on the first hearing within the meaning of O. IX, R.6(1), C. P. C., as the defendant had already filed his written statement pursuant to the service of the summons upon him‑‑‑Ex parte proceedings were taken by the Trial Court after issuance of notice of application under O.VIII, R.5 and O.XII, R.6 C.P.C., which service was held good, but then the case was adjourned twice‑‑‑Application of the defendant for setting aside of ex parte decree was dismissed by the Trial Court as being time‑barred and the order was maintained by Lower Appellate Court‑‑‑Validity‑‑‑Provisions of Art.181 and not Art.164 of the Limitation Act, 1908, were applicable to the case, as such the application for setting aside the ex parte decree could be filed within three years of the date on which the right to apply accrued‑‑‑Application for setting aside ex parte decree instituted by the defendant within about four months of the date of the decree was well within time and the view taken by the Trial Court as also the Appellate Court that the same was barred by time was contrary to the settled law and the defendant was deprived of his valuable right due to wrong application of law by the Courts below‑‑‑Both the Courts had committed illegality in dismissing the application of the defendant which had resulted in miscarriage of justice‑‑‑Despite the fact that there were concurrent findings on a point of law but patent illegality was committed as regards the question of limitation which was the deciding factor in both orders‑‑‑High Court in the interest of justice exercised revisional jurisdiction and set aside orders passed by the two Courts below and the case was remanded to the Trial Court for deciding the application afresh‑‑‑Revision was allowed in circumstances.

Riaz Hussain v. Board of Intermediate and Secondary Education 2000 SCMR 661; Haji Rehmdil v. The Province of Balochistan 1999 SCMR IQ60; Mst. Naziran Begum v. Mst. Khurshid Begum 1999 SCMR 1171; Messrs China Petroleum Engineering Construction Corporation (CPECC) v. Messrs R.J. Engineering and Management Consultants 1999 CLC 117; Farid Khan v. Gulzar Khan PLD 1985 SC (AJ&K) 74 and Mst. Sardar Begum v. Mst. Chiragh Bibi 1989 CLC 825 ref.

Muhammad Rafi for Applicant.

Rehan‑ul‑Hassan Farooqui for Respondent.

2002 M L D 76

[Karachi]

Before Faiz Muhammad Qureshi, J

RABOO‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Jail Appeal No.l of 1998, decided on 6th July, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑ ‑Occurrence was found to be an unwitnessed one lacking ocular testimony‑‑‑Judicial confession of the accused had been recorded after a delay of seven days on the basis of a letter produced by the police without having fulfilled the necessary legal requirements which was even retracted by the accused‑‑‑Motive was not established by the prosecution ‑‑‑F.I.R. had not been proved and only an entry was produced which was available on record‑‑‑Prosecution had failed to establish the guilt of accused beyond reasonable doubt‑‑­Accused was acquitted accordingly.

1984 PCr.LJ 611 and 1995 SCMR 1345 ref.

(b) Evidence‑‑‑

‑‑‑‑Hearsay evidence‑‑‑Hearsay evidence is the weakest type of evidence.

Allah Bachayo Soomro for Appellant.

Anwar Hussain Ansari for A.A.‑G. for Respondent.

Date of hearing: 6th July, 2001.

2002 M L D 99

[Karachi]

Before Zahid Kurban Alavi and

Muhammad Mujeebullah Siddiqui, JJ

ALI AKBAR‑‑‑Petitioner

Versus

ADMINISTRATOR, MUNICIPAL

COMMITTEE, KAMBER and others‑‑‑Respondents

Constitutional Petition No.D‑405 of 2001, decided on 9th August, 2001.

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

‑‑‑‑S.60 & Sched. V‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Levy of Fish Market Dalali (commission) fee‑‑‑Dispute was with regard to the imposition of the fee by the Authorities‑‑‑Validity‑‑‑Authorities were empowered to issue licence to the fish/meat/vegetable vendors and other shop/stall holders on charging licence fee, on annually, monthly or daily basis but were not empowered to impose and recover Fish Market Dalali (commission) fee on the sale of fish by the vendors in the fish market situated within the Municipal Limits of the Municipal Committee‑‑‑Fish Market Dalali (commission) fee could not be levied under S.60 of the Sindh Local Government Ordinance, 1979 read with Sched. V thereof, therefore, the same could not be allowed, to continue as such imposition of fee had no sanction of law at any time even prior to the Sindh Local Government Ordinance, 1979.

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

‑‑‑‑S.60 & Sched. V‑‑‑Levy of tax‑‑‑Jurisdiction of Local Authority‑‑­Scope‑‑‑Authorities may levy in the prescribed manner all or any of the taxes, rates, tolls and fees mentioned in Sched. V of the Sindh Local Government Ordinance, 1979 under the provisions of S.60 of the Ordinance‑‑‑Authorities are empowered to levy fee for issuance of licence/permits granted and to levy fee for market and any other tax which Government is empowered to levy by law.

Abdul Khalique Bhutto for Respondent No. 1.

2002 M L D 113

[Karachi]

Before Muhammad Afzal Soomro, J

SIKANDER JANWARI‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.364 of 2001, decided on 16th July, 2001.

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

‑‑‑‑S.498‑‑‑Pre arrest bail‑‑‑Principle‑‑‑Mala fides and ulterior motive must be alleged specifically, though not required to be proved, in order to obtain bail before arrest.

Muhammad Murad Khan v: Fazal‑e‑Sultan and another PLD 1983 SC 82; Zia‑ul‑Hassan v. The State PLD 1984 SC 95; Muhammad Azam v. The State 1996 SCMR 71; Muhammad Afzal and another v. Abdullah and others 1997 SCMR 278 and Muhammad Saeed v. The State PLD 1999 Kar. 345 ref.

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

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), S.382‑‑‑Pre‑arrest bail‑‑‑Intended arrest of accused was not shown to be tainted with mala fides or ulterior motives and the same were not alleged specifically‑‑‑Accused, thus, had not been able to make out a case for bail before arrest‑‑‑Order granting interim pre‑arrest bail to accused was recalled accordingly.

Muhammad Sardar and another v. State 1981 PCr.LJ 1157; Muhammad Afzal and another v. The State1997 SCMR 78; Muhammad Murad Khan v. Fazal‑e‑Sultan and another PLD 1983 SC 82; Zia‑ul­Hassan v. The State PLD 1984 SC 192; Muhammad Azam v. The State 1996 SCMR 71; Muhammad Afzal and another v. Abdullah and others 1997 SCMR 278 and Muhammad Saeed v. The State PLD 1999 Kar 345 ref.

Nisar Ahmed Abro for Applicant.

Mushtaq Ahmed Korejo for the State.

2002 M L D 130

[Karachi]

Before Zahid Kurban Alavi and

Muhammad Mujeebullah Siddiqui, JJ

UNION SPORT PLAYING CARDS COMPANY‑‑---Appellant

Versus

COLLECTOR OF CUSTOMS and another‑‑‑Respondents

Special Custom Appeal No. 113 of 2000, heard on 15th August, 2001.

(a) Interpretation of Statutes‑‑‑‑

‑‑‑‑ Taxing statutes/laws‑‑‑While applying and implementing fiscal legislation, if the person sought to be taxed comes within the letter of the law, he must be taxed, however great the hardship may appear to the judicial mind to be on the other hand, if the Taxing Authorities seeking to recover a tax, cannot bring the subject within the letter of the law the subject is free, however apparently within the spirit of the law the case might otherwise appears to be.

(b) Interpretation of statutes‑‑‑

‑‑‑‑ Use of word and'‑‑‑Effect‑‑‑Normally the wordand' is used in disjunctive sense until and unless shown to be otherwise.

(c) Customs Act (IV of 1969)‑‑‑

‑‑‑‑‑S. 196‑‑‑Customs General Order No.1 of 1983, dated 9‑1‑1983 and Notification S.R.O. No.881(1)/80, dated 23‑8‑1980‑‑‑Import of duty free vehicle‑‑‑Claim of exemption‑‑‑Appellant was running an establishment in Export Processing Zone and disputed vehicle was imported for its establishment‑‑‑While employing the provisions of Notification S.R.O. No. 881(1)/80, dated 23‑8‑1980, the appellant claimed exemption from the import duty‑‑‑Initially the exemption was granted and the vehicle was imported duty free‑‑‑Customs Authorities, subsequently while holding that the vehicle imported. by the appellant did not enjoy exemption, withdrew the exemption and imposed penalty to the appellant‑‑‑Ground for the withdrawal of the exemption was that the vehicle was four‑wheel drive and no terrain in the Export Processing Zone existed where the vehicle could be used and furthermore the vehicle was a luxury vehicle‑‑‑Validity‑‑‑While holding that the vehicle imported by the appellant did not enjoy exemption, the Authorities had considered the facts which were not germane to the question of exemption available in law‑‑‑Existence of any terrain inside or outside Export Processing Zone, was totally immaterial as no such fact could be considered to interpret the relevant Customs General Order‑‑­Considerations made by the Customs Authorities were extraneous and irrelevant for the purpose of deciding the question of availability of exemption to the appellant under S.R.O. No.881(1)/80, dated 23‑8‑1980 and the relevant Customs General Order‑--‑Withdrawal of the exemption was against the law.

(d) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 196‑‑‑Customs General Order No. 1 of 1983, dated 9‑1‑1983‑‑­Notification S.R.O. No.881(1)/80, dated, 23‑8‑1988‑‑‑Import of duty free luxury vehicle by establishment working in Export Processing Zone‑‑‑Scope‑‑‑Under the exemption claimed and allowed under Customs General Order No.1 of 1983 as amended by Customs General Order No.22 of 1988, the restriction to the import of vehicle not exceeding 1600 c.c. engine capacity was applicable to second category of vehicle which is import of car for office use only and is not applicable to third category which pertains to the import of vehicle for transportation of labour‑‑‑No restriction/embargo exist on providing fully loaded luxury vehicle for the use of transporting its labour and executives.

(e) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 32(1) & 32(2)‑‑‑Customs General Order No. 1 of 1983, dated 9‑1‑1983 and Notification S.R.O. No.881(1)/80, dated 23‑8‑1980‑‑­Recovery of customs duty‑‑‑Show‑cause notice, issuance of ‑‑‑Limitation‑‑‑Vehicle imported by the appellant was issued exemption certificate and after a period of six months the Authorities issued show‑cause notice to the effect that the vehicle was not covered under the exemption given by the Government in the notifications‑‑‑Contention of the appellant was that the notice was time‑barred, hence the proceedings against the appellant were without lawful authority and of no legal effect ‑‑‑Validity‑­‑Neither there was any case of false statement or misdeclaration or filing of false certificate or any other documents on the part of appellant nor the Department had alleged any collusion by reason of any document or statement referred to in S.32(1) of the Customs Act, 1969‑‑‑Show‑cause notice could be issued by the Authorities under S.32(3) of the Customs Act, 1969 within a period of six months from the relevant date which was defined in S.32(5)(a) of the Customs Act, 1969, to be the date on which the order for clearance of the goods was made‑‑‑Show‑cause notice issued after six months was barred by limitation‑‑‑‑Notice being void, all subsequent proceedings in pursuance thereto were also void and without any legal authority‑‑‑High Court remanded the case to the Customs Authorities to decide the case afresh‑‑‑Appeal was allowed accordingly.

PIA v. CBR 1990 CLC 868 fol.

Abul Inam for Appellant.

Raja M. Iqbal for Respondents.

Date of hearing: 15th August, 2001.

2002 M L D 150

[Karachi].

Before Syed Zawwar Hussain Jaffery, J

ALLAH DITTO and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.452 of 2001, decided on 20th August, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.324/147/148/149‑‑‑Bail‑‑­Prosecution witnesses had sustained injuries on non‑vital parts of their bodies and it was yet to be determined if the accused intended to kill them‑‑‑Further inquiry was, therefore, required in respect of the guilt of accused‑‑‑Bail was allowed to accused accordingly.

Muhammad Akram v. The State1996 PCr.LJ 1881; Muhammad Afsar v: The State 1994 SCMR 2051; Muhammad Muzzafar v. The State 1995 PCr.LJ 1345; Karam Elahi v. The State PLD 1992 Pesh. 111 and PLD 1995 SC 34 ref.

Habibullah Shaikh for Applicants.

Nidamuddin Brohi for the State.

Mumtaz Ali Siddiqui for the Complainant.

Date of hearing: 20th August, 2001.

2002 M L D 162

[Karachi]

Before Muhammad Afzal Soomro, J

Syed INAM SHAH‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.323 of 2001, decided on 4th July, 2001.

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

‑ ‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss.337‑A(ii)/342/147/148/149‑‑­Pre‑arrest bail‑‑‑Principle‑‑‑Bail before arrest has to be granted in very exceptional circumstances where the involvement of the accused is due to mala fides and ulterior reasons and such mala fides are specifically alleged.

Muhammad Afzal v. The State 1997 SCMR 278; Muhammad Saeed v. The State PLD 1999 Kar. 345 and Muhammad Azam v. The State 1996 SCMR 71 ref.

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

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss.337‑A(ii)/342/147/148/149‑‑­Pre‑arrest bail‑‑‑No mala fides for the involvement of the accused in the case were alleged specifically though not required to be proved‑‑­Accused was not suffering from any kind of disease which could be termed as dangerous to his life or health‑‑‑Even if the case against accused did not fall within the ambit of the prohibition contained in S.497(1), Cr.P.C., the bail could not be granted to him in routine‑‑­Accused having not been able to make out a case for bail, interim pre‑arrest bail granted to him was recalled accordingly.

Syed Sultan Shah and another v. The State 2001 PCr.LJ 112; Muhammad Afzal v. The State 1997 SCMR 278; Muhammad Saeed v. The State PLD 1999 Kar. 345; Muhammad Azam v. The State 1996 SCMR 71; Muhammad Murad Khan v. Fazal‑e‑Sultan and another PLD 1983 SC 82; Ziaul Hassan v. The State PLD 1984 SC 192 and Muhammad Afzal v. Abdullah and another 1997 SCMR 281 ref.

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

‑‑‑‑Ss.497/498‑‑‑Bail in cases not falling within the prohibitory clause‑‑­Rule‑‑‑No hard and fast rule exists that in every case where the offence 'is not covered by the prohibitory clause of S.497(1), Cr.P.C., the bail can be granted as rule of thumb.

Ghulam Hyder Baloch for Applicant.

Muhammad Ismail Bhutto for the State.

2002 M L D 171

[Karachi]

Before S. Ahmed Sarwana and Muhammad Mujibullah Siddiqui, JJ

QASIM INTERNATIONAL CONTAINERS

TERMINAL LTD. ‑‑‑Appellant

Versus

QASIM FREIGHT STATION (PVT.)

LTD. and another‑‑‑Respondents

High Court Appeal No. 109 of 2001, decided on 31st May, 2001.

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

‑‑‑‑S.12(2)‑‑‑Setting aside of judgment, decree or order‑‑‑Plea of fraud, misrepresentation and want of jurisdiction‑‑‑Scope‑‑‑If any party is aggrieved by a judgment, decree or order on the ground of fraud, misrepresentation and want of jurisdiction, such party can file application under S.12(2), C.P.C. to challenge its validity.

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

‑‑‑‑S. 12(2) & O. 1, R.10‑‑‑Application under S. 12(2), C.P.C.‑‑‑Locus standi‑‑‑Aggrieved party‑‑‑Application was filed against the order of interim injunction‑‑‑Person who had assailed the order was not party to the proceedings but had filed application under 0.1, R.10, C.P.C.‑‑­Validity‑‑‑Only person who could have any grievance was the party against whom the order had been passed‑‑‑No other person could claim to be adversely affected by the interim order‑‑‑High Court, as Trial Court could not press the provisions or the spirit of S. 12(2), C.P.C., in the present circumstances, while considering the application under 0.1, R.10 C.P.C. filed by the person who was yet not a party to the proceedings.

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

‑‑‑‑O. I, R.10(2)‑‑‑Expression `necessary party'‑‑‑Connotation‑‑­Necessary parties under the Civil Procedure Code, 1908, are persons who ought to have been joined as parties and in whose absence no effective decree or order can be passed

Pakistan v. Abdul Wali Khan PLD 1975 SC 463; Muhammad Kalim Khan v. Muhammad Farouk Khan PLD 1987 Kar. 38 and Muhammad Sadiq v. Muhammad Rafiq 1985 SCMR 376 ref.

(d) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 41(2)‑‑‑ Stay of proceedings pending before Court ‑‑‑ Invoking provision of S.41(2) of Arbitration Act, 1940, by person having no arbitration agreement ‑‑‑Scope ‑‑‑Application under S.41(2) of the Arbitration Act, 1940, cannot be filed by a party unless some arbitration proceedings are pending between him and another party or unless the person has sought assistance of the Court for enforcement of an arbitration clause.

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

‑‑‑‑S. 12(2) & O. I, R.10‑‑‑Arbitration Act (X of 1940), S.41‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Intra‑Court Appeal ‑‑‑Impleading a person as necessary party‑‑‑Filing of application under S.12(2), C.P.C. by intervenor‑‑‑Matter was pending between two parties having arbitration agreement between them‑‑‑Single Judge of High Court in exercise of powers under S.41(b) of the Arbitration Act, 1940, had granted ad interim relief to the appellants ‑‑‑Intervenor filed application under O. I, R.10, C.P.C., to be impleaded as party to the proceedings and also filed application under S.12(2), C.P.C., for setting aside the ad interim injunction granted in favour of the appellants‑‑‑Single Judge of High Court as Trial Court had allowed both the applications filed by the intevenor and allowed him to join the proceedings as defendant and set aside the interim injunction by applying the provisions of S.12(2), C.P.C.‑‑‑Validity‑‑‑Where a third party could not join the arbitration proceedings on account of absence of arbitration clause between the third party and the parties who were involved in the arbitration proceedings, third party could not intervene and contend that it should be made a party to the ancillary proceedings and heard before any order in the ancillary proceedings was passed ‑‑‑Intervenor was neither a proper nor a necessary party to the proceedings and the order passed by the Single Judge of High Court allowing the application of the intervenor under 0.1, R.10, C.P.C. and directing the appellants to file amended title of the petition was set aside ‑‑‑Intra‑Court Appeal was allowed accordingly.

(f) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S.41‑‑‑ Civil Procedure Code (V of 1908), Preamble‑‑‑Proceedings under S.41 of the Arbitration Act, 1940‑‑‑Provisions of Civil Procedure Code, 1908 ‑‑‑Applicability ‑‑‑Provisions of C.P.C. are applicable to the proceedings under S.41 of the Arbitration Act, 1940.

Mst. Afroze Jehan v. Mst. Noor Jehan and others 1988 CLC 1318 ref.

Shaiq Usmani for Appellant.

Rashid A. Razvi for Respondent No. 1.

Arif Khan for Respondent No.2.

Date of hearing: 31st May, 2001.

2002 M L D 180

[Karachi]

Before Sabihuddin Ahmed and Ghulam Rabbani, JJ

Messrs STATE CEMENT CORPORATION OF

PAKISTAN, NELSON CHAMBERS

through General Manager‑‑‑Appellant

Versus

COLLECTOR OF CUSTOMS and another‑‑‑Respondents

Special Custom Appeals Nos.49, 43, 46, 47 and 54 of 1998, heard on 25th October, 2000.

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S.32(1)(3)‑‑‑SA.0~. 286(1)/84, dated 4‑4‑1984‑‑‑S.R.O. 379(1)/92, dated14‑5‑1992‑‑‑Misdeclaration‑‑‑Recovery of duty ‑‑‑Limitation‑‑­Appellants imported machinery chargeable to 20% ad valorem customs duty, which was raised to 30% after enforcement of Finance Act, 1992, but was reduced to 10% by a subsequent notification‑‑‑Appellants paid customs duty @ 10°% and got the goods cleared by furnishing indemnity bond for remaining 20%‑‑‑Indemnity bond was subsequently discharged‑‑‑Appellants, after 2 years of arrival of goods, were directed by the Department to pay the difference between 30% duty leviable and 10 % duty paid with penalty ca 10 % on the ground of having availed benefit of exemption through a misdeclaration‑‑‑Tribunal dismissed appeal by the appellants‑‑‑Validity‑‑‑Rate of duty declared by appellants in bill of entry was 30% wherein concessionary rate in terms of S.R.O. No.286(1)/84 dated 4‑4‑1984 (as amended) was also claimed‑‑‑No conscious misdescription of fact in such circumstances, could be attributed to the appellant‑‑‑Customs officials charged with function to collect customs duty while accepting the appellant's interpretation about relevant notification had released the goods upon payment of 10% duty‑‑­Short payment of duty could only be attributed to misconstruction or error in interpretation of relevant notification, which could not 4e deemed to be a false declaration in terms of S.32(1) of Customs Act, 1969‑‑‑Short fall in duty could not be recovered after expiry of period of 6 months as prescribed in S.32 (3) of Customs Act, 1969‑‑‑Appellants could not be foisted with liability arising from gross negligence of public official‑‑‑Government, however, could recover from its officials losses suffered through negligence or breach of orders under Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑Appeals were allowed and impugned orders were set side.

Government of Pakistan v. Quetta Textile Mills Civil Appeal No.860‑K of 1990 and Federation of Pakistan v. Ibrahim Textile Mills Ltd. 1992 SCMR 1898 ref.

(b) Customs Act (IV of 1969)‑‑‑‑

‑‑‑‑S. 32(3)‑‑‑ Misdeclaration ‑‑‑Erroneous interpretation of statutory notification could not be deemed to be a false declaration in terms of S.32(1) of Customs Act, 1969.

Zamiruddin Ahmed for Appellant.

Raja Muhammad Iqbal for Respondents (in Appeals Nos. 46, 47 and 54 of 1998).

Jawaid Farooqui for Respondents (in rest of Appeals).

Date of hearing: 25th October, 2000.

2002 M L D 209

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

Mst. ATIA KHANUM‑‑‑Plaintiff

versus

Messrs SAADABAD COOPERATIVE HOUSING SOCIETY LTD. and others‑‑‑Defendants

Suit No.652 of 2000 and Miscellaneous Application No: 3364 of 2001, decided on 27th August, 2001.

(a) Interpretation of statutes‑‑‑

‑‑‑‑ Intention of Legislature‑‑‑Determination of‑‑‑Principles‑‑‑No word or expression or any part of a section is to be read in isolation‑‑‑In order to ascertain the intention of Legislature, the entire section is to be read in its totality‑‑‑Entire statute is to be read together and all the relevant provisions in a statute are to be read together and the conclusions are to be drawn which emerge out of the totality of a scheme contained in the statute, in a manner which is harmonious with all the relevant provisions contained in an enactment‑‑‑Very rare that a particular section is found a complete code in itself in any statute‑‑‑General rule is that all the relevant provisions in the statute are to be considered in their totality in a way that the scheme envisaged in the law is applied in its totality without doing violence to any other provisions of law and without rendering any other section in' the statute to be redundant, superfluous, nugatory or otiose.

(b) Interpretation of statutes‑‑‑

‑‑‑‑Non obstante clause‑‑‑Effect‑‑‑Section of statute which starts with non obstante clause would always have the effect of overriding the' provision contained in the statute or in any other law.

(c) Cooperative Societies Act (VII of 1925)‑‑‑

‑‑‑‑Ss. 70 & 70‑A(1)‑‑‑Suit touching the business of Cooperative Society‑‑‑Procedure‑‑‑Suit envisaged under S.70 of the Cooperative Societies Act, 1925, is to be filed in accordance with the provisions expressly provided in the Cooperative Societies Act, 1925, and not otherwise if the subject‑matter of the suit is within the jurisdiction of the authorities mentioned in S.70‑A(1)(a) of the Cooperative Societies Act, 1925.

(d) Cooperative Societies Act, (VII of 1925)‑‑‑

‑‑‑‑Ss. 54, 70 & 70‑A‑‑‑Suit against Cooperative Society‑‑­Maintainability‑‑‑Cancellation of plot of land by the Society‑‑‑Notice addressed to Secretary of Cooperative Society‑‑‑Plaintiff being member of defendant Cooperative Society had filed the suit‑‑-Disputed plot was allotted to the plaintiff and due to failure on the part of the plaintiff to pay utility charges, the Society cancelled the allotment‑‑‑Instead of addressing the notice under S.70 of the Cooperative Societies Act, 1925, to the Registrar of the Cooperative Societies, the same was addressed to the Secretary of the Society‑‑‑Objection to the jurisdiction of Civil Court was raised by the Society‑‑‑Validity‑‑‑Jurisdiction of Civil Court in respect of the matters specified in S.70‑A(1)(a)(b)(c) of the Cooperative Societies Act, 1925, was excluded‑‑‑Where the dispute forming subject‑matter of the suit was within the competence and jurisdiction of the Registrar or his nominee or the Arbitrator under S.54 of the Cooperative Societies Act, 1925, the suit was not maintainable.

1991 CLC 1917; 1991 CLC 758; 1991 CLC 192; 1993 MLD 2464; PLD 1987 Kar. 676; PLD 1966 Kar. 177; 1980 CLC .1721; 1984 CLC 2194 and PLD 1981 Kar. 604 distinguished.

Pir Illahi Bux Cooperative Housing Society Ltd. v. K.B. Sanaullah PLD 1968 Kar. 680; Farida v. Prince Apartments Cooperative Housing Societies 1984 CLC 2914; Muhammad Azim v. Pakistan Employees Cooperative Housing Society Ltd., Karachi PLD 1985 Kar 481 and Lyallpur Motor Company v. Standard Cooperative Bank Ltd.

1974 SCMR 226 ref.

(e) Cooperative Societies Act (VII of 1925)‑‑‑

‑‑‑‑Ss. 54, . 70 & 70‑A‑‑‑Disputes relating to Cooperative Society‑‑­Provisions of Ss. 54, 70 & 70‑A of the Cooperative Societies Act, 1925‑‑‑Scheme of the legislation detailed.

When all the three sections 54, 70 and 70‑A of the Cooperative Societies Act, 1925 are read together, the scheme of the legislation which emerges, is as follows:‑‑

(a) By virtue of the provisions contained in section 70‑A, the jurisdiction of Court is absolutely barred in respect of the matters mentioned in clauses (a), (b) and (c) of subsection, (1) of section 70‑A read with the provisions contained in section 54.

(b) Notwithstanding, the bar contained in section 70‑A, the suit can be filed under the provisions expressly provided in the Cooperative Societies Act, 1925.

(c) One of the provisions expressly provided in the Act pertaining to the filing of suit by any party is contained in proviso to section 54. It envisages that any dispute touching the business of Society shall be referred first to the Registrar and then if the Registrar is of the view that there is any question or issue involving complicated questions of law and fact, the Registrar may if he thinks fit suspend the proceedings in the matter, until the question has been tried by a regular suit instituted by one of the parties or by the Society. Thus, if any suit is filed under this provision neither any notice under section 70, shall be required to be served on the Registrar nor the jurisdiction of the Court shall be barred.

(d) The second express provision in the Act, is contained in section 70. Section 54 and section 70 are to be read together. As already observed, any dispute touching the business of a society is to be referred to the Arbitration envisaged under section 54. However, the Legislature has not left an aggrieved person completely at the mercy of Registrar, by enacting the provisions contained in section 70. Section 70 is couched in negative language which prima facie excludes the filing of suit against the Society or any of its officers in respect of any act touching the business of the Society and it is in consonance with the provisions contained in section 54 and section 70‑A. But, thereafter an exception is provided which is to the effect that if after expiry of two months next after notice in writing has been delivered to the Registrar stating therein specifically the relief which a person claims and the Registrar does not initiate any arbitration proceedings then such inaction on the part of Registrar shall confer a right on an aggrieved person to file a suit in the Court and the bar on the jurisdiction of the Court shall be lifted. Here it will be seen that when sections 54, 70 and 70‑A are read together the wisdom of the Legislature crystallises and we find that the intention of the legislature that the matters pertaining to the disputes touching the business of Society should normally and initially be referred to the Registrar and once the matter is .referred and the Registrar initiates proceedings the jurisdiction of Courts is barred. However, if the Registrar fails, neglects or avoids to initiate proceedings, an aggrieved person shall serve a notice under section 70 and if Registrar initiates proceedings‑within a period of two months, the jurisdiction of the Court shall be barred and an aggrieved person shall have no right to institute a suit in the Court. Suit instituted if any shall be barred under section 70‑A. Likewise if no notice under section 70 is delivered to the Registrar specifically stating the relief sought, the suit shall not be maintainable.

(f) Cooperative Societies Act (VII of 1925)‑‑‑

‑‑‑‑Ss. 54 & 70‑‑‑Notice to Registrar‑‑‑Necessary details‑‑‑Requirement of‑‑‑Plaintiff had not specifically referred the dispute pertaining to the demand and its effect to the Registrar under S.54 of the Cooperative Societies Act, 1925, and further in the notice the relief claimed in the suit had not been stated and the Registrar had been merely requested to issue direction to the Society to avoid complications and litigation and to refrain from taking any adverse action against the plaintiff ‑‑‑Validity‑‑Such notice was not in consonance with the requirement of S.70 of the Cooperative Societies Act, 1925‑‑‑Suit was not maintainable in circumstances.

M. Akram Zuberi for Plaintiff.

Shabbir Ahmed Shaikh for Defendant No.2

2002 M L D 226

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

AZIZUL HAQ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 177 of 2000, heard on 1st December, 2000.

Sindh Children Act (XII of 1955)‑‑‑

‑‑‑‑S. 68(1) & (2)‑‑‑Penal Code (XLV of 1860), 5.364‑A‑‑‑Appreciation of evidence ‑‑‑F.I.R. had been registered without any loss of time‑No enmity was alleged between the accused and the school teacher for falsely implicating the accused‑‑‑Kidnapped child had been recovered on the pointation of accused‑‑‑Prosecution had established the guilt of accused beyond any doubt‑‑‑Contention that the accused was entitled to acquittal as he had attained the age of 18 years during the pendency of the trial had no force‑‑‑Sentence of 14 years' R.I., awarded to accused, however, was patently illegal as according to the provisions of S.68(1) of the Sindh Children Act, 1955, no youthful offender could be sentenced to death or imprisonment for life or imprisonment‑‑‑Sentence of accused was consequently set aside and the matter was referred to the Provincial Government for orders under S.68(2) of the Sindh Children Act, 1955‑‑­Accused in the meantime was directed to be kept in safe custody in the Juvenile Offenders Jail till decision of the reference by the Provincial Government in the light of the judgment of Supreme Court reported as 1993 SCMR 1551.

Abdul Jabbar v. The State 1992 PCr.LJ 101; Gopal v. The State 1979 PCr.LJ 590; Bacho v. The Strate 1981 PCr.LJ 299; Ashiq Ali v. The State 1984 PCr.LJ 2000; Amjad Ali v. The State 1985 PCr.LJ 428; Zar Muhammad v. The State 1990 PCr.LJ 1756; Din Muhammad v. Province of Sindh 1990 PCr.LJ 605 and Province of Sindh v. Din Muhammad 1993 SCMR 1551 ref.

Ali Ahmed Jan Bangash for Appellant.

Sharafat Ali Khan for the State.

Date of hearing: 1st December, 2000.

2002 M L D 253

[Karachi]

Before Ghulam Nabi Soomro and Ata‑ur‑Rehman, JJ

NAQEEBULLAH and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.23 of 2001, heard on 2nd May, 2001

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

‑‑‑‑S.9(c)‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4‑‑‑Appreciation of evidence‑‑‑Independent public Mashir had not supported the prosecution case and he was declared hostile‑‑­Nothing fruitful had come out from the cross7examination of such witness‑‑‑Second Mashir who was Excise Constable and subordinate to the complainant had admitted that he saw Charas at the Excise Police Station for the first time whereas at the place of occurrence he saw only the bag‑‑‑Said witness during the cross‑examination was not shown the case property nor same was produced through him‑‑‑Said Mashir was recalled and re‑examined, after four months when the case property was formally shown to him in Court‑‑‑Said Mashir was made to act as Mashir in several cases‑‑‑Such, a subordinate whose evidence suffered from such omission and commission could not be relied upon‑‑‑Two Excise Inspectors who had signed as witnesses the Mashirnma of recovery of Charas and arrest of the accused from the place of occurrence, were not examined‑‑‑Non‑examination of the Inspectors particularly in view of the evidence of the Mashir would adversely affect the prosecution case and inference could be easily drawn that even if they were examined, they would not have supported the prosecution‑‑‑Prosecution evidence was not above board and fit for implicit reliance ‑‑‑Conviction and sentences' awarded to the accused by the Trial Court were set aside and they were acquitted.

Aman Khattak for Appellants.

Habib Ahmed, A.A.‑G. for the State.

Date of hearing: 2nd May, 2001.

2002 M L D 259

[Karachi]

Before Wahid Bux Brohi, J

ZAFAR RAJPOOT‑‑‑Applicant

versus

S.D.M. and 2 others‑‑‑Respondents

Criminal Miscellaneous Application No.3V and Miscellaneous Application No. 532 of 2001, decided on 4th June, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 561‑A‑‑‑Sindh Crimes Control Act (IV of 1975), Ss.5, 6 & 14(iv)‑‑‑Quashing of proceedings‑‑‑Applicant was detained under S.14(iv), Sindh Crimes Control Act, 1975 on the ground that there was a complaint against him that he was an active worker of a party and sheltered the criminals who stayed with him and that he often created terror at the point of fire‑arm and caused strikes in the city‑‑­Report on the basis of which action was taken against the applicant was ex facie defective owing to non‑compliance of Ss. 5 & 6 of Sindh Crimes Control Act, 1975 as applicant was neither summoned nor copy of report against him was supplied to him‑‑‑Report against the applicant contained general allegations which were wholly different from the provisions of S.14(iv) of Sindh Crimes Control Act, 1975‑‑‑Proceedings against the accused were quashed in circumstances.

Muhammad Hussain v. The State 1999 PCr.LJ 191; Suleman and another v. Sub‑Divisional Magistrate, Larkana and another 2000 PCr.LJ 886 and Tanveer Hussain alias Kobra v. The State and 2 others 2000 PCr. LJ 1169 ref., Allah Bachayo for the Applicant.

Ali Azhar Tunio, Asstt. A.‑G.

Date of hearing: 4th June, 2001.

2002 M L D 304

[Karachi]

Before Muhammad Roshan Essani and S.A. Rabbani, JJ

ISLAMUDDIN SHEIKH‑‑‑Applicant

versus

NATIONAL ACCOUNTABILITY COURT NO. 1 and another‑‑‑Respondents

Special Revision No. 115 and Miscellaneous No. 1715 of 2001, decided on 7th September, 2001.

National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑S. 32 [as amended by National Accountability Bureau (Amendment) Ordinance (XXXV of 2001)]‑‑‑Revision‑‑­Maintainability‑‑‑Trial Court referred the accused/applicant to Civil Hospital for examination‑‑‑Such order of the Trial Court had been challenged by the accused in revision application‑‑‑Revision application was resisted on the ground that revisional power having expressly been taken away by National Accountability Bureau (Amendment) Ordinance, 2001, revision was not maintainable and applicant could approach the Trial Court for further orders in the matter‑‑‑Powers of revision under the Amending Ordinance had not been taken away altogether, but had been given in appropriate cases and in case of the accused/applicant there was no occasion for filing of the revision and he could approach the Trial Court for further relief.

Farooq H. Naik for Applicant.

Khursheed A. Hashmi, Dy.A.‑G. for the State.

Muhammad Anwar Tariq for NAB.

2002 M L D 311

[Karachi]

Before Muhammad Roshan Essani and S.A. Rabbani, JJ

MAQSOOD AHMED KHAN‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No. 170 of 2001, heard on 29th August, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 561‑A‑‑‑Penal Code (XLV of 1860), Ss.420, 468, 471, 477‑A & 34‑-‑Quashing of proceedings‑‑‑Applicant had been sent up for trial under Ss.420, 468, 471, 477‑A & 34, P.P.C. but nothing in the shape of opinion of Handwriting Expert or specimen signatures or any other material was pointed out to substantiate for the charge of forgery for cheating and/or fabrication of accounts as envisaged by Ss.420, 468, 471, 477‑A & 34, P.P.C.‑‑‑Only question for consideration was as to whether the act/omission of the accused amounted to cheating within the meaning of S.415, P.P.C.‑‑‑Validity‑‑‑Dividing line between a case of breach of contract and a case of cheating was often very difficult to draw‑‑‑Ingredients of offence under 5.420, P.P.C. were to a substantial extent available in most cases of breach of contract‑‑­Distinction between a case of mere breach of contract and one of cheating depended upon the intention of the accused at the time of alleged inducement which could be judged by his subsequent act, but of which the subsequent act was not the sole criterion‑‑‑To establish case under 5:420, P.P.C., there should be clear evidence to the effect that the accused had a guilty mind from the very outset but such evidence was lacking in the, case against the applicant which was merely a case of delayed payment to the complainant Bank‑‑‑No evidence was available to the effect that the applicant had a guilty mind from the very outset‑‑‑Applicant had paid all the dues of the complainant Bank and there remained nothing to be paid‑‑‑Such subsequent conduct of the applicant had clearly shown that he had no intention to cheat the complainant Bank and cause any wrongful loss to it‑‑‑Broken promise by itself would not bring the case within the mischief of cheating‑ ‑‑Continuation of further proceedings pending against the accused in the Trial Court would amount to an exercise in futility‑‑‑There being other accused persons in the F.I.R. alongwith the applicant who had not been impleaded though, yet their cases were inseparable, but as power of the High Court under S. 561‑A, Cr.P.C. was not dependent upon the application of a particular person, the proceedings in the F.I.R. were ordered to be quashed generally in the circumstances.

M.M.S.T. Chidambram Chettiar v. Shanmugham Pillai AIR 1938 Mad. 129 ref.

A.Q. Halepota and M. Ilyas Khan for Applicant.

S. Zaki Muhammad, Dy.A.‑G. for the State.

Nafees Ahmed Siddiqui for the UBL/Complainant.

Date of hearing: 29th August, 2001.

2002 M L D 320

[Karachi]

Before Muhammad Roshan Essani, J

NARAIN‑‑‑Applicant

versus

JAWAID KHAN and 4 others‑‑‑Respondents

Criminal Miscellaneous No.367 of 2001, decided on 23rd July, 2001

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 491 & 561‑A‑‑‑Application for search, recovery and production of the alleged detainees in the Court‑‑‑Plain reading of the averments made in the application had revealed that there was a dispute between the tenant and the landlord for which exclusive jurisdiction lay with the Tenancy Tribunal created under Tenancy Act, 1950‑‑‑Applicant could exhaust remedy before the proper forum, provided under the law‑‑­Application was dismissed being not maintainable.

Ghulam Mullah Chang for Applicant.

Rashid Ahmed Qureshi, Asstt. A.‑G. for Respondent

Date of hearing: 23rd July, 2001

2002 M L D 372

[Karachi]

Before Muhammad Roshan Essani and Faiz Muhammad Qureshi, JJ

Mian NISAR AKHTAR and another‑‑‑Applicants

versus

THS STATE‑‑‑Respondent

Criminal Revision Application No.65 of 2001, decided on 6th September, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.222 & 439‑‑‑Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), S.5(8)‑‑‑Framing of charge‑‑‑Mandatory under provisions of S.222(1)(2), Cr.P.C. that charge should contain all material particulars as to time, place, the specific name of the alleged offence, the manner in which the offence was committed and particulars of the accused so as to afford the accused opportunity to explain the matter with which he was charged‑‑‑Purpose behind giving such opportunity was that the person against whom such charge was framed should prepare his case accordingly and should not be misled in preparing his defence‑‑‑Charge being the very start of the trial it was the stage when the accused should be faced with the accusation levelled by the prosecution against him so that he should keep such material in his mind during the proceedings of the trial‑‑‑Charge not having been framed in accordance with mandatory provisions of S. 222(1)(2), Cr.P.C., order passed by the Trial Court was set aside by the High Court in revision with direction to amend the charge according to law.

1992 PCr. LJ 1781; 1999 PCr. LJ 2086 and 1994 MLD 1493 ref.

Abdul Hafeez Lakho for Petitioners.

S. Tariq Ali, Standing Counsel for the State.

Date of hearing: 4th September, 2001.

2002 M L D 381

[Karachi]

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

MAQBOOL AHMED SHAIKH ‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.326 of 2001, decided on 5th October, 2001.

National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑S.16‑‑‑Criminal Procedure Code (V of 1898), S.561‑A ‑‑‑ Application for quashing of proceedings‑‑‑Reference was filed by the National Accountability Bureau against the applicant who was Minister for Food and Agriculture at the relevant time and certain other persons alleging that all such persons in collusion and in connivance with each other and in violation of law through deceitful means had obtained illegal and wrongful gain and had caused huge loss to the public exchequer‑‑­Representative of National Accountability Bureau at the time of arguments had conceded that the applicants had neither caused any loss to the Government nor had violated any law‑‑‑Effect‑‑‑Prosecution of the applicants, in circumstances, would be an abuse of law and procedure‑‑­High Court, in exercise of its jurisdiction under S.561‑A, Cr.P.C. quashed proceedings pending before Accountability Court against the applicants.

Khan Asfandyar Wali v. The State PLD 2001 SC 607 ref.

Kamal Azfar and Ali Ahmed Junejo for Applicant.

Raja Qureshi, A.‑G., Sindh for the State.

Dates of hearing: 3rd and 5th October, 2001

2002 M L D 390

[Karachi]

Before Zahid Kurban Alavi, J

ABBASS and 5 others‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.767 of 2001, decided on 13th November, 2001.

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

‑‑‑‑S.497(1), fourth proviso‑‑‑Hardened criminal‑‑‑In order to establish the fact whether the accused is a hardened criminal it is not enough to look into the incident which had occurred or as to how gruesome or heinous it was, but it is necessary to show that the accused was involved in other crimes which would, prima facie, establish him to be a person who was regularly involved in crime.

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

‑‑‑‑S.497(1), third proviso‑‑‑Penal Code (XLV of 1860), Ss.302/324/114/147/148/149‑‑‑Bail on ground of statutory delay‑‑‑Fight in the present case related to land‑‑‑Nobody was a hardened or desperate criminal‑‑‑Accused were facing murder charge and were behind the bars' for two years‑‑‑Accused were admitted to bail In circumstances.

Shoukat Ali v. Ghulam Abbas 1998 SCMR 228; Muhammad Yousif v. State 2000 SCMR 79; Mashooq v. State 2000 PCr.LJ 874; Molnuddin v State 2000 PCr. LJ 904; Zahid Hussain Shah v. State 1995 SCMR 49; Essa Khan v. State 2001 MLD 971; Abdur Rashid v. State 1998 SCMR 897 and Sahib Khatoon v. Bukhshal 2001 MLD 229 ref.

Muhammad Ayaz Soomro for Applicants.

Mushtaque Ahmed Kourejo for the State.

2002 M L D 400

[Karachi]

Before Zahid Kurban Alavi and Sarmad Jalal Osmany, JJ

JAVED AHMED ---Applicant

versus

THE STATE---Respondent

Criminal Bail J Application No. S-624 and Miscellaneous Applications Nos. 1189 and 1311 of 2001, decided on 25th October 2001.

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

----S497---Penal Code (XLV of 1860), S.365-A---Anti-Terrorism Act (XXVII of 1997), S.7---West Pakistan Arms Ordinance (XX of 1965), S.13-D---Bail, grant of ---F.I.R. was lodged after considerable delay of six days---Complainant, abductee and two prosecution witnesses had ruled out the possibility of commission of offence at the hands of accused through affidavits before Trial Court and shifted the burden of implicating the accused in F.I.R. and 5.161, Cr.P.C. statements on the police making the case of two versions which had called for further inquiry---No weapon of offence was recovered from the accused---Bail was allowed to accused in circumstances.

Muhammad Ayaz Soomro for Applicant.

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

2002 M L D 409

[Karachi]

Before Zahid Kurban Alavi and Muhammad Mujeebullah Siddiqui, JJ

SUJAT ALI KHAN---Petitioner

versus

FEDERATION OF PAKISTAN and others-- -Respondents

Constitutional Petition No. D-1407 of 1999, heard on 27th September, 2001. .

Public Debt Act (XVIII of 1944)----

----S. 11(1)---Five Years Foreign Currency Bearer Certificate Rules, 1992, R. I1---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Foreign Currency Bearer Certificates---Issuance of duplicate certificates---Original certificates purchased by the petitioner were lost and his request for issuance of their duplicate was refused by the Bank--Validity---Petitioner had never filed any claim of loss with State Bank of Pakistan but it had continued to harp on the tune that no claim could be entertained under R. 11 of Five Years Foreign Currency Bearer Certificate Rules. 1992---State Bank of Pakistan and its functionaries had failed to perform their duty under S.11(1) of Public Debt Act, 1944, the provisions whereof were free from any ambiguity and there could be no difficulty to act upon them---State Bank of Pakistan instead of helping the person in distress in accordance with law had acted in a manner unwarranted and not expected of such a highly responsible Institution--­High Court accepted the Constitutional petition and directed the State Bank of Pakistan to hold inquiry under S.11(1) of Public Debt Act. 1944 and on satisfying about the loss of security (Foreign Currency Bearer Certificates), issue duplicate security payable to petitioner on payment of prescribed fee, which would be encashable in accordance with law.

Muhammad Azim v. Muhammad Aslam 2000 YLR 1043 ref.

Ms. Sofia Saeed for Petitioner.

M.K. Shikoh and A.H. Mirza for Respondents Nos.2 and 3.

Date of hearing: 27th September, 2001.

2002 M L D 443

[Karachi]

Before Wahid Bux Brohi, J

TARIQ---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 1235 of 2001, decided on 4th October, 2001.

Criminal Procedure Code (V of 1898)---

----S.497---Prohibition (Enforcement of Hadd) Order (4, of 1979), Arts.3/4---Bail, grant of---Charge-sheet was silent about the essential requirement of forwarding the recovered heroin powder to Chemical Examiner for analysis---State Counsel also could not produce Chemical Examiner's Report and he was also not able to find out entry in that respect in the police papers/diaries---Provisions of.S.9(a) of Control of Narcotic Substances Act, 1997, a parallel Statute, had prescribed punishment of two years in case of involving heroin powder weighing 100 grams or less whereas in the present case only 12 grams was secured from the possession of the accused and 10 grams from the other accused---Accused was released on bail, in circumstances.

Dr. Muhammad Shafiq Bol Khan v. Hafiz Muhammad Taqi 1986 MLD 2220 and Shahid Javed v. The State 1990 PCr.LJ 1153 ref.

Faridul Hassan Shah for Applicant.

Sharafat Ali Khan State Counsel for the State.

Date of hearing: 4th October, 2001.

2002 M L D 447

[Karachi]

Before Syed Zawwar Hussain Jaffery and Muhammad Afzal Soomro, JJ

MUNEERUDDIN---Appellant

versus

THE STATE---Respondent

Criminal Jail Appeal No.3, Confirmation Case No.l and Civil Miscellaneous Application No. 1127 of 2001, decided on 29th August, 2001.

Penal Code (XLV of 1860)----

----Ss. 302/309/310/338-E---West Pakistan Arms Ordinance (XX of 1965), S.13-D---Criminal Procedure (V of 1898), S.345--- Compounding of offence---During pendency of appeal against conviction and sentences awarded by the Trial Court to the accused, a compromise was arrived at between the parties---Legal heirs of the deceased present in Court had affirmed through their affidavits and statements that they had forgiven the accused in the name of Allah--­Waiver of compounding the offence in case falling under Ss.309 & 310, P.P.C., being available to the accused and the legal heirs of the deceased, application filed under S.345, Cr.P.C. for compounding the case was accepted and conviction and sentence of the accused were set aside in terms of compromise arrived at between the parties and the accused was released forthwith.

Safdar Ali and others v. The State and others PLD 1991 SC 202; Muhammad Mazhar v. The State 1992 PCr.LJ 443; Ghulam Rasool and others v. The State 1995 PCr.LJ 1327 and Abdul Hussain alias Noor Hassan alias Hanan v. The State 1999 PCr.LJ 1936 ref.

Aziz Ahmed Khawaja for Appellant.

Ghulam Sarwar Korai for the State.

2002 M L D 451

[Karachi]

Before Muhammad Moosa K. Leghari, J

MEHBOOB ALI‑ Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.64 of 1995, decided on 11th September, 2001.

Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑Ss. 302/306/308‑‑‑Appreciation of evidence‑‑‑Deceased was the wife of the accused and the daughter of the deceased from the accused was the Wali of the victim ‑‑‑Qatl‑i‑Amd committed by the accused was not liable to Qisas‑‑‑Conviction and sentence awarded to the accused under S.302, P.P.C. could not be maintained‑‑‑Conviction and sentence awarded to the accused were set aside and the case was remitted to the Trial Court for fresh decision strictly in accordance with law.

Khalil‑uz‑Zaman v. Supreme Appellate Court, Lahore and 4 others PLD 1994 SC 885 ref.

Muhammad Ishaque Khoso for Appellant.

Ghulam Shabbir Memon for A.‑G. for the State.

Date of hearing: 11th September, 2001.

2002 M L D 459

[Karachi]

Before Muhammad Ashraf Leghari, J

Mst. RANI BEGUM --- Petitioner

versus

MURAD BIBI and another---Respondents

Constitutional Petition No.220 of 2000. decided on 25th September, 2001.

Penal Code (XLV of 1860)---

---S.182---Criminal Procedure Code (V of 1898), S.195--­Constitution of Pakistan (1973), Art. l99 --Constitutional petition--­ Registration of F.I.R.---In a case registered against the accused under S.1 I of the Offence of- Zina (Enforcement of . Hudood) Ordinance, 1979, Police had submitted report under S.169, Cr.P.C., regarding her ,.false, involvement therein on account of deficient evidence against her---Case sent up against accused ended in her acquittal under S.265-K, Cr.P.C., by the Trial Court---Accused had sought for a direction to the police for registration of a case against the complainant under S.182. P.P.C.---Cognizance under S.182. P.P.C., could only be taken by the Court on the complaint made by the concerned public servant to whom the false report was given or by some other public servant to whom he was subordinate as provided by S.195, Cr.P.C.---No such direction could, therefore, be issued to the police by High Court under its Constitutional jurisdiction to register the F.I.R.---C6nstitutional petition was misconceived and was dismissed in limine accordingly.

A. Karim Ayoob Memon for Petitioner.

Ali Ahmed Jan Bangash for Respondent No.2.

Habib Rasheed holding brief for Fazalur Rehman for the State.

Date of hearing: 25th September 2001.

2002 M .L D 472

[Karachi]

Before Muhammad Roshan Essani and S.A. Rabbani, JJ

QURBAN ALI JATOI‑‑‑Applicant

versus

CHAIRMAN, NAB and others‑‑‑Respondents

Criminal Bail Application No.1043 of 2001, decided on 13th September, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), S.9(v)‑‑‑Bail‑‑‑Accused owned only one house inherited by him from his parents‑‑‑Nothing was available on record to show that the relatives or associates of the accused were holding the remaining properties as "Benamidars" or they were dependents of the accused‑‑­No evidence was produced to show if the said persons had any independent source of income of their own or not who had even filed Constitutional petitions with the averments that the accused was neither the owner of their properties, nor he had any right or title therein‑‑‑Properties annexed with the charge could not be said to be "Benamies" at such stage and the case against accused necessitated further inquiry‑‑‑Bail was allowed to accused in circumstances.

Imtiaz Ahmad v. The State PLD 1997 SC 545 ref.

Abdul Qadir Halepota for Applicant.

Amir Raza Naqvi and Sarfraz Khan Tanoli for Respondents.

Date of hearing: 3rd September, 2001.

2002 M L D 480

[Karachi]

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

MISBAHUDDINFAREED---Appellant

versus

THE STATE---Respondent

Criminal Accountability Appeal No. 13 of 2001, decided on 7th October, 2001.

National Accountability Bureau Ordinance (XVIII of 1999)--

----Ss.9(a)(iv)(v) & 10---Appreciation of evidence---Accountability Court, on a reference by Chairman, National Accountability Bureau framed charges against the accused for possessing properties disproportionate to his known sources of income, constituting a charge of corruption and corrupt practices- --Allegation mentioned in the charge was that the accused was maintaining account in which there was a transaction/deposit of Rs.34,00,000 and that he purchased a car in the name of his wife---Statements of account produced by the prosecution on the record of the Trial Court had shown that account of the accused never had a balance alleged in the charge against him on one date, but it was the whole transaction during 9 years and finally the said account became inoperative with balance of Rs.42.11 in the end---Accused had given explanation for various deposits in his account and that version of the accused had been supported by his uncle who had been supporting him financially---Uncle of the accused was examined and he supported the version of accused---Total rejection of evidence of the accused on that point would be arbitrary as possibility existed for the version of accused being true which had created a doubt in the prosecution case---Evidence of the wife of the accused in respect of car was that it was gifted to her by her brother---No reason existed to discard and reject the version of his wife---Two items mentioned in charge against the accused had not been proved by the prosecution beyond reasonable doubt—Accused being entitled to benefit of doubt was acquitted in circumstances.

Khan Asfandyar Wali v. The Federation of Pakistan PLD 2001 SC 607 and Mir Ahmed v. The State PLD 1962 SC 849 ref.

Azizullah K. Shaikh for Appellant.

Amer Raza Naqvi for the State.

Date of hearing: 2nd October, 2001.

2002 M L D 493

[Karachi].

Before Ghulam Rabbani and Muhammad Ashraf Laghari, JJ

HAQUE NAWAZ---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 1.202 of 2000, decided on 22nd November, 2001.

(a) Interpretation of statutes---

----Principle---In general, when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows clear intention to vary such rights.

Maxwell's Interpretation of Statutes, 10th Edn., p.221 ref.

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

----S.497(1), third proviso [as amended by Code of Criminal Procedure (Amendment) Ordinance. (LIV of 2001), S.2]---Penal Code (XLV of 1860), Ss.302/324/ 109/34---Bail on ground of statutory delay---Accused was in jail for the last more than two years and no delay was attributed to him in conclusion of the trial---Although third and fourth provisos to subsection (1) of S.497, Cr.P.C. had been deleted from the Statute Book by the Code of Criminal Procedure (Amendment) Ordinance (LIV of 2001), yet the bail application of accused was pending before the promulgation of the said Amending Ordinance and he having acquired a right under the aforesaid third proviso was entitled to bail---Accused according to the record was neither a previous convict nor a dangerous criminal---Principal co-­accused had already been released on bail on the statutory ground of delay and the accused, whose case was less serious, was entitled to bail on the principle of consistency as well---Accused was admitted to bail in circumstances.

Asif' Ali Zardari v. The State 1993 PCr.LJ 781; Hakim Ali Zardari v. The State PLD 1998 SC 1; Zahoor Elahi v. The State PLD 1977 SC 273; Maxwell on Interpretation of Statutes, 10th Edn., p.221 and Nazir Hussain's case PLD 1983 SC 72 ref.

Nooruddin Sarki for Applicant.

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

Nemo for the Complainant.

Date of hearing: 23rd October, 2001.

2002 M L D 504

[Karachi]

Before Wahid Bux Brohi, J

NABI SHER and 4 others‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.463 of 2001, decided on15th November, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.304/34‑‑‑Bail, grant of‑‑­High Court earlier had specifically directed the Trial Court to examine, at least .two material witnesses within two months, but the Trial Court failed to do that and also could not furnish plausible reasons to justify the delay in examining the witnesses according to directions of the High Court‑‑‑No rational explanation was provided by the Trial Court to justify the non‑compliance of the directions‑‑­No injury had been attributed to the accused and excepting the abusive language used by them, no overt act was alleged to demonstrate any resistance on their part or to instigate the others, to inflict injuries‑‑‑Guilt of the accused as regarded allegation of attempt to commit Qatl‑i‑Amd calling for further inquiry, they were ordered to be released on bail.

Muhammad Aslam v. State 1999 SCMR 2147 and Jadeed Gul v. State 1998 SCMR 1124 ref.

Ali Muhammad Dahri for Applicant.

M. Azeem Panhwar for the State.

Date of hearing: 15th September, 2001.

2002 M L D 510

[Karachi]

Before Wahid Bux Brohi, J

SOOMAR‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Miscellaneous Application No. 1018 of 2001 in Criminal Appeal No.79 of 2001, decided on 15th November, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S. 426‑‑‑Penal Code (XLV of 1860), S.335‑‑‑Suspension of sentence‑‑‑Question whether evidence given by the injured witnesses against the accused was reliable or not was yet to be determined at the conclusion of appeal‑‑‑Sufficient number of appeals being pending, there was possibility that hearing of appeal of the accused could take a long time‑‑‑Sentence of accused was suspended and he was released on furnishing security against the Arsh

Muhammad Khan Shahid v. The State PLD 1997 SC 1 ref.

Anwar A. Khan for Petitioner.

Mukhtar Ahmed Khanzada for the State.

Date of hearing: 15th November, 2001.

2002 M L D 515

[Karachi]

Before Muhammad Moosa K. Leghari, J

MUHAMMAD YASEEN alias SHAHU‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.S2 of 2000, decided on 18th September, 2001.

(a) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S.302‑‑‑Criminal Procedure Code (V of 1898), S.340‑‑­Appreciation of evidence‑‑‑Accused who was not in a position to engage a counsel, the defence counsel was provided to him at the State expense‑‑‑Judgment passed by the Trial Court against the accused did not show as to whether the counsel provided to the accused was heard before passing of the judgment‑‑‑Case diary also revealed that on relevant date the arguments were addressed by the State counsel while counsel for the accused was not present‑‑­Effect‑‑‑Accused could not suffer on account of any lapse on the part of his counsel‑‑ ‑Accused having been condemned unheard by the Trial Court, conviction and sentences awarded to him were set aside and case was remanded to the Trial Court for hearing the arguments of defence counsel, as well as prosecution side and to re‑decide the case.

PLD 1962 Dacca 334 and Sikandar Ali Nadeem alias Sakko v. The State 1994 PCr.LJ 695 ref.

(b) Natural justice principles of‑‑‑

‑‑‑ Nobody should be condemned unheard and no order adverse to the interest of anyone should be passed, unless he had been given fair opportunity of hearing.

Shoaib Shibli for Appellant.

Anwar Ansari for the State.

Date of hearing: 18th September, 2001.

2002 M L D 533

[Karachi]

Before Syed Zawwar Hussain Jaffary, .I

FIDA HUSSAIN SHAH-‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.74 of 2001, heard on 9th October, 2001.

Surrender of Illicit Arms Act (XXI of 1991)‑‑‑

‑‑‑‑Ss.7(c) & 4‑‑‑Jurisdiction of Sessions Court to try the case challenged‑‑‑No Notification under S.4 of the Surrender of Illicit Arms Act, 1991, had been issued by the Competent Authority‑‑‑Trial of accused under S.7(c) of the said Act by the Sessions Court was therefore, without jurisdiction‑Conviction and sentence of accused were set aside in circumstances‑‑‑High Court, however, directed that the F.I.R. registered against the accused should be treated as registered under the provisions of the West Pakistan Arms Ordinance, 1965 and the case be sent to the Court of competent jurisdiction for his trial‑‑‑Appeal was allowed in the said terms.

Shaman v. State Criminal Bail Application No. 561 of 2001; .Sh. Muhammad Qaiser v. The State 1994 PCr.LJ 88; Hakeem Inayatullah v. State 1993 PCr. LJ 1010 and Hussain Ahmed v. The State 1992 MLD 1618 ref.

Sardar Akbar Ujjan for Appellant.

Nidamuddin Brohi on behalf of Addl.A.‑G. for the State.

Date of hearing: 9th October, 2001.

2002 M L D 544

[Karachi]

Syed Zawwar Hussain Jaffary; J

AZAM ALI ‑‑‑Appellant

versus

THE STATE‑-‑Respondent

Criminal Appeal No.73 and Criminal Miscellaneous Application No. 1728 of 2001, heard on 9th October, 2001.

Surrender of Illicit Arms Act (XXI of 1991)‑‑‑

‑‑‑‑Ss.7(c) & 4‑‑‑Trial of the case by Sessions Court‑‑‑Validity‑‑­Notification as required to be issued by the Competent Authority under S.4 of the Surrender of Illicit Arms Act, 1991, having not been issued, trial of the accused before the Sessions Court under S.7(c) of the said Act was without lawful authority‑‑‑Conviction and sentence of accused were consequently set aside ‑‑‑F.I.R. registered against the accused was directed to be treated as registered under the provisions of the West Pakistan Arms Ordinance, 1965 and he was directed to be tried by a Court of competent jurisdiction‑‑‑Appeal was disposed of accordingly.

Shaman v. State Criminal Bail Application No. S.561 of 2001; Sh. Muhammad Qaiser v. The State 1994 PCr.LJ 88; Hakeem Inayatullah v. State 1993 PCr.LJ 1010 and Hussain Ahmed v. The State

Akbar Ujjan for Appellant.

Nidamuddin Brohi on behalf of Addl.A.‑G. for the State

Date of hearing: 9th October, 2001.

2002 M L D 561

[Karachi]

Before Muhammad Moosa K. Leghari, J

SHEHZAD‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No.221`of 2000, decided on 8th October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.561‑A & 403‑‑‑Constitution of Pakistan (1973), Art. 13‑‑‑Penal Code (XLV of 1860), Ss. 302/34 & 324/34‑‑‑Quashing of proceedings‑‑­Accused was tried by the Anti‑Terrorism Court and was acquitted and his acquittal,‑ was not challenged either by the State or by the complainant although he was vigilant enough as he had challenged the order of remand passed in appeal before Supreme Court‑‑‑Complainant, thus, was never aggrieved of the acquittal of accused by the Trial Court‑‑

High Court also in appeal despite being conscious of the acquittal of accused deemed it fit to just only set aside the conviction of the appellants therein, but intentionally refrained from reversing the whole judgment‑‑‑Even otherwise it was not conducive to justice 'to send the accused for retrial in consequence of the judgment of Appellate Court in which he was 'neither a party before the Court nor he was heard before passing the judgment‑‑‑Although the judgment of High Court was challenged before the Supreme Court, yet it refused to grant leave‑‑­Retrial of accused before the Sessions Court was patently illegal being in derogation of the fundamental rights guaranteed under the Constitution and in flagrant violation of the Criminal Procedure Code and General Clauses Act and the same was tantamount to the abuse of the process of law‑‑‑Impugned proceedings pending against the accused in Sessions Court were quashed in circumstances.

Muhammad Ali v. The State 1970 SCMR 189; Noor Muhammad v. The State PLD 1977 SC 508; Haji Muhammad Arshad v. Muhammad Fayaz Ali and 9 others 1995 SCMR 241; Shereen Begum and others v. Namoon Iqbal and 3 others PLD 1993 SC 247 and State through Advocate‑General, Sindh v. Inam Rehman Alvi 1991 MLD 1818 ref.

Allah Bachayo Soomro for Applicant.

Anwar Ansari for A.‑G. for the State.

Syed Madad Ali Shah: Amicus curiae.

2002 M L D 570

[Karachi]

Before Ghulam Rabbani and Zia Perwez, JJ

Master HIKMAT ALI and another---Petitioners

versus

PRESIDING OFFICER/JUDGE SPECIAL COURT ATC HYDERABAD DIVISION, HYDERABAD and another---Respondents

Constitutional Petitions Nos.D-454, 455 and 457 of 2001, decided on 5th October, 2001.

Penal Code (XLV of 1860)---

----Ss.337-A(i)/353/435/436/144/147/148/149---Offences gainst Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)--­Anti-Terrorism Act (XXVII of 1997), S.6(d)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Transfer of case to Court of ordinary jurisdiction---Accused had allegedly in company of other persons set on fire Government vehicle and other property belonging to Government and others---Section 6(d) of the Anti-Terrorism Act, 1997 was in force on the date of the incident---Offence alleged to have been committed by the accused being a scheduled offence was triable only by the Anti-Terrorism Court---Special Court constituted under the Anti-Terrorism Act, 1997, therefore, had the jurisdiction to take cognizance of the offence falling within the definition of S.6(d) of the said Act---Constitutional petition was dismissed in circumstances.

Allah Bachayo Soomro for Petitioner (in C.P.No.D-454 of 2001).

Zahoor A. Balouch for Petitioner (in C.P.No.D-455 of 2001).

Ahmed Raza Siddiqui for Petitioner (in C.P.No.D-457 of 2001).

Hakim Ali Siddiqui, Federal Counsel.

Masood Noorani, Addl. A.-G:

Date of hearing: 26th September, 2001.

2002 M L D 596

[Karachi]

Before S.A. Rabbani and Muhammad Afzal Soomro, JJ

MUHAMMAD IQBAL‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.44 and Miscellaneous Applications Nos. 1658 and 1659 of 2001, decided on 10th October, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Criminal Procedure Code (V of 1898), S.345‑‑­Appreciation of evidence‑‑‑Application for compounding of offence‑‑­Charge against the accused was that he killed his wife by burning after sprinkling oil on her‑‑‑Conviction of the accused had been based, merely on the statement of the deceased recorded as dying declaration which later on was incorporated in the F. I. R. ‑‑‑Accused pleaded not guilty‑‑­Offence could be compounded by the legal heirs with the person who had committed the offence and not with one who was only accused of commission of offence‑‑‑Legal heirs of the deceased could only forgive a person who had killed the deceased‑‑‑No reason existed to disbelieve the statement in the form of dying declaration made by the deceased‑‑‑Case was not one where discretion to grant permission to compound the offence could be exercised.

Khawaja Naveed Ahmed for Appellant .

Habib Ahmed, A.A.‑G.

2002 M L D 603

[Karachi]

Before S.A. Rabbani and Muhammad Afzal Soomro, JJ

ASHER JAN‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Bail No. 1429 of 2001, decided on 29th October, 2001.

(a) National Accountability Bureau Ordinance (XVII of 1999)‑‑‑

‑‑‑‑Ss.5(g) & 9(b) [as amended by National Accountability. Bureau (Amendment) Ordinance (XXXV of 2001)]‑‑‑criminal Procedure Code (V of 1898), Ss'. 426, 491 & 561‑A‑‑‑Bail, grant of‑-‑Jurisdiction of High Court‑‑‑"Court" was defined as "Accountability Court" in S.5(g), National Accountability Bureau Ordinance, 1999‑‑‑Section 9(b) of the Ordinance, had totally ousted jurisdiction of the Trial Court to grant bail in Accountability cases‑‑‑Words "including the High Court" were inserted in S.9(b) of the Ordinance through Amendment Ordinance (IV of 2000) and simultaneously under the same Ordinance Ss.426 & 491, Cr.P.C., were also inserted‑‑‑Intention behind said insertions was to put a bar on the jurisdiction of the High Court to grant bail in such cases‑‑­Such bar had been removed through amendments made by National. Accountability Bureau (Amendment) Ordinance, 2001 and under the amendment the High Court could exercise its normal jurisdiction for grant of bail in Accountability cases‑‑‑Total ouster of jurisdiction, of the Trial Court in respect of bail had reflected the intention of the Legislature that in Accountability cases bail should not be granted normally on the criterion which is observed for the purpose of bail in cases tinder other laws, because otherwise grant of bail by the High Court viz. Appellate Court instead of the Trial Court, in the first instance, would be withost any wisdom‑‑‑Criterion of bail in accountability cases would be different from that laid down for the cases under other laws‑‑‑High Court bad powers to grant bail in suitable cases and such suitability could be judged on the grounds of hardship and prima facie high improbability of conviction of the accused on the basis of material collected by the prosecution against him‑‑‑Amending Ordinance, 2001 had omitted the words "including the High Court" from S.9(b) of the Ordinance, to remove the bar on the, jurisdiction of the High Court to grant bail in Accountability cases, but Ss.426, 441 & 561‑A, Cr.P.C., mentioned in S.9(b) of the Ordinance, had not been omitted‑‑‑Section 9(b) of the Ordinance only had prohibited the Accountability Courts from granting bail‑‑‑Reference to 5.426, 491 & 561‑A, Cr.P.C. in S.9(b) was absolutely unnecessary because said sections related to powers of High Court and not that of the Accountability Courts‑‑‑Mention‑of Ss.426, 491 & 561‑A, Cr.P.C. in S.9(b) of the Ordinance was thus redundant.

(b) National Accountability Bureau Ordinance (VIII of 1999)‑‑‑

‑‑‑‑S.9(b) [as amended by National Accountability (Amendment) Ordinance (XXXV of 2001)]‑‑‑Bail, grant of‑‑‑Case of the accused was not one of hardship as he had surrendered before the Trial Court when his pre‑arrest bail was declined‑‑‑Accused was Sales Manager of the company during the period when the alleged evaison of excise duty was made by import of wines from the said company by use of false import permits and those permits were in the name of the accused‑‑‑Relevant documents were recovered from the possession of the accused and he was involved in the transaction‑‑‑Evidence had vet to be examined and evaluated by the Trial Court thus, it would riot be appropriate to give a finding of high improbability of. involvement of the accused in the transaction and gains thereof‑‑‑Case was not fit for grant of bail in circumstances.

Muhammad Ashraf Kazi for Applicant.

Aamer Raza Naqvi for the National Accountability Bureau.

2002 M L D 610

[Karachi]

Before Wahid Bux Brohi, J

LAKHA DINO ‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.506 of 2001, decided on 15th November 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S. 302‑‑‑Bail, grant of‑‑‑Fatal injuries were not attributed to the accused‑‑‑ No allegation was levelled to the effect that the accused hurled his hatchet or demonstrated any other action to show his intention to cause an injury to the deceased‑‑‑Motive against the accused was yet to be determined at the trial‑‑‑Case against the accused called for further inquiry‑‑‑Accused was granted bail in circumstances.

mMuh ad Sadiq and another v. The State 1996 SCMR 1654; Mumtaz Hussain and 5 others v. The State 1996 SCMR 1125 and Ghulam Nabi v. The State PLD 1996 SC 1023 ref.

Aijaz Shaikh for Applicant.

Mttkhtar Ahmed Khanzada for the State.

2002 M L D 639

[Karachi]

Before Muhammad Roshan Essani and S.A. Rabbanl, JJ

Mrs. ROSHAN and others‑‑‑Applicants

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1137 of 2001, decided on 29th September, 2001.

National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑S.9(b) [as amended by National Accountability Bureau (Amendment) Ordinance (XXXV of 2001)]‑‑‑Pre‑arrest bail, confirmation of‑‑­Jurisdiction of High Court‑‑‑Scope‑‑‑National Accountability. Bureau had filed reference before Accountability Court against the accused persons four their, failure to abide by the commitment and for not paying back outstanding dues, constituting the offence of wilful default‑‑‑Interim pre­arrest bail granted to the accused was confirmed by the Court‑‑­Accountability Bureau which had filed a reference, in view of the fact that the accused were women, conceded to the grant of bail to them, but had pointed out that under S.9(b) of National Accountability Ordinance, 1999 no Court had powers to grant bail in case and "no Court" included the High Court‑‑‑Words "including the High Court" had been omitted from S.9(b) of the Ordinance by National Accountability Bureau (Amendment) Ordinance, 2001‑‑‑Intention of the Legislature in omitting the words was to give jurisdiction 'to the High Court‑‑‑High Court, in circumstances, could exercise jurisdiction in granting and confirming the pre‑arrest bail to the accused.

Khan Asfand Yar Wali v. Federation of Pakistan PLD 2001 SC 607 ref.

2002 M L D 670

[Karachi]

Before Muhammad Roshan Essani, ALLAN and another‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑799 of 2001, decided on 27th November, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss.324/353/149‑‑‑Pre‑arrest bail, confirmation of‑‑‑Material placed on record as well as police record had shown that there was encounter between the police party and the accused which allegedly continued for about 10 minutes and more than 100 rounds were used by the police in the encounter‑‑‑Not a single scratch was caused to the either party and there was no Mashirnama of Wardat from which it could be deduced that any empties were found at the Wardat‑‑‑Case being of further inquiry, pre‑arrest bail granted to the accused was confirmed in circumstances.

Muhammad Saleem G.N. Jessar for Applicants.

Ali Aahar Tunio. Asstt. A.‑G. for the State.

2002 M L D 681

[Karachi]

Before Zahid Kurban Alvi, J

SABHAGO JAGIRANI and 4 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑670 of 2001, decided on 29th October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/147/148/149‑‑‑Bail, grant of‑‑‑Three persons had died in one encounter ‑‑‑F.I.R. named all the accused and had shown their respective roles at the time of Wardat‑‑­F.I.R. had mentioned that one person had fired and killed and the role of the other accused had been passive and they could be held liable or guilty of the alleged crime on the basis of common intention and vicarious liability and for that evidence was necessary‑‑‑Accused were directed to be implicated as co‑accused after one month of the occurrence‑‑‑Bail was granted to the accused with direction to the Trial Court to at least record evidence of the two eye‑witnesses within three months.

Faraz Akram v. The St$te 1991 SCMR 1360; Maqsood Javed v. The, State2001 PCr. L J 2065.; Akhtar Zaman v. The State 2001 YLR 2076; Hazoor Bux v., The State X001 YLR 2089; Gaffoor Ahmed v. The State 2001 YLR 2362; Muhammad Khalid v. The State 1987 PLY 1301; Mir Muhammad v. The State 1993 PLJ 88 and Ashiq Ali Lashari v. The State 2000 MLD 1193 ref.

Muhammad Ayaz Soomro for Applicants.

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

Rajab Ali Tunio for the Complainant.

2002 M L D 695

[Karachi]

Before Ghulam Nabi Soomro and Muhammad Mujeebullah Siddiqui, JJ

.Brig. (Retd.) ASLAM HAYAT QURESHI‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.. 1384 of 2001, decided on 21st October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), S.18‑‑‑Bail, grant of‑‑‑Accused was in continuous custody since last more than one year‑‑‑No delay was shown to have been caused by or on behalf of the accused in the conclusion of the trial‑‑‑Maximum sentence prescribed under the law for the offence was 14 years' R.I. only‑.‑Bail was granted to the accused in circumstances.

Asif Ali Zardari v. The‑State 1993 PCr.LJ 781 ref.

M. Ilyas Khan for Applicant.

Syed Tariq Ali for the State.

Date of hearing: 21.st October, 2001.

2002 M L D 703

[Karachi]

Before S.A. Rabbani and M. Ashraf Leghari, JJ

BAIG MUHAMMAD ‑‑‑Petitioner

versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU and others‑‑‑Respondents

Constitutional Petition No. 1283 of 2001, heard on 18th July, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), S.18‑‑‑Bail, grant of‑‑‑Substantial evidence needed to prove criminal liability of the accused in the case‑‑‑Investigation was already over and the accused was no more required by National Accountability Bureau for investigation‑‑‑Accused had been remanded to judicial custody‑‑­Authorities had 90 days to complete the process and same time was still available to submit reference‑‑‑Object of incarceration of an accused before conviction was not and could not be a punishment for the offence since the offence was yet to be proved at the trial‑‑‑Incarceration of the accused at bail stage would be against norms of justice and case against the accused being of further inquiry, he was admitted to bail.

Anwar Saifullah Khan's case PLD 2000 Lah. 564 ref.

Abdul Hafeez Pirzada assisted by Hassan Aurangzeb, Rana ikramullah, Syed Nasir Abbas Rizvi and Hussain‑ud‑Din for Petitioner.

Muhammad Anwar Tarique, Deputy P.G.A. NAB assisted by Dilawar Hussain and Amir Raza Naqvi for Respondents.

Date of hearing: 18th July, 2001

2002 M L D 715

[Karachi]

Before Zahid Kurban Alvi and Sarmad Jalal Osmani, JJ

QAIM KHAN and 4 others‑‑‑Applicants

versus

STATE‑‑‑Respondent

Criminal Bail Applications Nos. D‑506, 672, 686, 696 acid 723 of 2001, heard on 25th October, 2001.

Criminal Procedure Code (V of 1898)---

-‑‑Ss. 426(1‑Ai, 497(1), third & fourth provisos [as omitted by Code of Criminal Procedure (Amendment) Ordinance (LIV of 2001), Ss.2 & 3]‑‑­Bail‑‑‑Code of Criminal Procedure (Amendment) Ordinance, 2001) is prospective in nature‑‑‑Subsection (1‑A) of S.426, Cr.P.C. and third & fourth provisos of S.497(1), Cr.P.C. have been omitted by Ss. 2 & 3 of the Code of Criminal Procedure (Amendment) Ordinance, 2001‑‑­Amending Ordinance is to be applicable prospectively and shall not affect those cases where applications under 5.497, Cr.P.C. or 426, Cr.P.C. have been filed and were pending disposal at the time when the said Ordinance was promulgated‑‑‑By virtue of the principle of vested right and legitimate expectancy Amending Ordinance would also not affect all those 'who at the time of the promulgation of the Notification were behind bars and their cases had not proceeded due to no fault on their part‑‑‑Even they would be entitled to the concession of bail which was available under Ss.497 & 426, Cr.P.C, before the promulgation of the said Ordinance.

Asif Ali. Zardari v The State 1993 PCr. LJ 781 ref.

Abdul Razzak Soomro for Applicants.

Asif Ali Soomro holding brief for Saeed Ahmad Bijarani for Applicant (in Cr. B.A. No.672 of 2001).

Muhammad Ayaz Soomro for Applicants (in Cr.B.As. Nos.723 and 686 of 2001).

Ali Azhar Tunio, Assistant. A.‑G.

2002 M L D 726

[Karachi]

Before Muhammad Moosa K. Leghari, J

MUHAMMAD ALI and another---Applicants

versus

MUHAMMAD ASLAM and another---Respondents

Criminal Miscellaneous Application No. 51 of 1996, decided on 23rd August, 2001.

. (a) Criminal Procedure Code (V of 1898)---

----Ss. 200, 202 & 561-A---Penal Code (XLV of 1860), Ss.500 & 501--­Complaint case---Appreciation of evidence---Quashing of proceedings, application for---Complainant did not mention a single word either in the complaint or in his statement as to what story was published in the newspaper by the accused/applicants which had defamed him and caused imputation to his reputation as alleged by him---Complainant had not produced the said newspaper either alongwith the complaint or with his statement recorded under S.200, Cr.P.C.---Prosecution witnesses, who simply stated that news published in the newspaper was defamatory and that reputation of the complainant was impaired on account of said publication, had failed to reveal as to what were the contents of the news which were alleged to have harmed the reputation of the complainant---In absence o: any material alleged to have caused imputation of the complainant or to constitute the offence of defamation, no case was made out against the applicants/ accused and if the case was allowed to proceed it would be mock trial---High Court accepting application of the accused, quashed the proceedings against them.

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

----Chap. XVI [Ss.200 to 203]---Complaint cases---Scope of Chap.XVI, Cr.P.C.---Chapter XVI, Cr.P.C. dealing with complaint cases was to make distinction between baseless and substantial cases from the very beginning with the object of ensuring that no person would be compelled to answer any criminal charge unless the Curt Was satisfied that a prima facie case existed for issuance of process against him---Magistrate, while dealing with the private complaint should exercise due care and caution and should refrain from automatically issuing summons against the accused without carefully scrutinizing the, complainant as to whether on the facts stated in the complaint any criminal offence was made out--­Magistrates before issuing process to. the accused in private complaints were under statutory obligation as contemplated by S.202, Cr.P.C. to satisfy themselves for the purpose of ascertaining the truth or falsehood of the complaint. so as to protect the public against false, frivolous or vexatious complaint brought against them in Criminal Courts.

(c) Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 249-A---Quashing of proceedings---Powers of the High Court under S.561-A, Cr.P.C.---Scope---High Court possessed inherent powers under 5.561-A, Cr.P.C., but said provisions were not meant for the purpose of thwarting the criminal proceedings pending in the lower Courts and the High Court, ordinarily, would not interfere at intermediate stage of criminal proceedings in a subordinate Court---In certain cases wherein apparently a miscarriage of justice had occurred and there was no probability of any kind of conviction and that apparently the continuation of the proceedings amounted to abuse of process of law, the High Court; in order to prevent the abuse of process of Court, must interfere and if the prosecution, on the face of it, was illegal, the proceedings in such cases could be rightly quashed without: having recourse to the provisions of S.249-A, Cr.P.C. even though those could be at the initial stage.

S. Madad Ali Shah for Applicants.

Nemo for Respondent No. 1

Muhammad Azeem Panhwar for the State.

Date of hearing: 23rd August, 2001.

2002 M L D 746

[Karachi]

Before Sarmad Jalal Osmany, J

BASHIR AHMED ---Appellant

versus

THE STATE---Respondent

Criminal Bail Application No. 159 of 2001, de ided on 28th May, 2001.

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

----Ss. 561-A & 497---Sindh Inquiry an Anti-Corruption Act (IV of 1991), Preamble, Ss.3, 9) & 11---conversion of application under S.497, Cr.P.C. into the one under S.561-A, Cr.P.C. Quashing , of F.I.R.---F.I.R. containing allegations of corruption and misconduct was directly lodged with the police station by a police officer against the accused who was a civil servant despite an anti-corruption police station was available in the locality---In terms of S.3 of Sindh Enquiry and Anti-Corruption Act, 1991 only the Anti-­Corruption Department had jurisdiction to enquire into allegation of corruption against a civil servant---Preamble of the Act had also provided for the constitution of a special agency for investigation of offences relating to corruption by or inquiry into misconduct of public servant---F.I.R. lodged by Police Authorities against the accused who was a public servant, suffered from a basic legal defect and it was totally without jurisdiction while competent Anti-Corruption Police Station was available in the locality---Court converted application of bail into an application under S.561-A, Cr.P.C. and quashed the F.I.R. with direction to Police Authorities to adopt the proper procedure as provided under Sindh Inquiry and Anti-Corruption Act, 1991.

Mahboob Ali v. State and 3 others PLD 1996 Lah. 454; Raja Ahmad Tahir v. State and others PLJ 1996 Cr.C. (Lah.) 80; Muhammad Sharif v. S.H.O., Police Station City, Hafizabad PLD 1997 Lah. 692; Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122; Mian Munir Ahmed v. The State .1985 SCMR 257 and State through Advocate­General, N.-W.F.P., Peshawar and others v. Gulzar Muhammad and others 1998 SCMR 873 ref.

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

----S.561-A---Quashing of F.I.R.---Jurisdiction of High Court---When a complaint, investigation report or other steps either in lodging an F.I.R­ or prosecution of criminal case, were patently against the provisions of law or otherwise, no case could possibly be made out, then High Court had been clothed with the jurisdiction to quash the same as no useful purpose would be served to keep the matter lingering on.

Moula Bux Khoso for Applicant.

Behram Khan Ujjan, A.A.-G. for the State.

2002 M L D 762

[Karachi]

Before Shabbir Ahmed and Muhammad Mujeebullah Siddiqui, JJ

Haji MUAMMAD KIAMIL and another‑‑‑Petitioners

versus

GOVERNMENT OF SINDH through Secretary, Local Department,' Government of Sindh and another ‑‑‑Respondent

Constitutional Petition No.D‑87 of 2001, decided on 8th March; 2001.

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

‑‑‑‑Art.l99‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Petition under Art. 199, Constitution of Pakiitan (1973) was not a substitution of an appeal or revision‑‑‑High Court, in exercise of its Constitutional jurisdiction, could not substitute its own finding on facts‑‑‑Constitutional jurisdiction was not designed and intended to be used as substitute for a regular appeal or to be equated with a regular appeal‑‑‑High Court, in Constitutional petition, could not interfere with a finding of fact merely on the ground that the reasons which found favour with the Authority whose order was under scrutiny, were not such which would have been accepted by the High Court‑‑‑Constitutional jurisdiction could be invoked to rectify the jurisdictional defects and it was to be pressed into service against an order which was without jurisdiction or tainted with malice or was violative of a provision of law and not to correct a finding of fact‑‑­-High Court, even in Constitutional jurisdiction could interfere with a finding of fact, if it was founded onno evidence or was contrary to the evidence.

Export Promotion Bureau and others v. Qaiser Saifullah 1994 SCMR 859; Engineering Works Limited v. Abdul Ghaffar and 2 others 1993 SCM\t 511 and Muhammad Hayat Lak v. Punjab Local Councils Election Authority and others NLR 1992 Civil 474 ref.

(b) Sindh Local Government Elections Ordinance (X of 2000)‑‑‑

‑‑‑Ss.2, 3 & 4‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Delimitation‑‑‑Bifurcation of Town Committee‑‑‑High Court, in exercise of its Constitutional jurisdiction, could not substitute its own findings of fact and could not interfere with in respect of delimitation matters unless it was found That order with regard to delimitation was violative of the provisions of law‑‑‑Order bifurcating the Town Committee concerned into two Union Councils passed by Authorities was violative of the provisions of Ss.3 & 4 of. Sindh Local Government Elections Ordinance, 2000‑‑‑Notifications with regard to bifurcating of Town Committee and delimitation were struck down by the High Court and the Authorities were restrained from acting upon said notifications and holding any election in pursuance thereof‑‑­Authorities also were directed to reinitiate the delimitation proceedings in respect of town concerned

(c) Sindh Local Government Elections Ordinance (X of 2000)‑‑­-

‑‑‑‑Ss.2, 3 & 4‑‑‑Delimitation‑‑‑Bifurcation of Town Committee‑‑‑When the Legislature had provided for constitution of a town government for town, the Authorities had no power to constitute a anion government for a town and thereby deprive the population of Town Committee concerned from the benefits of a town government and lower down the status of town government to a union government.

(d) Sindh Local Government Elections Ordinance (X of 2000)‑‑­-

--‑Preamble‑‑‑Interpretation‑‑‑Drafting of statute‑‑‑Drafting of Sind Local Government Elections Ordinance, was very poor and confused‑‑­-Was imperative that the law should be drafted in such a manner that all the purposes of enacting a particular law and enforcing a particular scheme intended by the Legislature were achieved without any confusion and ambiguity‑‑‑Law should be drafted in plain, clear unambiguous and easily comprehensible language‑‑‑Law should be consistent and the terms used should conform to the definition clause.

(e) Legislation‑‑­-

‑‑‑‑Principles‑‑‑Was imperative that the law should be drafted in such a manner that all the purposes of enacting a particular law and enforcing a particular scheme intended by the Legislature were achieved without any confusion and ambiguity‑‑‑Law should be drafted in plain, clear unambiguous and easily comprehensible language‑‑‑Law should be consistent and the 'terms used should conform to the definition clause.

Jhamat Jethanand for Petitioners.

Masood A Noorani, Addi. A.‑G. for Respondents.

Naimatullah Soomro for the Intervenor.

Date of hearing: 8th March, 2001.

2002 M L D 783

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

KHAMISO‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No., 240 of 2001, decided on 21st January 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail, grant of‑­Complainant had lodged F.I.R. and had filed two complaints, but had given, different versions in the F.I.R. and complaints ‑‑‑Prosecution was unable to reconcile alleged confession of accused with medical report‑‑‑Case against accused being that of further inquiry, he was admitted to bail.

Khadim Hussain Solangi for Applicant.

Masood Ali, Addl. A.‑G.

2002 M L D 789

[Karachi]

Before Ghulam Nabi Soomro and Ata‑ur‑Rehman, JJ

MUHAMMAD SHARIF‑‑‑Applicant

versus

THE STATE through Deputy Director, FIA (C.B.C.), Karachi ‑‑‑Respondent

Bail Application No. 1555 of 2001, decided on 27th November, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860); Ss.420, 467, 471 & 511‑‑­ Bail, grant of ‑‑‑Co‑accused presented false Bank Dr‑aft for encashment which he failed to get upon verification from the issuing ‑Bank‑‑‑No paper/form or any document was shown to have been signed by the accused and. his name did not appear in the F.I.R.‑‑­ Was yet to be seen as to whether accused had prepared false documents and that he knew that documents which he had delivered were fogged‑‑‑Accused had no business to be in league with the co­ accused‑‑‑Scope was of further inquiry into the guilt of accused and no reasons appeared to believe that accused was guilty of offence with which he had been charged‑‑‑Bail was granted to accused, in circumstances.

Sohail Muzaffar for Applicant.

Khursheed A. Hashmi, Dy. A.‑G.

2002 M L D 800

[Karachi]

Before Muhammad Ashraf Leghari, J

GUL MUHAMMAD‑‑‑Applicant

versus

MUHAMMAD SADDIQUI and others‑‑‑Respondents

Civil Revision No.27 of 1998 and Civil Miscellaneous Application No.92 of 2001, decided on 29th November, 2001.

Court Fees Act (VII of 1870)‑‑‑

‑‑‑‑S.7(v) [as amended by Sindh Finance Act. (XIII of 1974)S.31‑‑‑Court­fee payable in, suit for possession of land, house and garden‑‑­Computation of‑‑‑Court‑fee in suit for possession of land, house and garden was to be computed on basis of value of subject‑matter and market value of land, house or garden would be deemed to be such value.

Illahi Bakhsh and others v. Mst. Bilqees Begum PLD 1985 SC 393 ref'.

Applicant in person

Date of hearing: 24th October, 2001.

2002 M L D 808

[Karachi]

Before Anwar Zaheer Jamali, J

ANJUMAN FALAH WA BEHBUD‑‑‑Plaintiff

versus

FEDERATION OF PAKISTAN and others‑‑Defendants

Suit No.614 of 2001,decided on 30th November, 2001.

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

‑‑‑‑Ss.3, 4 & 5‑‑‑Sindh Katchi Abadis Act (II of 1987), S.19‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2‑‑‑Specific Relief Act (I of 1877), Ss.42 & 54‑‑‑Suit for declaration and permanent injunction­‑‑Interim relief‑‑‑Application for‑~‑‑Members of plaintiff Association were unauthorised occupants of land owned by the defendant‑Authorities were served with show‑cause notice for their eviction‑‑‑Plaintiff‑Association filed suit against defendant‑Authorities contending that some land in disputed block had been notified as Katchi Abadi and area in occupation of its members would also be notified as Katchi Abadi as case was under process‑‑‑Authorities had clearly stated that area to dispute did not qualify for declaration as Katchi Abadi and also that they did not intend to issue any "No‑Objection Certificate" in that respect‑‑‑No notification declaring the area in question as Katchi Abadi had so far been issued under law‑‑‑Plaintiff‑Association, in circumstances, had failed to make out any prima facie case for grant of interim relief‑‑‑Balance of convenience did not lie in favour of plaintiff‑Association and occupant of disputed land who had no legal right to occupy same, would not suffer any irreparable loss and injury if action was taken for their eviction in accordance with law‑‑‑Application for grant of interim relief was dismissed in circumstances.

Khalil‑ur‑Rehman for Plaintiff.

Chowdhary Rasheed Ahmed for Defendants Nos.1, 2, 5, 6 and 7.

Muhammad Jamil for Defendant No.3.

Chowdhry Muhammad Iqbal, Asstt. A.‑G. for Defendant No.4.

Date of hearing: 30th November; 2001.

2002 M LD 815

[Karachi]

Before Muhammad Ashraf Leghari, J

NISAR AHMED ALAVI‑‑‑Applicant

versus

Dr. RUBINA AKHTAR‑‑‑Respondent

Revision Application No. 116 of 1999, decided on 20th November. 2001.

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

‑‑‑‑S.5 & Sched.‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for recovery of amount as value of Jahez/dowry‑‑‑Revision‑‑‑Scope‑‑‑Suit was decreed by two Courts below‑‑‑Defendant/petitioner neither urged any legal point before the High Court in revision nor pointed out any jurisdictional defect or non‑exercise and irregular exercise of jurisdiction by Courts below, but he wanted only to get reappraisal of evidence which had already been examined at length by two Courts below ‑‑‑Revisional jurisdiction could not be invoked against conclusions on factual aspects of the case based on concurrent finding of competent Courts having jurisdiction in the matter when petitioner had failed to show that said conclusions were illegal or perverse.

The Commissioner and another v. Mian Sher Muhammad 1972 SCMR 395; Jalal Din v. District Judge, Sialkot and 13 others 1983 CLC 1444; Maj. Rashid Beg v. Rehmat Ullah Khan and 4 others PLD 2001 SC 443; Sigallo Asia Limited and another v. Akbar Enterprises (Pvt.) Limited and 4 others 2001 CLC 660 and Mst. Aziz Khatoon and 7 others v. Ladharam and 6 others 2001 CLC 867 ref.

Zahid Marghoob for Applicant.

Mubarak Ahmed for Respondent.

Date of hearing: .11th October, 2001

2002 M L D 822

[Karachi]

Before Shabbir Ahmed, J

INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN‑‑‑Petitioner

versus

HYDERABAD BEVERAGE CO. (Pvt.) LIMITED‑‑‑Respondent

Judicial Miscellaneous No.45 of 2000 and Civil Miscellaneous Application No.2947 of 2001, decided on 3rd December, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXI, Rr.54 & 58---Industrial Development Bank of Pakistan Ordinance (XXXI of 1961), S.39(10)‑‑‑Object and compliance of O.XXI, R.54, C.P.C.‑‑‑Object of R.54, of O.XXI, C.P.C. was to give notice to judgment‑debtor not to deal with attached property and simultaneously to public not to accept any alienation of property by judgment‑debtor‑‑­Proclamation, in the present case, though was not made by beating of drum, but other requirements of R. 54, O.XXI, C.P.C. like service of attachment order on judgment‑debtor, posting of attachment proclamation on conspicuous part of property as well as on Court Notice Board were made‑‑‑Bailiff's Report spoke about affixation of attachment proclamation at property in question which was claimed by the objector/claimant‑‑‑Substantial compliance by O.XXI, R.54(2), C.P.C. by proclamation of attachment by its pasting on conspicuous part of property as well as Court Notice Board, had adequately been complied with and its object had been served‑‑ ‑Attachment could not be said to be invalid merely because proclamation was made by beating of drum when other requirements of O.XXI, R.54, C.P.C. were adequately met.

Gopal Chandra v. Ramesh Chandra and another PLD 1961 Dacca 492: State Life Insurance Corporation of Pakistan v. Dr. A.M.J. Shirazee and 9 others PLD 1983 Kar. 112; Mst. Habiba Kassim and another v. Messrs Habib Bank Limited 1987 CLC 1898; Ghulam Abbas v. Zohra Bibi and another PLD 1972 SC 337; Syed Ashad Ali Sadiq v. Pakistan International Airlines Corporation and another 1992 CLC 1323; Ganga Din and others v. Khushali ILR 7 All. 702; Gauri v. Ude and others AIR 1942 Lah. 153; A.T.K.P.L.M. Muthiah Chetti v. Palaniappa Chetti and others AIR 1928 PC 139; Gango Singh v. Jangi Lal AIR 1922 All. 413;, Shiv Lal v. Tani Ram AIR 1938 Bom. 441 and Kuwait Flour Mills x m.v. Kashmir 1990 MLD 2196 ref.

Salman Hamid for Petitioner.

A. Iqbal Qadri for the Claimant/Objector

Date of hearing: 23rd November, 2001.

2002 M L D 833

[Karachi]

Before S. Ali Aslam Jafri, J

GHULAM HUSSAIN alias GULLAN‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. l of 2002, decided February, 2002.

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

‑‑‑‑S.497‑‑‑Bail, grant of‑‑‑Principles‑‑‑Each case has its own merits anti has to be decided accordingly‑‑‑Deeper appreciation of evidence is not permissible at bail stage‑‑‑While considering plea of bail, Court has to tentatively evaluate evidence available on record keeping in view precedents of superior Courts.

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

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss. 302/504/34‑‑‑Bail, grant of‑‑‑Three accused persons were named in the F.I.R. and police had disbelieved complainant for involvement of accused and his name had been placed in Column No.2 of the challan‑‑‑Prosecution case was that accused was armed with double‑barrel gun, but it had not been used by him for causing any injury to the deceased or prosecution witnesses‑‑‑ Mere presence of a person at the time of incident in absence of overt act though being armed; was not sufficient to find him guilty of vicarious liability as it would leave room for further inquiry‑‑‑ Accused despite'' being armed having caused no injury to deceased or witness, his case stood covered under S.497(2), Cr.P.C. and he was entitled to grant of bail.

1995 SCMR 310; 1996 SCMR 1125; 1987 SCMR 1906; 1982 SCMR 955; 2002 MLD 52; 1988 SCMR 281; 1979 SCMR 65; 1998 SCMR 354; 1998 SCMR 496 and Muhammad v. The State 1998 SCMR 454 ref.

Faiz Muhammad Qureshi for Applicant.

Mukhtar Ahmed Khanzada for A.‑G. for the State.

Khadim Hussain Solangi for the Complainant.

2002 M L D 836

[Karachi]

Before Zia Perwez, J

COLLECTOR OF CUSTOMS (EXPORTS)‑ ‑‑Appellant

versus

Messrs CHEMITEX INDUSTRIES (PVT.) LTD.

and others‑‑‑Respondents

Revision Applications Nos. 58 to 77 of 2000, decided on 12th December, 2001.

Customs Act (IV of 1969)‑‑­

‑‑‑‑Ss. 21(c), 193, 194‑A, 195, 196, 196‑E & 217‑‑‑Civil Procedure Code (V of 1908), Ss. 9 & 115‑‑‑S.R.O. No.682(1)/93, dated 10‑8‑1993‑‑‑Suits challenging the validity of orders of Customs Authorities disallowing the plaintiffs' claim of duty drawback‑‑‑Plaintiffs filed suits after dismissal of their appeals and revisions filed against order‑in‑original before Collector of Customs (Appeals) and Member (Judicial), Central Board of Revenue respectively‑‑‑Suits were decreed by Trial Court, but appeals filed by defendants were dismissed by Appellate Court for non‑prosecution‑‑‑Defendants' contention was that Civil Court had no jurisdiction to entertain any matter falling within the scope of powers and functions of Appellate Authority under the provisions of Customs Act, 1969 and protected under S.217 thereof; and that after having adopted the course as provided under Customs Act, .1969, the plaintiffs could not deviate from such course, but could have pursued their claims before the hierarchy of forums provided under such law‑‑‑Validity‑‑‑Plaintiffs and defendants in such suits had opted to avail the forums provided under Customs Act, 1969, thus, suits instituted before Trial Court were without jurisdiction and not maintainable‑‑­Plaintiffs had referred the matter before Departmental Authorities and had pursued their remedy and concerned Authorities on their approaching them had already exercised their jurisdiction under the provisions of Customs Act, 1969‑‑‑Jurisdiction to hear further appeal was available under S.194 of the Customs Act with Customs Appellate Tribunal and in the High Court under S.196 and before Supreme Court tinder S. 196‑E of Customs Act, 1969‑‑‑Such facts constituted a case calling for setting aside the‑ impugned judgments under provisions of 5.115, C.P.C.‑‑‑High Court accepted revision applications, set aside the orders passed by Appellate Court and Trial Court while declaring the proceedings as void ab initio, without jurisdiction and of no legal effect.

Khan Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1971 SC 550; Messrs World Trade Corporation v. C.B.R. and others 1999 PTD 2341; Saleem Automotive Industries (Pvt.) Ltd. v. C.B.R. and others PTCL 2000 374; Messrs Chemitex Industries Ltd., Karachi v. Superintendent of. Sales Tax and 3 others 1999 PTD 1184; Lever Brothers Pakistan Limited through Company Secretary v. Federation of Pakistan through Secretary. Ministry of Finance, Islamabad 'and 3 others 1999 MLD 1925; Commissioner of Income‑tax, Companies‑II and another v. Hamdard Dawakhana (Waqf) Karachi PLD 1992 SC 847 Al Ahram Builders (Pvt.) Ltd. v. Income‑tax Appellate Tribunal 1993 SCMR 29, Income‑tax Officer and others v. Messrs Chappal Builders 1993 SCMR 118; Messrs Haji Rehmdil v. The Province of Balochistan and another 1999 SCMR 1060, Khalid Mehmood v. Collector of Customs, Custom House, Lahore 1999 SCMR 1881 and All Memon Welfare Cooperative Housing Society Limited v. Barkat Ali Issani and 2 others 1993 SCMR 1978 ref.

Raja Muhammad Iqbal for Applicant.

Mazhar Lari for Respondent.

Date of hearing: 24th May, 2001.

2002 M L D 861

[Karachi]

Before Anwar Mansoor Khan, J

ABDUL AZIZ‑‑‑Decree‑holder

versus

NATIONAL LOGISTIC CELL, MINISTRY OF

DEFENCE, GOVERNMENT OF PAKISTAN

through Commander, Karachi and 2 others‑‑‑Judgment‑Debtors

Execution. Application No., 164 of 2000, decided on 2nd May, 2001.

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

‑‑‑‑S. 47‑‑‑Executing Court‑‑‑Jurisdiction‑‑‑Re‑determining liabilities of ­parties‑ ‑‑‑Validity ‑‑‑Not open to the Executing Court to go behind a decree or re‑determine the liabilities of the parties.

Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Limited and 2 others 1994 SCMR 22 ref.

(b) Civil Procedure Code (V of 19(18)‑‑‑

‑‑‑‑S. 47‑‑‑Execution of decree‑‑‑Non‑filing of appeal against judgment and decree‑‑‑Effect‑‑‑Judgment‑debtor had neither filed any appeal nor any application for rectification or reviewing the judgment ‑‑‑Judgment-­debtor raised objection to the judgment and decree on the ground that since it was coram non judice, therefore, no appeal was to be filed and the Executing Court itself could ignore such order and it was upon the Executing Court to determine and refuse to execute such decree‑‑­Validity ‑‑‑Executing Court was only to execute existing decree and if any error was found on the face of it or otherwise if the order was void as passed without jurisdiction, appropriate remedies were available to the judgment‑debtors (defendants) to have the judgment modified‑‑‑Where neither application for rectification or reviewing the judgment was made, nor any appeal had been filed against the judgment and decree, the objection so raised was rejected‑‑‑Execution application was allowed accordingly.

Mst. Sakina and 3 others v. Messrs National Logistic Cell and 2 others 1995 MLD 633; Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 362; Rasheed Ahmad v. The State PLD 1972 SC 271; Dr. Aon Muhammad Khan v. Lt.‑Gen. (Retd.) Saeed Qadir and others PLD 1987 SC 490; Brigade Commander Headquarters Field Command, NLC, Karachi v. The State 1996 MLD 469; Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632; Sh. Liaqat Hussain and others v. Federation of Pakistan and others PLD 1999 SC 504; Muhammad Mushtaq v. Federation of Pakistan 1994 SCMR 2286; Federation of Pakistan and 2 others v. Khurshid Ahmed and another 1999 SCMR 664 and Gul Muhammad Mir Bahar v. National Logistic Cell and 2 others 1999 CLC 2032 ref.

Nasir Maqsood for the Decree‑holder.

Abdul Rauf for Judgment‑Debtors Nos. l and 2.

2002 M L D 891

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

Shaikh ABDUL LATIF ‑‑‑ Plaintiff

versus

P.I.B. COOPERATIVE HOUSING SOCIETY and 2 others‑‑‑Defendants

Suit No.422 of 2000, Civil Miscellaneous Nos. 43 of 2000 and 5834 of 2001, decided on 29th October, 2001.

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

‑‑‑‑S.80‑‑‑Service of notice‑‑‑Requirement‑‑‑Provisions relating to service of notice are mandatory and without complying with the same, a suit is not competent and at the same time Courts were not to insist upon compliance of the provisions of S.80, C.P.C. strictly‑‑‑Where Government or the officer concerned had sufficient notice of the facts and the relief which is to be sought in the proposed suit, the same constitutes sufficient compliance of S.80, C.P.C.

(b) Cooperative Societies Act (VII of 1925)‑‑‑

‑‑‑‑S. 70‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑‑Plaint, rejection of‑‑‑Failure to give mandatory notice‑‑‑Plea raised by the plaintiff was that since another suit for specific performance and injunction against the defendants was pending before the High Court and all the facts of the case had come to the knowledge of the defendants, there was no need of giving notice to Registrar, Cooperative Societies under S.70 of the Cooperative Societies Act, 1925‑‑‑Validity‑‑‑Where the plaintiff failed to give any such notice, the suit was not maintainable and the plaint was rejected.

Muhammad Ali Memorial Cooperative Housing Society Ltd. v. Syed Sibtey Hasan Kazmi PLD 1975 Kar. 428; Ziaur Rehman Alavi v. Messrs Allahabad Cooperative Housing Society Ltd. and 2 others PLD 1995 Kar. 399; Farida v. Prince Apartments Cooperative Housing Society and 2 others 1984 CLC 2914; Mrs. Naila Masood and 2 others v: Secretary, Food and Corporation, Government of Sindh and others 1998 CLC,1532 and J.J. Miranda v. Fishermen's Cooperative Society Ltd., Karachi and another PLD 1978 Kar. 990 ref., Amin Lakhani for Plaintiff

Muhammad ‑Ali Jan for Defendant No. 1.

Jamilur Rehman for Defendants Nos.2 and 3

2002 M L D 908

[Karachi]

Before Anwar Mansoor Khan, J

Syed ARIF ALI ‑‑‑Plaintiff

versus

Syed FIRDOUS ALI and others‑‑‑Defendants

Suit No.855 and Civil Miscellaneous Applications Nos. 4915, 5491, 5567, 6198 and 6199 of 2001, decided on 13th September, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.92 & O.VII, R.11‑‑‑Plaint, rejection of on the plea that suit being barred under S.92, C.P.C.‑‑‑Permission of Advocate‑General‑‑­Requirement ‑‑‑Plaintiff in the plaint sought to continue as administrative head of the educational institution being run by the trust‑‑‑Plea raised by the defendants was that the matter related to public charities, and no written consent of Advocate‑General was obtained by the plaintiff, hence the suit was barred under S.92 of C.P.C, and was liable to be rejected under ONII, R.11, C.P.C.‑‑‑Validity‑‑‑Permission of the Advocate-­General would be required to be taken only if the suit fell within the domain of S.92, C.P.C.‑‑‑Where the plaintiff was admittedly administrative head of the educational institution created by the trust and he wanted to continue as the head of the institution, the case did not relate directly to the management of the trust and was not covered by the provisions of S.92, C.P.C.‑‑‑Application under. O.VII, R.11, C.P.C. was dismissed in circumstances.

Fakir Shah and others v. Mehtab Shah Pir Bukhari Masjid Committee and others PLD 1989 SC 283; Kathiwara Cooperative Housing Society Ltd v. Macca Masjid Trust 2000 CLC 1182; Jamiat Dawat.Wa Tabligh Islam v. Muhammad Sharif AIR 1938 Lah. 869; Tirumalia Tirupati Davasthanams Committee v. Udiavar Krishnayya Shanbhaga Committee AIR 1943 Mad. 466; Kabul Singh .v. Ram Singh AIR 1986 All. 75; Khadim Hussain v. Ata Muhammad PLD 1967 Lah. 915 and Khialdas v. Mahraj Gopi Krishin PLD 1969 Kar. 646 ref.

Khalid Javed Khan for Plaintiff.

Abid S. Zuberi for Defendants.

2002 M L D 926

[Karachi]

Before Maulvi Anwarul‑Haq, J

KHURSHID MAHBOOB ALAM and others‑‑‑Petitioners

versus

GHULAM SARWAR and others‑‑‑Respondents

Civil Revision No.2285 of 1994, heard on.5th November, 2001.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.42‑‑‑Suit for declaration‑‑‑Claim of plaintiffs was that their predecessor‑in‑interest had sold away only 3 Kanals of land to defendant from his Khasra number whereas defendant had claimed that whole Khasra number consisting of 3 Kanals and 8 Marlas had been sold out to him‑‑‑Defendant could not bring on record any evidence in proof of his claim‑‑‑Trial Court decreed suit, but Appellate Court below set aside judgment and decree of Trial Court stating that weakness in the case of defendant could not be made basis for decreeing the suit‑‑‑Such proposition could not at all be utilized to deliberately weaken the case of successful party by exercising jurisdiction by a Court not vesting in it‑‑­Matter should have been decided on basis of evidence on record and not on conjectures and surmises, particularly when entire evidence on record led only to the conclusion that disputed 8 Marals of land was relatable to original ownership of plaintiff and no evidence was on record that same was sold away to defendant‑‑‑Judgment and decree of Appellate Court being not sustainable were set aside in revision by High Court.

Rana Abdur Rahim for Petitioners.

Nemo for Respondents.

Date of hearing: 5th November, 2001.

2002 M L D 934

[Karachi]

Before Muhammad Afzal Soomro, J

KAUSAR NAZ NAQVI‑‑‑Applicant

versus

ZAHID HUSSAIN‑‑‑Respondent

Revision Application No.25 and Civil Miscellaneous Application No. 259 of 2000, decided on 30th October, 2001.

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

‑‑‑‑O. V. Rr.9, 10‑A & 20‑‑‑Service on defendant‑‑‑Substituted service‑‑‑Mode‑‑‑Object and scope‑‑‑Defendant was served through bailiff and not by registered post or by way of publication ‑‑‑Validity‑‑­Where the defendant was proved to be served or acquainted with the knowledge that any proceedings against him had been initiated, there was no necessity of getting him served through all modes such as registered post A/D or publication‑‑‑‑Purpose of other modes of service upon the opponent was to procure attendance of defendant if he was not served through bailiff or appeared to avoid service.

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

‑‑‑‑OAX, R.7, O.XXXVII, R. ‑,‑‑‑‑Limitation Act (IX of 1908), S.5‑‑­Recovery suit‑‑‑Ex parte proceedings, setting aside of‑‑‑Failure to file application for leave to defend within 10 days‑‑‑Defendant was in the knowledge of the suit on 20‑10‑1999 from which date, limitation started and the defendant was required to file leave to defend application up to 30‑10‑1999‑‑‑Defendant failed to file application for leave to defend and instead filed application for recalling the ex parte order after a delay of 12 days‑‑‑No application for condonation of delay was filed‑‑‑Trial Court allowed the application and set aside the ex parte proceedings‑‑‑Validity‑‑‑Each and every day causing delay was to be explained which had not been done in the case‑‑­Order passed by the Trial Court was set aside and the case was remanded for decision on merits.

M.M. Aqil Awan for Applicant.

Date of hearing: 22nd October, 2001.

2002 M L D 952

[Karachi]

Before S.A. Rabbani, J

VIP HAIDER ESTATE through President and Chief Executive Officer‑‑‑Plaintiff

versus

PICIC COMMERCIAL BANK LIMITED and another‑‑‑Respondents

Suit No.90 and Civil Miscellaneous Application No. 502 of 2002, decided on 7th February, 2002.

Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S.40‑‑‑Civil Procedure Code (V of 1908), O.XXXIX. Rr.1 & 2‑‑­Interim injunction, grant of‑‑‑Right of third person‑‑‑Payment of commission‑‑‑Plaintiff being a broker and Commission Agent claimed to have located the suit property for the vendee ‑‑‑Non‑payment of commission to the plaintiff had created a charge on the suit property under S.40 of the Transfer of Property Act, 1882‑‑‑Validity‑‑‑Suit in question was for recovery of money which included claim of the plaintiff about commission and in case the suit was decreed, the plaintiff would be entitled to the recovery of the commission, claim whereof was included in the suit‑‑‑Plaintiff did not have prima facie case for interim injunction‑‑‑Application was dismissed in circumstances.

Farrukh Zia Shaikh for Plaintiff.

Miss Naheed A. Shahid for Defendant No. 1.

Rizwan Ahmed for Defendant No.2.

2002 M L D 985

[Karachi]

Before Faiz Muhammad Qureshi, J.

ABDUL AZIZ ---- Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.1111 of 2001, decided on 14th September, 2001.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.364/34---Pre-arrest bail, confirmation of---Name of .accused appeared in F.I.R., but with no specific role---Delay .of nine days with regard to registration of F.I.R., remained unexplained---No enmity existed between complainant and accused---Alleged kidnappee had not been recovered---Accused appeared to be an old man and mala fide could be spelt out even from contents of F.I.R. and false implication could not be ruled out tentatively--­Complicity of accused in alleged offence having yet to be established at time, of trial, interim bail order, was confirmed, in circumstances.

1985 SCMR 980; 1997 MLD 1335 and 1999 MLD 1203 ref.

S. Suleman Badshah for Applicant.

Fazal-ur-Rehman for A,G. for the State.

Faiz Khattak for the Complainant.

Date of hearing: 14th September, 2001.

2002 M L D 1007

[Karachi]

Before Sabihuddin Ahmad and Syed Ali Aslam Jafri, JJ

MUHAMMAD SHARIF and others‑‑‑Petitioners

versus

KARACHI METROPOLITAN CORPORATION and others‑‑‑Respondents

Constitutional Petition No.718 of 2001, decided on 20th September, 2001.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 8‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Claim of tenant to be accommodated in newly‑constructed building‑‑‑Landlord had assured the tenants that after reconstruction of the building in question they would be accommodated therein but after reconstruction of building landlord failed to honour his commitment‑‑‑Tenant/petitioner then agitated the matter in Constitutional petition before High Court‑‑‑Validity‑‑‑Proceedings before High Court were not appropriate for resolving purely factual controversy‑‑­Substantive relief could be granted by directing respondent‑landlord to put petitioners in possession only through properly instituted civil suit as respondent was not a statutory functionary‑‑‑Constitutional petition being incompetent was dismissed.

Muhammad Nawaz Abbasi for Petitioners.

Manzoor Ahmad for Respondent No. 1.

2002 M L D 1012

[Karachi]

Before Muhammad Moosa K. Leghari and Munir-ur‑Rehman, JJ

KHALID MASOOD‑‑‑Applicant

versus

THE STATE‑‑-Respondent

Criminal Bail Application No.921 of 2001, decided on 29th August, 2001.

Criminal Procedure Code (V of 1898)---

‑‑‑‑‑S.497‑‑‑Explosive Substances Act (VI of 1908), Ss. 3/4‑‑‑Bail, grant of‑‑‑Accused who was implicated by co‑accused was not nominated in F.I.R. and his address did not find mention in charge‑sheet‑‑­Abscondence of accused was not noticeable ‑‑‑Co‑accused had already been granted bail and case of accused was on better footing than that of co‑accused‑‑‑Confessional statement recorded by co‑accused would not be enough to connect accused with commission of crime‑‑‑Rule of consistency demanded that accused should also be granted bail‑‑‑State counsel had conceded grant of bail to the accused stating that offence against accused was bailable and punishment provided therefor was five years‑‑‑Accused was granted bail.

Mehmood A. Qureshi for Applicant.

Habib Ahmed, A.A.‑G. for the State.

2002 M L D 1017

[Karachi]

Before Faiz Muhammad Qureshi, J

MUHAMMAD RASHID and another---Appellants

versus

THE STATE---Respondent

Criminal Appeals Nos.91 and 45 of 1999, decided on 20th September, 2001

Penal Code (XLV of 1860)----

----Ss. 392/34 & 353---Appreciation of evidence---Complainant had categorically stated in the F.I.R. that on the day of incident on opening the door, he found a woman standing there alongwith two boys whose names were known later---Complainant had specifically named the accused' in F.I.R. with their parentage, but source of information with regard to the names of the accused was not stated 2t41 remained unexplained which showed that either the contents of F.I.R. had been written wrongly by the police or complainant had wrongly narrated to police officer the names of accused while recording FI.R. or he (complainant) never knew names of accused---Accused Were put to identification parade alongwith 20/25 other persons and the accused were picked up by complainant, but complainant nowhere bid stated in his deposition as to where identification parade was held and before which Magistrate or the Court---Prosecution had failed even to examine Magistrate on factum of identification before Trial Court---Sister of complainant despite being eye-witness was neither exam"-d nor was called for purpose of identification of accused ---Mashirnama of arrest d seizure of articles had been prepared in presence of corrolainant and another witness, but that other witness had not been etamined by prosecution without giving any explanation for his non-extmination--­Robbed articles allegedly recovered from accused, hay not been subjected to identification test in presence of MaBi~trate---Trial Court had not taken into consideration entire evidence-- prosecution itself had injected elements of doubts in the case---Bent,rt of doubt would go to accused not as a matter of grace, but at a matter of right in circumstances---Conviction and sentence wwarded to accused by Trial Court were set aside giving them benefit of doubt.

1995 SCMR'1345 ref.

Abdul Majeed and Mahmood Akhtar Qureshi for Appellants.

Habib-ur-Rasheed for A.-G. for the State.

Date of hearing: 20th September, 2001.

2002 M L D 1038

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

HAJI ILYAS and others---Applicants

versus

THE STATE and others---Respondents

Criminal Miscellaneous 96. 87 of 200 decided on 23rd April. 2001.

Criminal Procedure Code (V of 1898)---

----Ss.144, 195(a) & 561-A---Penal Code (XLV of 1860), S.188--­-Quashing of proceedings---Sub-Divisional Magistrate could take cognizance of offence on complaint by District Magistrate whose order under S.144, Cr.P.C. was alleged to have been violated making accused liable for punishment under 5.188, P.P.C.---Sub-Divisional Magistrate had taken cognizance of offence on police report and not on complaint by public servant concerned as required under S.195(a), Cr.P.C.--­ Mandatory provisions of law having been violated, proceedings before Sub-Divisional Magistrate were quashed.

1993 PCr.LJ 1307; 1993 PCr.LJ 1448; 1993 PCr.LJ 2306; PLD 1967 Pesh. 307 and 1998 PCr.LJ 584 ref.

Moula Bux Khoso for Applicants.

Jawad Akhtar for the State.

2002 M L D 1049

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

Mst. ZOHRA and others---Applicants

versus

NABI BUX and others---Respondents.

Revision Application No.247 of 1984, decided on 21st January, 2002.

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

----S.184(4)(b)(i) read with Ss. 161, 164 & 172---Colonization of Government Lands (Sindh) Act (V of 1912), Ss. 15 & 30---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), Ss. 9 & 115---Suit for declaration---Jurisdiction of Civil Court ---Predecessor­ in-interest of petitioners was granted suit-land in year 1960-61 by Barrage Authority and on payment of full price, he was issued T.O. Form---Respondent filed appeal in year 1969 before – Additional Commissioner, who cancelled such grant on 25-7-1969---Board of Revenue dismissed the revision petition---Predecessor-in-interest of petitioners then filed civil suit for declaration---Trial Court dismissed the suit due to lack of jurisdiction, which judgment was upheld by Appellate Court---Validity---Predecessor-in-interest of petitioners was granted suit land in year 1960-61 under the provisions of Sindh Land Revenue Code, 1879, .which was in force at that time ---Sindh Land Revenue Code, 1879 was repealed by 5.184 of West Pakistan Land Revenue Act, 1967--­-Predecessor-in-interest of petitioners had paid full price of suit-land before commencement of West Pakistan Land Revenue Act, 1967, thus, by virtue of S.184(4)(b)(i) thereof, he would be deemed to be the owner of suit-land and have acquired all the proprietary rights under Colonization of Government Lands (Sindh) Act, 1912, in pursuance of legislation by reference‑‑‑Both the Courts below had wrongly found that Civil Court had no jurisdiction in the matter and that order of cancellation of grant in favour of predecessor‑in‑interest of petitioners did not suffer from an illegality‑‑‑Both the Courts below had failed to exercise the jurisdiction vested in them‑‑‑Predecessor‑in‑interest of petitioner had acquired proprietary rights in suit‑land on payment of full price thereof and became owner thereof by virtue of deeming provisions contained in S.184(4)(b)(i) of West Pakistan Land Revenue Act, 1967, thus, the suit‑land had ceased to be subject to appeal and revision contained in West Pakistan Land Revenue Act, 1967‑‑‑High Court accepted revision petition, set aside impugned judgments and decrees of Courts below and decreed the suit in the terms that Additional Commissioner and Board of Revenue had no jurisdiction to entertain appeal and revision in respect of suit‑land, and their orders cancelling the grant in favour of predecessor‑in‑interest of petitioner were illegal and without jurisdiction and were set aside, and petitioners/plaintiffs were declared to be the owners of suit‑land.

PLD 1960 Kar. 908 ref.

Jhamat Jethanand for Applicants.

Aijaz Ali Hakro for Respondents.

Date of hearing: 11th January, 2002.

2002 M L D 1069

[Karachi]

Before Faiz Muhammad Qureshi, J

NASEEM HAYAT‑‑‑Applicant

versus.

Dr. GHULAM MUSTAFA and another‑‑‑Respondents

Criminal Miscellaneous Application No.443 of 1999, decided on 5th September, 2001.

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

‑‑‑‑S.561‑A‑‑‑Penal Code (XLV of 1860), Ss. 500/501‑‑‑Quashing of proceedings‑‑‑‑No offence under Ss. 500/501, P.P.C. having been made out on face of it, criminal proceedings pending against accused were held, abuse of process of law‑‑‑‑Proceedings initiated' on basis of direct complaint against accused stood quashed in circumstances.

Mahmood A. Qureshi for Applicant.

Sharafat All for A.A.‑G. for the State

Date of hearing: 5th September, 2001.

2002 M L D 1075

[Karachi]

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

ABDUL GHANI‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 105 of 2001, decided on 8th October, 2001.

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

‑‑‑‑S. 13‑E‑‑‑Criminal Procedure Code (V of 1898), S.103‑‑­Appreciation of evidence‑‑‑Place of recovery was an open place and it could not be said that it was a place exclusively in possession of the accused ‑‑‑Kalashnikove allegedly recovered has not been sealed at the spot‑‑‑No entry was on the record to show as to which police party left police station alongwirh accused to pointed place where recovery was said to have been effected‑‑‑No evidence was available with prosecution proving that crime weapon was sent to Ballistic Expert‑‑‑No independent Mashir as required under 5.103, Cr.P.C. had been associated while making recovery‑‑‑Crime weapon had not been shown to the accused during his statement under S.342, Cr.P.C.‑‑‑Defence evidence adduced by accused had not been taken .into consideration by Trial Court‑‑­Prosecution having failed to prove its case beyond reasonable doubt, conviction and sentence awarded to accused were set aside giving him benefit of doubt.

1996 PCr.LJ 1410; 1997 MLD 1632 and 1998 PCr.LJ 1368 ref.

Mahmood A. Qureshi for Appellant

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

Date of hearing: 4th October, 2001.

2002 M L D 1082

[Karachi]

Before Syed Ali Aslam Jafri, J

MUHAMMAD ARIF and another‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail. Application No.1225 of 2001, decided on 16th October, 2001.

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

‑‑‑‑S.497‑‑‑Bail ‑‑‑Deeper appreciation of evidence is not permissible at bail stage but only a tentative assessment is to be made.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 302/109/34‑‑‑Bail, grant of‑‑‑F. I. R. was lodged by a person who was not present at the time of incident, but two eye‑witnesses who had taken the deceased to hospital soon after incident appeared to be qatural witnesses‑‑‑Said witnesses in their statements under S.161, Cr.P.C. had clearly stated that they had seen the incident and described Hulia/Features of the assailants‑‑­Accused, subsequently were identified by the witnesses and motorcycle used in the commission of offence had been recovered from possession of accused who had led police party for purpose of production of motorcycle‑‑‑Nothing was on record to suggest any enmity between accused and witnesses who were independent and natural witnesses‑‑‑No reason appeared to believe that accused had falsely been implicated by witnesses‑‑‑No case for grant of bail of accused having been made out, bail application was rejected.

Ali Ahmad Junejo for Applicants.

Kazi Wali Muhammad for the State.

Mahmood A. Qureshi for the Complainant.

2002 M L D 1087

[Karachi]

Before Faiz Muhammad Qureshi, J

Mrs. BATOOL‑‑‑Applicant

versus

SHAHZAD‑‑‑Respondent

Revision Application No. 243 of 2000, decided on 21st August, 2001

Provincial Small Causes Courts Act (IX of 1887)‑‑-

‑‑‑‑S.25‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.84‑‑‑Suit for recovery of amount‑‑‑Plaintiff filed suit on basis of agreement of tenancy executed between parties ‑‑‑Defendant/denied execution of agreement and plaintiff sought examination of signatures of defendant on agreement by referring document to expert, but defendant having failed to appear to contest such application of the plaintiff, Trial Court proceeded with the case and dismissed the suit ‑‑‑Validity‑‑‑Trial Court which could have compared signatures of defendant by virtue of Art. 84 of Qanun‑e‑Shahadat, 1984 had failed to do that‑‑‑Judgment passed by trial Court was not based on sound reasoning, particularly when there was an admission on part of defendant‑‑ ‑Defendant had neither denied contents of paragraph of the plaint of plaintiff with regard to execution of agreement nor could rebut contentions raised by the plaintiff‑‑‑Trial Court having failed to consider all circumstances of case and having failed to write judgment in accordance with law and in view of evidence available on record, judgment of Trial Court/Small Causes Court was set aside.

S. Nisar Hussain Jafri for Applicant.

Anwar Ahmed for Respondent.

Date of hearing: 28th August, 2001.

2002 M L D 1094

[Karachi]

Before Faiz Muhammad Qureshi, J

WALI HAIDER ‑‑‑Petitioner

versus

Mst. PARVEEN and 2 others‑‑‑Respondents

Civil Petition No.S.‑504 of 2000, decided on 12th March, 2001.

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

‑‑‑‑S.5, Sched. & S.14‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Suit for dissolution of marriage and maintenance‑‑‑Both Family Court and Appellate Court concurrently decreed suits filed by plaintiff‑ ‑‑Conduct of defendant in both Family Court and Appellate Court remained indifferent as neither he appeared before Family Court on any date of hearing despite his service nor at the time when written statement was filed by him and same: was lying without verification on file of the Family Court‑‑‑Such conduct of defendant had shown that he was not interested in challenging judgment and decree of Trial/Family ‑Court. ‑‑Defendant had failed to point out any flaw or defect in concurrent judgments of both the Courts below and had remained indifferent throughout proceedings before Courts below and was neither alive to his responsibilities nor interested in his matters‑‑­Concurrent judgments of Courts below could not be interfered with by High Court in exercise of its Constitutional jurisdiction‑‑‑Constitutional petition was dismissed in circumstances.

Muhammad Ishaq Khoso for Petitioner.

Sher Muhammad Leghari for Respondents.

Date of hearing: 12th March, 2001.

2002 M L D 1123

[Karachi]

Before Ghulam Nabi Soomro and Wahid Bux Brohi, JJ

MUHAMMAD SALEEM‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1233 of 1999, decided on 25th November, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss..6/9(b)‑‑‑Bail, grant of‑‑‑Offence against accused was nor punishable with more than 7 years ‑‑‑Mashirs of alleged recovery of Charas were members of same raiding party ‑‑‑Factum of enquiry against Mashir/Police Officer, allegedly being instrumental in case against accused, was also a circumstances which would bring case against accused within compass of S.497(2), Cr.P.C.‑‑‑Bail was granted to accused, in circumstances.

PLD 1995 SC 34 ref.

Sardar Muhamamd Ishaque for Applicant

Habib Ahmed, A.A.‑G. for the State.

2002 M L D 1145

[Karachi]

Before Wahid Bax Brohi J

MUHAMMAD AHMED IQBAL BALOCH‑‑‑Applicant

versus

THE STATE‑--Respondent

Criminal Bail Application No. 540 of 2000, decided on 5th June, 2000

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S. 420‑‑‑Bail, grant of ‑‑‑Co­-accused on same set of facts and allegations had been granted bail by Trial Court‑‑‑Following rule of consistency, accused was also granted bail.

Fazal Khaliq v. The State 1996 SCMR 364 ref.

Muzaffar‑ul‑Haq for Applicant.

Suleman Habibullah for the State.

2002 M L D 1152

[Karachi]

Before Munir‑ur‑Rahman, J

MUHAMMAD AIJAZ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 112 of 1999, decided on 6th September, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 393/398‑‑‑Appreciation of evidence‑‑‑Material contradictions were found in depositions of witnesses inasmuch as none of them was consistent about alleged recovery of T.T. Pistol from possession of accused‑‑‑Delay of 8 hours in lodging F.I.R. had not been explained which was fatal to prosecution case and it could not be ruled out that F.I.R. was registered after deliberate consultation‑‑‑Evidence led by prosecution lacked corroboration from any independent source‑‑­Prosecution witnesses were not natural, witnesses and could not explain their presence at the spot at relevant time‑‑‑Statements of said witnesses could not be believed‑‑‑Conduct of complainant was shrouded in mystery as no other person from the vicinity was attracted at place of vardat who could say that he had witnessed incident‑‑‑Prosecution had suppressed truth and had come up with its own version which had created doubt‑‑‑Prosecution having failed to establish guilt of accused, his conviction and sentence were set aside giving him benefit of doubt.

PLD 1994 FSC 34; 1996 PCr.LJ 361 and 1991 PCr.LJ 503 ref.

Saathi M. Ishaque, for Appellant.

Kazi Wali Muhammad for the State.

Date of hearing: 2nd August, 2001.

2002 M L D 1162

[Karachi]

Before S. Ali Aslam Jafri, J

KHALID MAIRAJ BHATTI and others‑‑‑Petitioners

Versus

ADMINISTRATOR, KARACHI METROPOLITAN

CORPORATION and others‑‑‑Respondents

Civil Revision Application No.66 of 2001, decided on 22nd September, 2001.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 8, 42 & 54‑‑‑Suit for possession, declaration and permanent injunction‑‑‑Plaintiffs who had nowhere claimed to be in possession of suit plot, had failed to substantiate their claim and right over the plot‑‑­Courts below concurrently dismissed suit‑‑‑Concurrent findings of facts and law recorded by Courts below could not be interfered with by High Court in exercise of its revisional jurisdiction when nothing was on record to justify any interference.

Inayatullah and others v. Shah Muhammad and others PLD 1961 Lah. 372 and Habib Bank Limited v. Ghulam Haider and another PLD 1975 Lah. 489 ref.

Muhammad Ashraf Bhatti for Petitioners.

Manzoor Ahmad and Attaullah Khan for Respondents.

2002 M L D 1182

[Karachi]

Before Sabihuddin Ahmed and, Ghulam Rabbani, JJ

Miss RIZWANA ANDALEEB‑‑‑Petitioner

Versus

PRINCIPAL, CHANDKA MEDICAL COLLEGE, LARKANA and others‑‑‑Respondents

Constitutional Petition No. D‑166 of 1998, decided on 30th June, 1999

(a) Sindh Medical Colleges Admission Rules‑‑‑

‑‑‑‑Rr. 2(vi), 22 & 23‑‑‑Educational institution‑‑‑Admission. in Medical College‑‑‑Candidate who appeared in Intermediate Examination could not qualify for admission in Medical College due to less marks, attempted to improve her result by appearing once again in next year, but again could not succeed‑‑‑Candidate who attempted to repeat her Intermediate Science Examination for improvement, having failed, was not eligible to apply for admission‑‑‑Candidate who was not eligible to apply, through interpolation affected on her Intermediate Certificate managed to secure admission‑‑‑Effect‑‑‑Candidate who furnished or relied upon a fake or forged document, was to be debarred from getting admission in Medical College and subjected to prosecution‑‑‑Admission of candidate was rightly cancelled after due notice to her‑‑‑Contention of candidate that as she had reached fourth year of her study in medical college, cancellation of her admission at that stage would be inequitable was repelled because candidate could not claim any vested right created on basis of forged document.

Punjab Engineering College v. Dharminder Kumar Singhal 1990 AIEC 75 and Chairman, Joint Admission Committee, Kyber Medical College v. Raja Hussain 1991 SCMR 965 ref.

(b) Vested right‑‑‑

‑‑‑‑ Such right cannot be claimed to have been created on the basis of a forged document.

Gul Bihar Korai for Petitioner. Sarwar Khan, Addl. A.‑G. for Respondents.

2002 M L D 1247

[Karachi]

Before Sabihuddin Ahmed and

S. Ali Aslam Jafri, JJ

Messrs SHAHEEN PUBLIC EDUCATIONAL

SOCIETY (REGD.)‑‑‑Petitioner

Versus

KARACHI DEVELOPMENT AUTHORITY

and others‑‑‑Respondents

Civil Petition No.D‑1585 of 1999, decided on 12th April, 2001.

Karachi Development Authority Order (5 of 1957)‑‑‑

‑‑‑‑Arts. 52 & 52‑A‑‑‑Constitution of Pakistan (1973); Art.199‑‑‑Constitutional petition‑‑‑Allotment of amenity plot‑‑‑Cancellation of allotment‑‑‑Petitioner which was a registered Society engaged in running a school, was allotted an amenity plot, but allotment order was subsequently cancelled as the required area was not available‑‑‑Authority thereupon .allotted another larger plot to the petitioner Society and the Society after obtaining possession of the plot started raising construction thereon‑‑‑Petitioner thereafter moved the Authority contending that substituted plot was of lesser value and that petitioner should be a compensated‑‑‑Validity‑‑‑If petitioner felt that plot subsequently allotted to it did not suit its requirement, it could refuse to accept allotment and seek allotment of suitable plot; but petitioner took possession of plot, raised construction thereon and was running a school there‑‑-Petitioner at the same time had moved Ombudsman seeking allotment of additional plot by way of compensation and Ombudsman passed order requiring Authority to allot an additional plot‑‑‑Even after issuance of allotment order, petitioner never bothered to surrender plot allotted to it earlier and was protesting against reduction of size of later plot‑‑‑Petitioner appeared to be grabbing property under garb of providing public services, but equitable and discretionary jurisdiction of High Court under Art. 199 of Constitution of Pakistan (1973), could not be invoked for allowing petitioner to do so, as petitioner had already been treated far more generously than it deserved‑‑‑Possibility of collusion of some officials of Authority in the case could not altogether be ruled out‑‑‑High Court, under Art.199 of Constitution of Pakistan (1973), would exercise an equitable jurisdiction and no relief could be granted to a party for its unjust encroachment‑‑‑Amenity plots were to be allotted at substantially lower rates than their true market value for rendition of services for general benefit of people and not for encroaching allottees‑‑‑Authority could not allot part of amenity plot for residential purposes in defiance of law‑‑‑High Court dismissed Constitutional petition with special costs.

Dasti Muhammad Ibrahim for Petitioner.

Abdul Majeed Ashrafi for Respondents.

Date of hearing: 22nd March, 2001.

2002 M L D 1260

[Karachi]

Before Muhammad Afzal Soomro, J

BUXIAL SARYO‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑97 of 2002, decided on 1st March, 2002.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.324/337‑A(ii)/337‑F(ii)/ 337‑F(v)/504‑‑‑Bail‑‑‑Accused according to F.I.R., was armed with a hatchet and had caused hatchet injury to a prosecution witness which was certified by the Medical Officer as "Ghayr Jaifah Hashimah" punishable up to five years' R.I.‑‑‑Offence under S.324, P.P.C. was yet to be determined‑‑‑Case against accused as such did not fall within the prohibition contained in S.497(1), Cr.P.C.‑‑‑Bail was allowed to accused in circumstances.

Abdul Salam v. The State ;1980 SCMR 142; Ghulam Abbas v. The State 1996 SCMR 978; Abdul Sattar v. The State 1995 PCr.LJ 639; Allah Rakha alias Bodi and another v. The State and another 1993 SCMR 1994; Muhammad Afsar v. The State 1994 SCMR 2051 and Wajahat Ikram and another v. The State 1999 SCMR 1255 ref.

Azizul Haque Solangi for Applicant.

Asif Ali Abdul Razzak Soomro for the Complainant.

Muhammad Ismail Bhutto for the State.

2002 M L D 1266

[Karachi]

Before Muhammad Ashraf Leghari and

Muhammad Mujeebullah Siddiqui, JJ

Syed AMIR SAEED‑‑‑Petitioner

Versus

MUSHTAQ AHMED and 2 others‑‑‑Respondents

Constitutional Petition No .2281‑D of 2001, heard on 13th November, 2001:

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

-‑‑S.15(2)(vii)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Bona fide personal need of landlord ‑‑‑Ejectment application by landlord against tenant on ground of his personal bona fide use was dismissed by Rent Controller and appeal filed against said judgment was also dismissed by Appellate Court‑‑‑Validity‑‑‑Evidence produced on record was well‑discussed by Rent Controller as well as Appellate Court and their judgments were neither illegal nor perverse and no jurisdictional defect had been pointed out by petitioner in their judgments‑‑‑Order passed by Appellate Court was based on sound reasoning and was a speaking order‑‑‑Judgment of Rent Controller affirmed by Appellate Court could not be interfered with in Constitutional jurisdiction of High Court.

Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178; Jahangir Rustom. Karalia v. State Bank of Pakistan 1992 SCMR 1296; Aftab Ahmed Saeed v. Qamaruddin 1992 MLD 1601; Messrs Saleem Brothers v. Ferozuddin Ahmed 1992 ALD 168; Azizuddin v. Muhammad Ishaque 1992 ALD 181; Mrs. Chung Ying Hsiung v. Mst. Seema Saeed 1993 CLC 505; Juma Sher v. Sabz Ali 1997 SCMR 1062; Qaumi Foundation v. Asad Anees Ansari 1997 CLC 33; Mst. Zubeda v. Muhammad Nadir 1999 MLD 3011; Messers Oosman Brothers v. Muhammad Aslam and 3 others 1999 CLC 2012; S. Muhammad Saddiq & Co. v. Dawate Hadiya Akbar Ali Hassan Ali Trust Rawalpindi wala Building 1999 CLC 1102 and Muhammad Aziz v. Mst. Azmat Begum PLD 2000 Kar. 41 ref.

Syed Arif Ali Shah for petitioner.

2002 M L D 1270

[Karachi]

Before Zahid Kurban Alvi and Muhammad Mueebullah Siddiqui, JJ

MUHAMMAD SHAM‑‑‑Petitioner

Versus

PAKISTAN through Secretary, Ministry of Religious

and Minority Affairs, Islamabad and 3 others‑‑‑Respondents

Constitutional Petition No. 1807 of 1999, decided on 25th September, 2001.

Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)‑-‑

‑‑‑‑S. 6‑‑‑West Pakistan Urban Immovable Property Tax Act (V of 1958), Ss.2(e) & 4‑--Constitution of Pakistan (1973), Arts.165 & 199‑‑­Constitutional petition‑‑‑Levy of property tax‑‑‑Exemption‑‑‑Conditional lease in respect of property owned by Evacuee Trust Board was executed in favour of lessee for a period of thirty years‑‑‑Property vested in Evacuee Trust Board even if it was leased out for a period of thirty years, it would revert to Evacuee Trust Board‑‑‑Property would fall within ambit of "Federal Government Properties" which was exempt from payment of Property Tax under S.4 of Urban Immovable Property Tax Act, 1958‑‑‑Where owner/Evacuee Trust Board, did not have to pay taxes then question of lessee's paying same would not arise.

Pakistan v. Province of Punjab and others PLD 1975 SC 37; Abdul Hafeez alias Bacha Meha v. Ashraf Ali Choudhrv and others PLD 1967 Dacca 145; Dr. Amanullah Khan v, Province of N.W.F.P. through Secretary, Finance, Government of N.W.F.P., Peshawar and 2 others 1994 MLD 2329 and Mehran Associates Ltd. v. Commissioner of Income Tax, Karachi 1993 SCMR 274 = 1993 PTD 69 ref.

Obaidur Rehman for Petitioner.

M.G. Dastagir and Abbas Ali, A.A.‑G. for Respondents.

Date of hearing: 24th August, 2001.

2002 M L D 1282

[Karachi]

Before Muhammad Afzal Soomro, J

QAMAR‑UL‑ISLAM, ADVOCATE‑‑‑Applicant

Versus

S. M. GHARIB NAWAZ DACCAWALA, ADVOCATE‑ON­

RECORD SUPREME COURT OF PAKISTAN‑‑‑Respondent

Civil Revision No. 126 of 2001, decided on 14th January, 2002.

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

‑‑S.114 & O.XLVII, R.1‑‑Limitation Act (IX of 1908), S.14‑‑­Review Limitation‑‑‑Right to file review application though was a substantive right, but non‑availing the remedy available under law against basic order and instead prosecuting review in the same Court, would not entitle applicant to seek benefit under S.14 of Limitation Act, 1908.

Khan Muhammad Khan and others v. Mir Sardar Ali and others PLD 1961 (W.P.) BJ 42; Court of Wards, Hyderabad v. Mst. Shahzadi Begum PLD 1960 (W.P.) Kar. 70; Ghulam Bhik v. Mst. Hussain Begum .PLD 1957 (W.P.) Lah. 998; Nek Bibi v. Muhammad Tufail and others 1989 MLD 3990; Government of Sindh v . Khalil Ahmed 1994 SCMR 782; S. Zafar Ahmad v. Abdul Khaliq PLD 1964 (W.P.) Kar. 149; Mahraj Puttu Lal v. Sripal Singh and others AIR 1937 Oudh 191; Arif Yazdani and others v. Sheikh Abdus Salam and others PLD 1957 (W.P.) Lah. 983; Azad Government of the State of Jammu and Kashmir v. Abdul Rahim 1989 CLC 575; Sabir Hussain alias Tonchi v. The State PLD 1989 SC (AJ&K) 1; Pir Muhammad v. Education Town Cooperative Society Limited, Lahore 1082 SCMR 995; Muhammad Sharif v. Cantonment Board, Rawalpindi 1994 MLD 2442; Izzat Khan v, Mst. Insha Allah Begum and others PLD 2001 Kar. 396; Ghulam Hussain and another v. Kanwar Ashiq Ali Khan and another PLD 1980 SC 198; Ghulam Nabi and 5 others v. Rashid PLD 2000 SC 63; Muhammad Irfan Khan and 4 others v. Mst. Nasreen Anwar 2001 CLC 1256; Khan Muhammad and others v. Mst. Zainab Bibi 2000 SCMR 1227; Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286; Qamarul Islam v. Institute of Chartered Accountants of Pakistan 1999 MLD 1805; Muhammad Bux v. Muhammad Ali 1984 SCMR 504 and Trustees of the Port of Karachi v. Admajee Insurance Company and 2 others 1999 MLD 3352 ref.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑S.5‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Revision‑‑‑Delay, condonation of‑‑‑If an application/appeal was filed beyond prescribed period of limitation, each and every day causing such delay was to be explained satisfactorily to make out a plausible ground for condonation of delay‑‑‑Appeal or an application for revision could be admitted after period of limitation prescribed subject to satisfactory explanation for delay by applicant, but statutory pre‑condition as legislated was that provisions of S.5 of Limitation Act, 1908 would have its effect only when S.5 was made applicable to such proceedings‑‑ Section 5 of Limitation Act, 1908, having not been made applicable to revision under S.115, C.P.C., delay could not be condoned.

Applicant in person.

S. M. Gharib Nawaz Daccawala for Respondent, Date of hearing: 14th January, 2002.

2002 M L D 1293

[Karachi]

Before S. A. Rabbani and Moosa K. Leghari, JJ

BUDHO MALGHANI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. D‑60 of 2000, heard on 2nd January, 2001.

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

‑‑‑‑S.103‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.9(c)‑‑­Recovery‑‑‑Police officials as recovery witnesses‑‑‑Duty of Trial Court‑‑‑Where offence is based on recovery of something, the evidence of witnesses belonging to police or any other Investigating Agency should be examined very carefully although their evidence cannot be discarded merely for the reason of their official position.

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

‑‑S.9(c)‑‑Appreciation of evidence‑‑‑Police officials as recovery witnesses‑‑Contradiction in evidence of recovery witness‑‑‑Accused had criminal record and one of the cousin of, the accused had made complaint against the Station House Officer, therefore, the accused was ‑ not a stranger to the Station House Officer at the time when he was arrested‑‑­F.I.R. lodged and recorded by the Station House Officer was in the manner as if the accused was not known to him‑‑‑Effect‑‑‑Such facts and admissions might be a base for inference that the defence version was not baseless‑‑‑In the present case there were contradictions between the statements of both the prosecution witnesses regarding material facts such contradictions and facts suggested a probability that the case was prepared at Police Station‑‑‑Where prosecution evidence was too defective and inadequate for conviction, the accused was entitled to acquittal‑‑‑Conviction and sentence awarded by the Trial Court were set aside‑‑‑Accused was acquitted in circumstances.

Abdul Waheed Katpar for Appellant.

Nemo for the State.

Date of hearing: 2nd January, 2001.

2002 M L D 1298

[Karachi]

Before Muhammad Roshan Essani; J

GHULAM NABI and 2 others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.49 of 2002, decided on 4th February, 2002. .

Criminal Procedure Code (V of 1898)‑--

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.1d/16‑‑‑Penal Code (XLV of 1860), S.109‑‑‑Bail‑‑‑Four months' inordinate delay in lodging the F.I.R. was not plausibly explained ‑‑‑Abductee had filed a suit for dissolution of marriage against her husband which was pending in Family Court‑‑‑Assertions made in the F.I.R. had been belied by the abductee, rather she had levelled allegations against her father (complainant), mother and her husband‑‑‑According to the abductee she had left the house of her greedy parents of her own free‑will and shifted to another colony as her parents and her previous husband were harassing her by filing false cases‑‑‑Interim bail granted to accused was confirmed in circumstances.

Khadim Hussain Solangi for Applicants.

Allah Bachayo Lakho for the Alleged Victim.

Muhammad Azim Panhwar, State Counsel.

2002 M L D 1311

[Karachi]

Before Muhammad Roshan Essani and

Muhammad Mujeebullah Siddiqui, JJ

Syed SAMEER RAUF‑‑‑Petitioner

Versus

Accountability Bail Application No. 1780 of 2001, decided on 22nd March, 2002.

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

‑‑‑‑Ss.497/498‑‑‑Bail‑‑‑Assessment of evidence‑‑‑No indepth appreciation or appraisal of evidence is warranted at bail stage‑‑‑For the purpose of deciding a bail application only tentative assessment of the available material is to be made.

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

‑‑‑‑S.497‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), S.10‑‑‑Bail‑‑‑Sufficient circumstances were available against the accused which required consideration by the Trial Court after recording evidence‑‑‑Accused according to the bail application itself had worked as Chief Executive of the Company PSL and thereafter joined another Company RSL on 1‑3‑2000, but he had issued cheques in the sum of Rs.155 Million on behalf of RSL on 13‑1‑2000 in favour of Union Bank and on 14‑2‑2000 Board of Directors of RSL authorised him to sign all cheques on behalf of RSL‑‑‑Several other fake and forged documents had been pointed out by the prosecution‑‑‑Bail was declined to accused in circumstances.

Imtiaz Ahmed v. The State PLD 1997 SC 545 rel.

Abdul Hafeez Lakho for Applicant/Accused.

Muhammad Ghani and Navid Rasul Mirza, Special Prosecutors.

2002 M L D 1335

[Karachi]

Before S. Ahmed Sarwana, J

MUHAMMAD IMRAN‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 17 of 2002, decided on 24th January, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.324/353/34/399/401‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑Bail‑‑‑Accused after having been released on bail on merits by the Trial Court became absent on two dates in consequence whereof his bail was cancelled‑‑‑Absence of accused on the said two dates of hearing was due to his illness which he had explained after voluntarily appearing in the Trial Court and which was supported by a medical certificate‑‑‑Accused had been sufficiently punished for the aforesaid absence by remaining in Jail for over seven months‑‑‑Prosecution in spite of the assurance and the direction of High Court had not examined the Investigating Officer who was the only remaining witness in the case‑‑‑Offence for which the accused was being tried did not fall within the prohibition contained in S.497(1), Cr.P.C.‑‑­Accused was admitted to bail in circumstances.

Muhammad Inamul Haq v. State 2000 PCr.LJ 717 ref.

Ghulam Sarwar Korai for Applicant.

Mumtaz Ali Siddiqui for the State.

Date of hearing: 24th January, 2002

2002 M L D 1344

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

JAMIL A. DURRANI‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1454 of 2001, heard on 13th December, 2001.

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

‑‑‑‑S.497‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), Ss.9/10‑‑‑Bail‑‑‑Material collected by the prosecution had, prima facie, connected the accused with the offence allegedly committed by him‑‑­Perusal of the report of the Investigating Officer and the statements of the witnesses recorded during investigation did not lead to the conclusion that no reasonable grounds existed to believe that the accused had not committed the alleged offence‑‑‑Bail was declined to accused in circumstances.

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

‑‑‑‑S.497‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), Ss.9/ 10‑‑‑Bail in NAB cases‑‑‑Bail can be granted in cases under the National Accountability Bureau Ordinance, 1999, but only in appropriate cases where the Court comes to the conclusion that there is no reasonable ground to believe that the accused has committed the alleged offence.

Nawab Mirza for Applicant.

Dilawar Hussain, Additional Deputy Prosecutor‑General Accountability for Respondents.

Date of hearing: 13th December, 2001.

2002 M L D 1353

[Karachi]

Before Ghulam Nabi Soomro and Ata‑ur‑Rehman, JJ

MUHAMMAD HASHIM‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.38 of 1999, heard on 14th December, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7(i)(a)‑‑­Appreciation of evidence‑‑‑Two star witnesses of the prosecution had not implicated specifically any of the accused‑‑‑None of the two public witnesses including the injured witness had been produced by the prosecution at the trial‑‑‑Evidence of the complainant was not impressive as he had not deposed the whole truth‑‑‑No evidence was available on record sufficient to maintain the conviction and sentence of accused‑‑­Benefit of doubt was extended to the accused in circumstances and they were acquitted in circumstances.

(b) Criminal trial---

‑‑‑‑Burden of proof‑‑‑Appreciation of evidence‑‑‑ roof of guilt of an accused cannot be based upon probabilities how highsoever the same may be‑‑‑Finding of guilt in each criminal case should be based upon unimpeachable evidence on record‑‑‑Prosecution must affirmatively prove the circumstances under which the act was committed‑‑‑Such burden never shifts to defence‑‑‑In failure of discharge of such burden by the prosecution, the golden rule of benefit of doubt to the accused comes into play.

Khalid Mehmood, Muhammad Khalil Dogar and Zia Ahmed Awan for Appellant.

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

Date of hearing: 14th December, 2001.

2002 M L D 1363

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

Haji MUHAMMAD QASSIM‑‑‑Petitioner

versus

2ND ADDITIONAL DISTRICT JUDGE and 2 others‑‑‑Respondents

Civil Petition No.D‑2002 of 1995, decided on 26th October, 2001.

(a) Administration of justice‑‑‑

‑‑‑‑ Rules of procedure were intended to foster cause of justice and technicalities should not be allowed to thwart due course of dispensation of justice‑‑‑Case should be preferably decided on merits‑‑‑Merely a wrong mention of statutory provision could not disentitle a party to relief which otherwise was available to him under law.

(b) Jurisdiction‑‑‑

‑‑‑‑ Refusal to exercise jurisdiction vested by law, was to be treated on same footing as assumption of jurisdiction not vested by law.

Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97 ref.

Ali Gohar Soomro for Petitioner.

Respondent No.3 in person.

2002 M L D 1368

[Karachi]

Before Anwar Mansoor Khan, J

MUHAMMAD ABDUL MANNAN‑‑‑Plaintiff

versus

Dr. M. HAMID AFSAR‑‑‑Defendant

Execution No.89 of 1998 and Civil Miscellaneous Application No. 647 of 2001, decided on 20th September, 2001.

Qanun‑e‑Shahadat (10 of 1984)‑‑­‑

‑‑‑Art.79‑‑‑Proof of execution of document‑‑‑Where a document was required by law to be attested, the same would not be used in evidence, until at least two attesting witnesses had been called for purposes of proving its execution.

Imran Ahmed for the Decree‑Holder.

Rao M. Shakir Naqshbandi for the Judgment‑Debtor.

2002 M L D 1382

[Karachi]

Before Ghulam Nabi Soomro and Ata‑ur‑Rehman, JJ

SIRAJ AHMED NOMANI‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Bail Application No. 1486 of 2001, decided on 26th November, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.409/420/471/34/109‑­Prevention of Corruption Act (11 of 1947), S.5(2)‑‑‑Bail, grant of‑­ Accused was alleged to have only introduced main accused for purpose of opening Bank account and he was not a beneficiary‑‑‑No evidence was available to the effect that offence was committed with connivance of the accused ‑‑‑Co‑accused had been granted interim pre‑arrest bail‑‑‑" Accused suffered from a serious heart disease which fact had support from medical report available on record‑‑‑Accused was admitted to bail.

I.A. Hashmi for Applicant.

Khurshid Hashmi, Dy. A.‑G. for the State.

2002 M L D 1384

[Karachi]

Before Zahid Kurban Alvi and Muhammad Mujeebullah Siddiqui, JJ

MUHAMMAD ASLAM through Syed Ismail Shah‑‑‑Petitioner

versus

COLLECTOR OF CUSTOMS and 3 others‑‑‑Respondents

Constitutional Petition No.2849 of 1992 and Civil Miscellaneous Application No. 1695 of 1998, decided on 6th October, 2001.

Custom Act (IV of 1969)‑‑‑

‑‑‑‑Ss.17 & 171‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Cancellation of Import Permit and confiscation of imported goods‑‑‑ Importer on arrival of goods tried to obtain necessary Import Permit‑‑‑Collector of Customs, confiscated imported goods without issuing notice to importer under S.171 of Customs Act, 1969 on ground that importer had obtained Import Permit by willful suppression of facts and through fraudulent means which had no sanctity in the eye of law and same could not be accepted‑‑‑Case of the Authority was not that the Import Permit obtained by importer was not a genuine document, but it was alleged that Import Permit was obtained fraudulently and through misrepresentation‑‑‑If the Import Permit was fraudulently obtained, same could be cancelled and/or action could be taken against the functionaries who had issued the same‑‑‑Department was duty bound under law to see whether it was a valid and genuine Import Permit‑‑‑Once Authority was satisfied, it should have taken action according to law and it was not within purview of Collector of Customs to declare that Import Permit was obtained fraudulently or through misrepresentation and to confiscate goods of importer on that ground.

Mrs. Amna Bibi v. Islamic Republic of Pakistan PLD 1981 Kar. 690 and Shamim Textile, Mills, Lahore v. The Republic of Pakistan PLD 1972 Lah. 572 ref.

Muhammad Saleem Samo for Appellant.

Nemo for Respondents.

Date of hearing: 3rd October, 2001

2002 M L D 1392

[Karachi]

Before Syed Zawwar Hussain Jafri, J

KHAWAND BAKHSH‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.776 of 2001, decided on 18th January, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.392/506‑‑‑Bail, grant of‑‑­Complainant and witnesses had fully implicated accused in F.I.R. as well as in S.161, Cr.P.C.‑‑‑Challan was filed in Court having jurisdiction and accused had surrendered himself but thereafter Trial Court had been issuing non‑bailable warrants against accused from time to time‑‑Putting appearance after delay of about four months could not be considered as a valid ground for grant of bail when there was sufficient evidence available on record against accused as well as co‑accused‑‑‑Accused was not entitled to concession of bail in circumstances.

Sang Ali alias Ghulam Sarwar v. The State 1987 PCr.LJ 1610; Muhammad Asif Mumtaz v. The State 1999 PCr.LJ 283; Rafique Ahmed v. The State 2000 PCr.LJ 994; Muhammad Yasin v. The State 1996 PCr.LJ 1777 and Maqbool Hussain v. The State 1996 PCr. LJ 54 ref.

Ghulam Sarwar Korai for Applicant

Mumtaz Ali Siddiqui for the State.

2002 M L D 1397

[Karachi]

Before Mushir Alam, J

MUHAMMAD ALI--Appellant

versus

Mst. AISHA and 8 others‑‑‑Respondents

Second Appeal No. l and Civil Revision Application No.8 of 2000, decided on 17th September, 2001.

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

‑‑‑Ss. 11.5, 2(12), O.XX, R.12 &, O.XLI. R.27‑‑‑Specific Relief Act (I of 1877), Ss. 8 & 42‑‑‑‑Revision‑‑‑Suit for possession; declaration and mesne profits‑‑‑Dispute relating to identity of suit property was raised for the first time at revisional stage‑‑‑Defendant had never raised such controversy either before Trial Court or before the Appellate Court‑‑­Validity‑‑‑When a particular fact 'was disputed, it was incumbent on party seeking reliance on such fact to prove the same before Trial Court by producing evidence or documents sought to be relied upon and second chance to do such exercise under given circumstances could only be availed at first appellate stage under O.XLI, R.27, C.P.C.‑‑‑Such indulgence could not be extended at revisional stage under S.115, C.P.C. because new plea could not be allowed to be urged for the first time in, revision and documents not produced earlier, could not be looked into or taken into consideration ‑at that late stage.

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

‑‑‑‑Ss. 8 & 42‑‑‑Civil Procedure Code (V of 1908), Ss.2(12) & 115‑‑­Qanun‑e‑Shahadat (10 of 1984), Arts.85(5) & 129(c) ‑‑‑ Suit for possession, declaration and mesne profits ‑‑‑Revisional jurisdiction, exercise of‑‑‑Suit was resisted by defendant on grounds that identity of suit property was in dispute and that defendant had claimed title in respect of suit property by virtue of inheritance and on basis .of will‑‑­Validity‑‑‑Full description of suit. property had been given and identity of property had not been disputed by defendant either before Trial Court or before Appellate Court‑‑‑Such controversy could not be urged at revisional stage‑‑‑Defendant could not produce any document to prove his title in suit property by virtue of inheritance or on basis; of alleged Will‑‑‑Plaintiff on the contrary had succeeded in establishing her title in property resting on registered instrument‑‑‑Presumption as to genuineness, .correctness and authenticity of registered documents under Arts.85(5) & 129(e) of Qanun‑e‑Shahadat, 1984 was not dispelled by defendant and oral assertion was not sufficient to rebut registered documents produced by plaintiff in proof of her title in respect of suit property‑‑‑Suit for possession and declaration was rightly decreed by Trial Court and Appellate Court‑‑‑Concurrent findings of Courts below could not be interfered with in revisional jurisdiction of High Court when no illegality was pointed out in concurrent finding of Courts below.

Moinuddin Paracha v. Sirajuddin Paracha 1994 CLC 247; Muhammad Hussain v. Waheed Ahmed 2000 MLD 281 and Syed Akhtar Hussain Zaidi's case 1988 SCMR 753 ref.

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

‑‑‑‑S.2(12)‑‑‑Specific Relief Act (I of 1877), Ss.8 & 42‑‑‑Suit for possession, declaration and for mesne profits‑‑‑" Mesne profits"‑‑­Connotation‑‑‑" Mesne ‑profits" was an amount of compensation that was to be awarded against a person on wrongful possession of property of another‑‑‑Once Court came to a conclusion that possession of defendant on suit property was unauthorised, then compensation by way of mesne profits ought to have been awarded to plaintiff who proved to have title in respect of suit property‑‑‑Defendant had contended that since he claimed title of suit property and that he was not in occupation of suit property as its identity was disputed, question of mesne profits would not arise‑‑‑No documents to prove title in respect of suit property had been produced by defendant and defendant could not prove that she was owner of property on basis of Will‑‑‑Defendant was in occupation of suit property unauthorisedly‑‑‑Trial Court allowed entire claim of Rs.2,000 p.m. on account of mesne profits, whereas Appellate Court declined such relief on ground that property having been given free of rent to the predecessor of defendant due to close relationship, plaintiff was not entitled to any mesne profits‑‑‑Conclusion of Appellate Court was without any reasoning because no rent for a period of occupation of predecessor of defendant was being claimed by plaintiff, but it was claimed from the defendant on account of his wrongful possession from the date of death of predecessor of defendant‑‑‑Suit was decreed for mesne profits at rate of Rs.1,000 p.m. till handing over the possession of suit property to plaintiff.

Shaikh Muhammad Usman for Appellant.

K. B. Bhutto for Respondents.

Date of hearing: 27th August, 2001.

2002 M L D 1406

[Karachi]

Before Anwar Mansoor Khan, J

Messrs ATAULLAH ZIA & CO (PVT.) LTD and others‑‑‑Plaintiffs

versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION‑‑‑Defendant

Suit No. 108 of 1987, decided on 26th January, 2001

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 72, 74 & 76‑‑‑Non‑production of documents ‑‑‑Effect‑‑­Secondary evidence‑‑‑Effect of non‑production of document would be that party could be allowed to prove the same by producing secondary evidence.

(b) Travelling by air‑‑‑

‑‑‑‑Air ticket‑‑‑Confirmation of‑‑‑Status "R.Q.", meaning of‑‑‑If the passenger travelling by air was confirmed, ticket would bear a confirmation mark or a sticker was placed thereon‑‑‑Status of "R.Q."' would only mean that ticket was issued, but "with a request" from air company for booking on specified date‑‑‑Unless seat was confirmed, passenger could not board the‑ aircraft and he would be treated as on "chance" at the time of departure.

(c) Travelling by air‑‑‑

‑‑‑‑ Changing route of stopping places of aircraft‑‑‑Carrier/airline could change route of stopping places‑‑‑" Necessity" was that of carrier and it was not necessity of the passenger‑‑‑Carrier was not liable to prove as to what was necessity‑‑‑Operational reasons, in the present case, were sufficient to show that necessity was in changing route or stopping places.

(d) Damages‑‑‑

‑‑‑‑Suit for damages‑‑‑Plaintiff did not have even a confirmed ticket, but had a chance ticket‑‑‑ Plaintiff had no evidence to prove damages allegedly caused to him by changing route of stopping places of aircraft‑‑‑Suit for damages was dismissed in circumstances.

Khalilur Rehman for Plaintiff.

Amir Malik for Defendant.

Date of hearing: 26th January, 2001

2002 M L D 1410

[Karachi]

Before Anwar Zaheer Jamali, J

ARIF and another‑‑‑Plaintiffs

versus

JAFFAR PUBLIC SCHOOL through Principal/Administrator and 8 others‑‑‑Defendants

Suit No.1404 and Civil Miscellaneous Application No.8572 of 1999, decided on 3rd October, 2001.

Specific Relief Act (I of 1877)‑‑­

---Ss. 42 & 54‑‑‑Civil Procedure Code (V of 1908), O. XXXIX, Rr.l & 2‑‑‑Suit for declaration and perpetual injunction‑‑‑Claim of plaintiffs/applicants was that entire locality where their house was situated, was leased out by the Authority exclusively' for residential purposes‑‑‑Lease agreement showed the properties given on lease would be used for residential purposes only and would not be converted to other use and in case of breach, lessor would be entitled to forfeit lease and to resume property‑‑‑Defendants/respondents started school in a house which was opposite to the house of applicants which had created a nuisance for applicants and other residents of the locality ‑‑‑Validity‑‑­Use of residential house for running a school therein was an act which was not only breach of express terms of lease, but also was a patent illegality‑‑‑Plaintiffs had served a notice on defendants/respondents calling upon them not to venture for opening of school and had been prompt in their action against the respondents‑‑‑Opening of any number of schools in other residential bungalows, would not furnish any justification for perpetuating illegality committed by respondents in starting school in their residential house because two wrongs would not make one right‑‑‑Plaintiffs, in circumstances, had succeeded in making out a prima facie case for grant of interim injunction as balance of, convenience was in. their favour and they would suffer an irreparable loss and injury in case injunction was refused to them‑‑­Application for grant of interim injunction, was allowed, in circumstances.

1992 CLC 2540; PLD 1993 Kar. 631; 1999 CLC 66; PLD 1996 Lah. 442 and 990 CLC 448 ref.

K.A. Wahab for Plaintiffs

Shoaib Ashraf for Defendant No. l

Kazim Hassan for Defendants Nos.2 to 7.

2002 M L D 1416

[Karachi]

Before Ghulam Nabi Soomro and Wahid Bux Brohi, JJ

IMRAN AMIN ‑‑‑Applicant

versus

THE STATE‑‑‑Complainant

Criminal Bail Application No.977 of 2001, decided on 21st January, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Control of Narcotic Substances Act (XVII of 1997), Ss.6/9‑‑‑Bail, grant of‑‑‑Accused was in 33rd month of his continuous jail custody and no prosecution witness had been examined‑‑‑Accused was undertrial prisoner and charge had yet to be proved against him‑‑‑No compensation was provided in the judicial system for accused detained whether for a long or short time and ultimately acquitted‑‑‑Intention of law was not to keep undertrial prisoners in jail custody indefinitely‑‑‑Bail was granted to accused in circumstances.

1995 SCMR 362; 2000 SCMR 299 and 2001 PCr.LJ 331 ref.

M. Ilyas Khan and Shaukat Hayat for Applicant.

Shoaib M. Ashraf, Special Prosecutor for the ANF

2002 M L D 1422

[Karachi]

Before Ghulam Nabi Soomro and Ata‑ur‑Rehman, JJ

ILTAF KHAN ‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1415 and Miscellaneous Application, No.2773 of 2001, decided on 29th January, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.6/9‑‑­Juvenile Justice System Ordinance (XXII of 2000); S.10(7)(a)‑‑Sindh Children Act (XII of 1955), Ss. 10/64/68‑‑‑Bail, grant of‑‑‑Accused at, the time of commission of offence was hardly 13 years‑‑‑Documents filed by accused in support of his age were not alleged to be bogus or fraudulent and their genuineness was: not disputed in any manner‑‑‑School Leaving Certificate of accused showing his age was got verified and was reported to be genuine‑‑‑Juvenile Justice System Ordinance, 2000 as well as Sindh Children Act, 1955, having come to rescue of accused, he was entitled to grant of bail.

1983 SCMR 1001; 2000 PCr.LJ 634; 2001 MLD 1561; 1975 PCr. LJ 453 and 2000 PCr. LJ 638 ref.

Sh. Ghulam Sabir Niazi for Applicant

Shoaib M. Ashraf, Special Prosecutor for the ANF.

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2002 M L D 1429

[Karachi]

Before Muhammad Afzal Soomro, J

SHAH MURAD‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.789 of 2001, decided on 28th December, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail‑‑‑Parties had taken somersault as a consequence whereof all the prosecution witnesses including the complainant had sworn affidavits in the Trial Court exculpating the accused from the commission of the offence‑‑­Prosecution witnesses had disowned the earlier story as given in the F.I.R. and in the statements recorded under S.161, Cr.P.C.‑‑­Whole prosecution case hunched on the statement of the accused which was inadmissible in evidence‑‑‑Bail was allowed to accused in circumstances.

Muhammad Saffar v. State Cr. B.A.No.937 of 1997; Asghar Ali v. State Cr.B.A.No.595 of 2001; Imdad Ali and others v. State Cr.B.A.No.523 of 2001; Javeed Ahmed v. State Cr.B.A.No.D‑629 of 2001; Roshan anal another v State Cr B A No.446 of 2001; Muhammad Nawaz alias Najja v. State 1991 SCMR 111; Muhammad Hayat and others v. State 1988 SCMR 474; Bashir Ahmed and others v. State 1994 PCr.LJ 739; Khadim v. State 2001 PCr.LJ 1464; Mst. Bashiran Bibi v. Nisar Ahmad Khan and others PLD 1990 SC 83; Naseer Ahmed v. State PLD 1997 SC 347 and Mehboob‑ul‑Hassan v. State 1995 SCMR 1013 ref.

Muhammad Ayyaz Soomro for Applicant.

Muhammad Bachal Tonyo, Addl. A.‑G. for the State

2002 M L D 1454

[Karachi]

Before Muhammad Afzal Soomro, J

MUSHTAQUE AHMED and others‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.465 of 2000, decided on 23rd November, 2001.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.465/468/471/34‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.39‑‑‑Bail, grant of‑‑‑Prosecution had relied only on statements of accused recorded under S.161, Cr.P.C. which were prima facie inadmissible under Art.39 of Qanun‑e‑Shahadat, 1984‑‑‑Accused immediately after their arrest were neither put to any identification test before any Magistrate nor they were produced before any Magistrate for recording their judicial confession‑‑‑Investigating Officer had failed to make any sincere effort with regard to investigation of case whose minor children and ladies were kidnapped from Pakistan with intent to sell them abroad where they were to be used either in camel race or for satisfying sexual lust‑‑‑Investigating Officer deserved no leniency‑‑‑Court proposed a disciplinary action for major punishment against said officer‑‑‑Bail was granted to accused in circumstances.

Habibullah Sheikh and Mushtaque Ahmed Amir for Applicants.

Ghulam Muhammad Khan Durrani for the State

2002 M L D 1472

[Karachi]

Before Abdul Ghani Sheikh, J

ARSHAD and others‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.923 of 1999, decided on 1st October, 1999.

Criminal Procedure Code (V of 1898)---

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.324/353/186/34‑‑‑Bail, grant of‑‑‑Accused were alleged to have been apprehended at the spot, but matter of alleged firing by accused at Police party required further inquiry because nobody received injury from either sides‑‑‑State Counsel had no objection if, accused were admitted to bail‑‑‑Bail was granted to accused, in circumstances.

Abdul Ghafoor and others v. The State 1976 PCr. LJ 1573 ref.

Raja Sikandar Khan for Applicants

Arshad Lodhi, A.A.‑G. for the State

2002 M L D 1482

[Karachi]

Before Muhammad Ashraf Leghari, J

Mrs. MAH PARI‑‑‑Applicant

versus

MALANG DAD and others‑‑‑Respondents

Civil Revision Application No.274 of 1988, decided on 7th February, 2002.

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

‑‑‑‑S.9‑‑‑Specific Relief Act (1 of 1877), Ss.39 & 42‑‑‑ Suit in respect of lease and allotment of land‑‑‑Jurisdiction of Civil Court‑‑‑Scope‑‑‑Civil Court could only have jurisdiction in respect of lease and allotment when Authority empowered to pass such orders had mala fide passed them or in excess of its jurisdiction‑‑‑Lease in the present case had been executed by Authority in favour of respondent as well as petitioner in respect of their respective plots‑‑‑Civil Court could cancel the lease if it was found to be illegal or mala fide, but could not grant lease to somebody else as that was the power vesting in the land granting Authority except in exceptional and extraordinary circumstances.

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

‑‑‑‑O.XX, R.5, O.XLI, R.31 & S.115‑‑‑Specific Relief Act (I of 1877), Ss. 39, 42 & 54‑‑‑ Suit for declaration, permanent injunction and cancellation of lease‑‑‑Revision‑‑‑Judgment of Appellate Court below was passed in slipshod manner in which it was found that decision on each and every issue by Trial Court was correct‑‑‑No proper reasoning was given by the Appellate Court for maintaining judgment of Trial Court despite Trial Court had not properly maintained record of proceedings‑‑‑Judgments of two Courts below were based on misreading of evidence and were perverse and arbitrary‑‑‑Courts below had acted with material irregularity and had exercised jurisdiction not vested in them by law‑‑‑Orders were passed by Courts below without considering material available on record inasmuch as they had failed to decide and discuss vital points of entitlement of ownership of subject‑matter which resulted in grave injustice‑‑‑Two judgments of Courts below, were set aside in revision.

Khalilur Rehman for Applicant.

Amir Azam for Respondents.

Date of hearing: 16th January, 2002.

2002 M L D 1491

[Karachi]

Before Anwar Zaheer Jamali, J

THE STATE‑‑‑Applicant

versus

NAZIR AHMED ‑‑‑Respondent

Criminal Miscellaneous Appeal No.3 of 2001, decided on 30th January; 2002.

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

‑‑‑‑S.497(5)‑‑‑Penal Code (XLV of 1860),Ss.302/324/504/109/34‑‑‑Bail, cancellation of‑‑‑Accused was nominated in crime‑‑‑Accused armed with double‑barrel gun had caused fatal injury to the deceased ‑‑‑F.I.R. was promptly lodged‑‑‑Incident had occurred in daytime and was witnessed not only by complainant, but also by many other persons who in their statements under S.161, Cr.P.C. had clearly implicated accused and had supported prosecution case‑‑‑Trial Court after taking into consideration all those aspects of the case had declined bail to accused in his earlier bail application‑‑‑Irrespective of merit of plea of alibi raised by accused in his second bail petition, such plea was available to him at the time of filing of his first bail application, but was not raised‑‑‑Second bail application moved by accused which was based on sole plea of alibi, was not maintainable in law and was liable to be dismissed on that ground alone‑‑‑Bail granted to accused was cancelled in circumstances.

Zubair's case PLD 1986 SC 173; 1992 SCMR 1286 and Hafiz Ghulam Akbar v. The State 2001 PCr. LJ 1719 ref.

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

Ali Murad Abro for Respondent.

Date of hearing: 15th January, 2002.

2002 M L D 1496

[Karachi]

Before Zahid Kurban Alvi, J

MUHAMMAD PANNAH Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.354 of 2001, decided on 19th October, 2001.

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

‑‑‑‑S.497(2)‑‑‑Penal. Code (XLV of 1860), Ss.302/324/149‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑Bail, grant of‑‑­Animosity existed between the parties‑ ‑‑Complainant's group included two members who were duly armed and they had also fired in retaliation‑‑‑Incident was reported within 45 minutes despite the Police Station was about two kilometres from place of occurrence‑‑­Complainant seemed to be a person with sharp memory as he had given not only name of accused including their father's name, but their residence and castes also‑‑‑Complainant also had given minute details as to who fired at whom, what injury was inflicted and how the bullet entered the body‑‑‑Where so many people confronted another group of people, it would be difficult to digest that complainant who was in heart of incident would be having presence of mind to recognize so many people and he would also check and see who was hitting whom‑‑‑While granting bail Court could not go into depth of whole incident as that picture would only emerge once evidence was recorded‑‑‑Accused had created enough doubt in story of the complainant as to bring the bail application within ambit of further enquiry.

Jan Muhammad alias Janoo v. The State 1994 PCr.LJ 541; Bahadar v. The State 1994 PCr.LJ 361; Mumtaz Hussain and 5 others v. The Statel996 SCMR 1125; Muhammad Sadique and another v. The State 1998 SCMR 626; Abdul Aziz v. The State 1996 SCMR 1693; Mumtaz Hussain and others v. The State 1996 SCMR 1125; Syed Qaim Ali Shah v. The State 1992 PCr.LJ 9; Sakhi Zaman and 2 others v. The State and another 1998 MLD 1957 and Bashir Ahmed v. The State 1989 PCr.LJ 1783 ref.

Mst Abdul Hakeem Bijarani and Saeed Ahmed Bijarani for Applicant.

Ali Azhar Tunio, Asstt. A.‑G.

Date of hearing : 15th October, 2001.

2002 M L D 1502

[Karachi]

Before Faiz Muhammad Qureshi, J

GUL HASSAN ‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑277 of 2001, decided on 18th May, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)‑‑‑Bail, grant of‑‑‑Complainant and eye‑witnesses in their affidavits had exonerated accused‑‑‑Two sets of evidence were in the case, one in shape of statements under S.161, Cr. P.C. and other in shape of affidavits sworn by complainant and eye‑witnesses‑‑‑Case being of two versions, question as to which version was correct, was yet to be decided at the time of trial ‑‑‑Eye­witnesses who swore affidavits were material witnesses and the rest were police officials‑‑‑Case fell within purview of S.497(2), Cr. P.C.‑‑­In view of affidavits sworn by complainant and eye‑‑witnesses and their statements under S.161, Cr. P.C. before police‑‑‑Bail was granted to accused.

Muhammad Ayaz Soomro for Applicant.

Abdul Fatah Mughal for the State.

2002 M L D 1506

[Karachi]

Before Muhammad Roshan Essani and Ghulam Nabi Soomro, JJ

MUHAMMAD HANIF KHAN AFRIDI‑‑‑Appellant

versus

Mst. SHAKILA BEGUM and others‑‑‑Respondents

High Court Appeal No. 110 of 1995, decided on 25th May, 2000.

(a) Islamic Law‑‑‑‑

‑‑‑‑Succession‑‑‑Service emoluments‑‑‑Deceased prior to his death executed Nomination Form in which he nominated his wife, mother and uncle to receive his service emoluments after his death‑‑‑Subsequently nominator cancelled said Nomination Form and executed new Nomination Form wherein he authorized all his legal heirs to receive his service emoluments equally in consonance with Islamic Law‑‑­Nomination Form subsequently executed by deceased could not be implemented in view of Administrative Order No.25/77 dated 21‑6‑1977 containing certain terms, restrictions and formalities for getting Nomination Form executed‑‑‑Said Administrative order did not connote that its scope was out of purview of law of inheritance and Muslim Personal Law‑‑‑Department had only to disburse service emoluments of Nominator/deceased among his legal heirs as per guidelines of any ruling or applicable rules‑‑‑Policy and purport formulated in Administrative Order could not be reckoned to supersede any law ‑‑‑Administrative order was binding upon those employees who were serving and wanted to bring some changes in their nominations.

(b) Islamic Law‑‑‑

‑‑‑‑Succession‑‑‑Widow claimed service emoluments of deceased exclusively by virtue of her position as widow and nominee appointed by deceased in his service record whereas mother and brothers of deceased claimed their respective shares from service emoluments of deceased‑‑­High Court benefited widow as nominee as a whole to the exclusion of all, other legal heirs of deceased including mother and brothers of deceased‑‑Validity‑‑‑Service emoluments of deceased in all shapes and benefits were to be distributed equally among his legal heirs and status of widow as nominee was merely to collect or receive service emoluments of deceased which right was conferred upon her by statute‑‑‑Nomination of widow which merely had conferred right to collect or receive amount of service emoluments of deceased, could not deprive other heirs of nominator/deceased entitled under law of succession applicable to deceased‑‑‑Nomination in no way could be held to pass title to nominee nor same would give right to change law of succession.

PLD 1995 Kar. 560; 1998 MLD 1247; PLD 1964 SC 536; 1995 SCMR 1489; 1993 CLC 2448; PLD 1994 Kar. 237; PLD 1991 Pesh. 1 and PLD 1991 SC 731 ref.

(c) Islamic Law‑‑‑

‑‑‑‑Succession‑‑‑Gift and Will‑‑‑Widow of deceased aimed .as a nominee entire service emoluments of her deceased husband to the exclusion of all other legal heirs including his mother and brothers‑‑­Widow as nominee was not entitled to receive whole emolments to the exclusion of other heirs of deceased was believed and taken to degree of inheritance by exclusion of all other heirs on prospect of holding and conclusion that in guise of nominee, she was gifted or willed for estate of deceased, yet nominee did not qualify for whole of estate of deceased‑‑­Even if the ingredients of gift propounded in Islamic Law were not established to hilt as last ingredient of delivery of possession could not be completed in lifetime of nominator‑‑‑Will was to be done proportionately to the extent of 1/3 share only‑‑‑Deceased was Muslim and distribution of his estate of whatsoever nature would be devolved among his heirs within their share under Muslim Personal Law which law has an overriding effect in case of inconsistency of any other law or Pension or Service Rules‑‑‑Brothers and mother of deceased could not be taken away from purview of inheritance to the sole inclusion of widow‑‑‑All legal heirs of deceased were equally entitled to the extent of their respective shares as per Muslim Personal Law in service emoluments of deceased.

Miss Sana Minhas for Appellant.

Mir Afzal for Respondent No. 1.

Nemo for Respondents Nos.2 and 3

Date of hearing: 1st March, 2000.

2002 M L D 1512

[Karachi]

Before Sabihuddin Ahmed and Zahid Qurban Alvi, JJ

Mirza MEHBOOB BAIG and others‑‑‑Petitioners

versus

DEPUTY SETTLEMENT COMMISSIONER (LAND) and others‑‑‑Respondents

Civil Petition No.D‑1315 of 2001, decided on 12th December, 2001.

(a) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑‑

‑‑‑‑S.2(2)‑‑‑Pending proceedings‑‑‑Word "deemed" presupposed that a state of affairs did not actually exist, but was assumed to exist through a legal fiction‑‑‑Such legal fiction could only be created by statutory intendment and not on executive fiat‑‑‑It must be independently examined whether in circumstances of a case any proceedings could be deemed to be pending in accordance with requirements of S.2(2) of Evacuee Property and Displaced Persons, Laws (Repeal) Act, 1975.

(b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑

‑‑‑‑S.2(2)‑‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.12‑‑‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), S.10‑‑‑Allotment of property‑‑‑Pending proceedings‑‑­No transfer of evacuee property in favour of claimants. had taken place either under S.12 of Displaced Persons (Land Settlement) Ac&1958 or under S.10 of Displaced Persons (Compensation and Rehabilitation) Act, 1958 till both the said Acts were repealed in 1975 and nothing was on record to indicate that appropriate applications for allotment of land or urban immovable property were actually submitted by claimants‑‑­Contention of claimants that pending proceedings for purpose of S.2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 did not necessarily mean judicial or quasi‑judicial proceedings before Settlement Authorities and even executive proceedings seeking allotment of properties were covered by expression "pending proceedings" was repelled‑‑‑Mere fact that certain produce index units were unutilized against verified claims of claimants at time of enforcement of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 could not bring the case of claimants within scope of expression "pending proceedings" and entitle them to allotment of land‑‑‑No specific agricultural land or urban property having been allotted to claimants before enforcement of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, claimants could claim cash compensation in respect of their unsettled units.

Nawab Din v. Member, Board of Revenue PLD 1979 SC 846; Aligarh Muslim University .Old Boys Cooperative Housing Society v. Muhammad Hismuddin Ansari and others 1993 SCMR 1062; Syed Saifullah v. Board of Revenue, Balochisan 1991 SCMR 1255; Member, Board of Revenue v. Muhammad Mustafa and others 1993 SCMR 732; Muhammad Ramzan v. Member Revenue; C.S.S. and others 1997 SCMR 1635; Ali Muhammad and others v. Chief Settlement Commissioner and others 2001 SCMR 1822; Member and Muhammad Ashraf Khan and others v. Administrator (RP)/Settlement Commissioner, Lahore and others 1987 SCMR 1358 ref.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts.188 & 189‑‑‑Powers of Supreme Court to modify its earlier views‑‑‑View of a larger Bench of Supreme Court would prevail in case of conflict‑‑‑Supreme Court could always modify its earlier view and when a particular view had been taken by a larger Bench, later in time, same would be treated as law declared.

Muhammad Saleem v. Fazal Ahmed 1997 SCMR 315; Fazal Muhammad v. Khalid Hussain 1997 SCMR 1368; Muhammad Riasat v. Secretary Education 1997 SCMR 1626 and Baber Shahzad v. Saeed Akbar 1999 SCMR 2518 ref.

(d) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑

‑‑‑‑Ss.2(2) & 4‑‑‑Evacuee Property . (Residual Work) Disposal Rules, 1978, Rr.2(u) & 6‑‑‑Repeal of Evacuee Laws‑‑‑Pending proceedings‑‑‑Effect on residual work‑‑‑Claimants had contended that apart from pending proceedings, repeal of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, did not affect a variety of residual work which was being performed by Settlement Authorities, prior to the repealing Act and upon enforcement of said Act and stood transferred to Board of Revenue under S.4 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 and that even if their verified claim which had remained unsatisfied, was riot to be treated as "pending proceedings", concerned officer would continue to enjoy power to. decide request of claimants for grant of land on the basis of such claim irrespective of repeal of Evacuee Laws‑‑‑Contentions were repelled because in first instance S.4 of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 appeared to be related to work regarding documentation of recovery of outstanding transfer price, rent or mortgaged money of such property already disposed of and discharge of liability out of those recoveries‑‑‑Expression "residual work" in given contest could not be given such a wide meaning as allotment of property itself‑‑‑No specific agricultural land or urban property had been allotted to claimants all that they could claim was cash compensation in respect of their unsettled units.

(e) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑‑

‑‑‑‑S.2(2)‑‑‑Civil Procedure Code (V of 1908), S. 12(2)7‑‑Constitution of' Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Provisions of S.12(2), C.P.C. also enabled the High Court to recall‑ an order on ground of absence of jurisdiction‑‑‑Jurisdiction of High Court under Art.199 of Constitution of Pakistan (1973) was confined to issuance of directions to public functionaries to do what law required them to do‑‑­Unutilized produce index units available with claimants in the present case could not in law be treated as 'pending proceedings' no directions to give effect to an order purporting to treat them as such could be given.

Abdul Hafeez Pirzada, Makhdum Ali Khan, Miss Sana Minhas and Rana Ikramullah for Applicants.

Arif Hussain Khaliji and Abid Zuberi for the Inventor

Mushtaque Ahmed Memon and Nadeem Akhtar for Petitioners

Sulleman Habibullah, Sindh Addl. A.‑G

Dates of hearing: 6th, 7th, 9th, 20th, 27th and 28th August 2001.

2002 M L D 1527

[Karachi]

Before Sabihuddin Ahmed and Wahid Bux Brohi, JJ

MUHAMMAD YOUSUF‑‑‑Petitioner

versus

GOVERNMENT OF SINDH and others‑‑‑Respondents

Civil Petition No.D‑324 of 2000, decided on 13th April, 2000

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss.8 & 9‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Dispute relating to title of premises‑‑‑Dispossession of occupants‑‑‑Mere existence of a dispute as to ownership or even a claim as to title of premises, would not authorize any one to take forcible possession of said premises‑‑‑Action of forcible possession of premises, was struck down by High Court as without lawful authority, restraining Authorities from taking any action against occupants of premises except in accordance with law.

Muhammad Ali Saeed and Sham Das for Petitioner.

Raja Qureshi, A.‑G. for Respondents Nos. 1, 3 and 4.

Manzoor Ahmed for Respondent No.2.

S.A. Jalib Chaudhry for Respondent No.5

2002 M L D 1531

[Karachi]

Before Hamid Ali Mirza, J

KARACHI METROPOLITAN‑ CORPORATION and others‑‑‑Applicants

versus

Mst. RAZIA BEGUM and others‑‑‑Respondents

Civil Revision No. 129 of 1992 and Civil Miscellaneous Application No. 77 of 1999, decided on 19th April, 1999.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.115‑‑‑Revision‑‑‑Limitation‑‑‑Delay, condonation of‑‑‑Revision which was to be filed within 90 days, was clearly barred by seven days‑‑‑Delay was attributed to misplacing of file in the office which could not be said to be sufficient cause‑‑‑In absence of sufficient cause for condonation of such delay, revision was liable to be dismissed being time‑barred.

Ghulam Hamid Munshi v. Haji Siddiq and 2 others 1997 MLD 2252; Muhammad Ishaq v. Mst. Bashiran Bibi and 2 others 1998 MLD 272; Government of Punjab and others v. Nazir Ahmad Malik 1998 CLC 830; Akbar Khan Muhammad Khan 1990 CLC 1828 and Sultan Muhammad v. Muhammad Ashraf and 4 others 1991 CLC 269 ref.

Manzoor Ahmad for Applicants

Amanullah Khan for Respondents

Date of hearing: 19th April, 1999.

2002 M L D 1546

[Karachi]

Before Anwar Mansoor Khan, J

Mst. RUBINA MAKHDOOM‑‑‑Plaintiff

versus

Mst. SAJIDA AHMED ‑‑‑Defendant

Suit No. 965 of 2001, decided on 21st August,. 2001.

Contract Act (IX of 1872)‑‑‑

‑‑‑‑S.29‑‑‑Void agreement‑‑‑Enforcement of‑‑‑Any agreement, meaning of which was not certain or was incapable of being certain or was vague, could not be enforced being void‑‑‑Court declined to allow implementation of a term in an agreement which was neither certain nor capable of being made certain.

Syed Samiuddin Sami for Plaintiff.

Muhammad Amin Lakhani for Defendant.

Date of hearing: 21st August, 2001.

2002 M L D 1549

[Karachi]

Before Faiz Muhammad Qureshi, J

ALI AKBAR‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No.330 of 2000, decided on 9th August, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.561‑A‑‑‑Penal Code (XLV of 1860), S.216‑A‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.21(2)‑‑­Quashing of proceedings‑‑‑Scope‑‑‑Consideration‑‑‑Circumstances in which accused was apprehended and articles recovered from him did not constitute any offence whereby it could be established that applicant had committed the offences alleged against him‑‑‑High Court in exceptional cases could exercise its jurisdiction under S.561‑A, Cr.P.C. without waiting for Trial Court to pass orders under 5.249‑A or 265‑K, Cr.P.C. if facts of case so warranted‑‑‑Main consideration to be kept in view would be as to whether continuance of proceedings before trial forum would be futile exercise, wastage of time and abuse of process of Court of not‑‑‑If on basis of facts admitted and patent on record, no offence could be made out, then it would amount to abuse of process of law to allow prosecution to continue with the trial‑‑‑No bar existed to move straightaway to High Court under S.561‑A, Cr.P.C. for quashing of proceedings‑‑‑Accused against whom no offence had been made out, had Rightly moved high court for quashing of proceedings against him.

Zahid Hussain v. The State 1990 PCr.LJ 1209 and Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122 ref.

Ghulam Qadir Jatoi for Appellant.

Kazi Wali Muhammad for Asstt A,.‑G. for the State.

Date of hearing: 9th August, 2001.

2002 M L D 1554

[Karachi]

Before Saiyed Saeed Ashhad, C. J. and Muhammad Afzal Soomro, J

NAEEMUDDIN SOOMRO‑‑‑Petitioner

versus

GOVERNMENT OF SINDH and another‑ ‑‑Respondents

Constitutional Petition No.767 of 1998, decided on 31st May, 2001.

(a) Educational institution‑‑‑

‑‑‑‑Admission in Medical College‑‑‑Candidate passed Intermediate Examination in 1996 and applied for admission in Medical College, but could not get admission on merits‑‑‑Subsequently when admissions were being made on recommendation of Chief Minister, candidate applied for such nomination and was provided admission‑‑‑Candidate appeared in First 'Year Examination of M.B.B.S. and after passing that examination was promoted to Second Year M.B.,B.S. but Authority in compliance of order of the High Court, cancelled admission of candidate alongwith four others and in their place five others were admitted in the next session‑‑­High Court in its order on basis of which admission of candidate alongwith four others was cancelled had held that admission of less qualified candidates made on recommendations of Chief Minister be cancelled and in their place admission to candidates who secured more marks should be provided‑‑‑By the time order of High Court was passed, candidate alongwith four others whose admissions were cancelled, had already been promoted to Second Year M.B.,B.S. Class and other candidates who had more marks were provided admission in next session in altogether a different Batch‑‑‑Cancellation of admission of candidates having less qualification was not at all required as they had already been promoted to Second Year M.B.B.S. Class wherein no admissions were to be made against seats to be vacated by cancellation of admission of candidates.‑‑‑Admissions to five more qualified candidates were not provided on seats which were to fall vacant an cancellation of admission of five less qualified candidates as by that time admissions had been provided to five more qualified candidates, whereas five less qualified candidates, had already been placed in Second Year M.B.B.S.‑‑‑Strict observation and operation of order of High Court would act adversely and to the prejudice of five less qualified candidates‑‑‑No person or party should be made to suffer adversely or injustice be caused by it by order of Court‑‑‑Strict compliance of order of High Court would result in causing injustice and severe punishment to candidates as their admission would be cancelled, but corresponding gain would not be provided to anybody as person who was to gain by cancellation of admission of candidates, had already been accommodated by providing admission in M.B.,B.S. Class in the next session‑‑‑Authority was not justified in ordering cancellation of admission of candidate in circumstances.

Miss. Humaira Kaukab v. Punjab Government and others 1992 CLC 446; The State v. Asif Adil and others 1997 SCMR 209; Muhammad Mansah and others v. Sabir Ali 1999 SCMR 1982; Sherin and others v. Fazal Muhammad and others 1995 SCMR 584 and Jai Behram v. Kedar Nath AIR 1922 PC 269 ref.

(b) Administration of justice‑‑‑

‑‑‑‑ No person or party should be made to suffer adversely or injustice to he caused to it by order of the Court.

Shamsuddin Khalid for Petitioner.

Sarwar Khan, Addl. A.‑G. for Respondent.

Date of hearing: 31st March, 2001.

2002 M L D 1561

[Karachi]

Before Muhammad Ashraf Leghari, J

ESSA‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1745 of 2001, decided on 15th January, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(l)‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)‑‑‑Bail‑‑‑Tanker of complainant was followed by the truck of accused which signalled the complainant to stop his truck‑‑‑On complying the accused robbed complainant on pistol point‑‑‑Culprits who were identified by vehicle lights and after 11 days of incident were rightly picked up in identification test by three eye­witnesses‑‑‑No enmity was suggested against witnesses‑‑‑Case of Haraba was covered by prohibitory clauses of S.497(1), Cr. P.C. ‑‑‑Sufficient material was on record to connect accused with commission of crime‑‑­Deeper appreciation of evidence could only be made after evidence was recorded at trial‑‑‑Accused did not deserve bail.

M.R. Zia Rana for Applicant.

Javed Akhtar for the State.

Date of hearing: 15th January, 2002.

2002 M L D 1566

[Karachi]

Before Wahid Bux Brohi, J

ASGHAR ALI ‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑175 of 2002, decided on 15th April, 2002.

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

‑‑‑‑S.497(1), first proviso‑‑‑Penal Code (XLV of 1860), ‑Ss.299(1)(a)/ 302/306/308‑‑‑Grant of bail on ground of age of accused‑‑‑Bail plea in the present case had been urged on ground that at time of commission of offence accused had not attained age of 18 years‑‑‑commission of offence was 17 years, 7 months and 4 days old as per entries in School Leaving Certificate‑‑­Accused, in circumstances, was minor within meaning of S.299(1)(a), P. P. C. and was not liable to Qisas as contemplated under S. 306(a), P.P.C.‑‑‑F.I.R. showed that accused and co‑accused repeated fire, but co‑accused had been let off during investigation‑Maturity of mind of accused could better be judged by Trial be premature to assess state of mind of accused on basis of material so far available unless witnesses were subjected to cross‑examination‑‑‑Accused was admitted to bail.

Muhammad Sudheer v. The State 1998 MLD 1994 ref.

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

‑‑‑‑S.497(1), first proviso‑‑‑Penal Code (XLV of 1860), Ss.299(a), 302, 306 &.308‑‑‑Juvenile Justice System Ordinance (XXII of 2000), Ss.2(b), 10(7)(a)(b) & 12(a)‑‑‑Grant of bail on ground of age of accused‑‑­Accused had contended that he being a child within the meaning of S.2(b) of Juvenile Justice System Ordinance, 2000 at the time of commission of offence, punishment of death could not be awarded to him and that instead of cl.(a) to subsection (7) of S.10 of Juvenile Justice System Ordinance, 2000, cl.(b) of said subsection would apply to his case‑‑ ‑Nothing clearly could be spelt out from conflicting provisions as on the one side under S.12 of Juvenile Justice System Ordinance, 2000 punishment of death to a child had expressly been barred/excluded while under S.10(7)(a) of Juvenile Justice System Ordinance, 2000, it has been laid down that a child facing a case punishable with death could be allowed that concession only when accused had remained in custody for more than one year‑‑‑Subsection (7) of S.10 of Juvenile Justice System Ordinance, 2000, could be related to 'offence' punishable with death and not punishment to be awarded to an accused.

Muhammad Ayaz Soomro for Applicant.

Muhammad Bachal Tunio, Addl. A.‑G.

2002 M L D 1569

[Karachi]

Before Rana Bhagwandas, Dr. Ghous Muhammad, and Ghulam Nabi Soomro, JJ

S.I.T.E. ‑‑‑Appellant

versus

Mst. QAMAR HILAL and others‑‑ ‑Respondents

High Court Appeals Nos.57 to 61 of 1994, decided on 20th September, 1999.

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

‑‑‑‑Ss.35, 35‑A & O.XLI, R.33, proviso‑‑‑Costs in civil cases, awarding of ‑‑‑Costs that could be awarded under S.35, C.P.C. were actual costs whereas costs awarded under S.35‑A, C.P.C. were compensatory costs in respect of false or vexatious claims or defences‑‑‑Law‑makers in their wisdom had maintained clear distinction between fields occupied by Ss.35 & 35‑A. C.P.C. respectively‑‑‑Both provisions of Ss.35 & 35‑A, C.P.C. had conferred discretionary powers upon a Court of law to award costs. if and when pre‑conditions prescribed therein were met‑‑‑Such discretion could not be exercised unreasonably, arbitrarily and unjustly and on the contrary must be exercised objectively, reasonably and strictly in accordance with law‑‑‑Discretion to award costs under S.35 or S.35‑A, C.P.C., though was available to the original Court, but Appellate Court hearing matter had been denuded with power to award compensatory costs under S. 35‑A, C.P.C. in view of bar contained in proviso to O.XLI, R.33 of C.P.C.‑‑‑Section 35‑A, C.P.C. itself had also excluded `an appeal' from its purview as was provided in S. 35‑A(1), C.P.C.‑‑‑Appellate Court had no power to award costs under S.35‑A, C.P.C. which deals with vexatious. meritless and frivolous claims and defences‑‑‑If Appellate Court would come to the conclusion that appeal wad false, fake, frivolous or vexatious, it would have no power and authority to award costs on that count‑‑‑Such was a clear mandate of law.

Muhammad Hanif Shibli v. Deputy Settleme­nt Commissioner, Gojra at Lyallpur 1983 SCMR 1273; Sharaf Din v. Mst. Maqbool Jan 1995 MLD 1602; Azad Government v. Syed Muhammad Afzal Shah 1996 MLD 260 and Khurshid Ahmed Naz Afridi v. Bashir Ahmed 1993 SCMR 639 ref.

(b) Interpretation of statutes‑‑‑

‑‑‑‑ Substances and not form of actions and events had to be scrutinized.

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

‑‑‑‑S.35‑A, 107(2) & 151‑‑‑Powers of Appellate Court‑‑‑Scope‑‑‑Powers of Appellate Court were very wide‑ ‑‑Appellate Court under Ss.107(2) & 151, C.P.C. was equipped with powers to pass all such orders which would be necessary to meet ends of justice and such powers could be exercised by Appellate Court in same manner as could be exercised by the Trial Court‑‑‑Inherent powers under S.151, C.P.C., however, could not be exercised when there was some other specific provision to cater for such eventuality‑‑‑Where C.P.C. specially had debarred Appellate Court from awarding costs in case of frivolous and false appeals, it would be quite inconceivable to imagine that inherent powers under C.P.C. could be resorted to for such purpose‑‑‑Once Appellate Court had found appeals to be absolutely vexatious and frivolous, no costs could have been awarded for such reasons as that would amount to awarding costs under S.35‑A, C.P.C. which deals with costs and vexatious and frivolous defences/claims which clearly fell outside jurisdiction of Appellate Court.

N.‑W.F.P. Government N‑. Abdul Ghafoor Khan PLD 1993 SC 418; Province of Punjab v Abdul Majid 1997 SCMR 1692 Karamatullah Khan v. Government of West Pakistan PLD 1967 Late 171, Conforce Ltd. v. Syed Ali Shah PLD 1977 SC 599 and Manohar Lal v. Seth Hira Lal AIR 1962 SC 527 ref.

S.A. Samad for Appellants.

Muhammad Sharif for Respondents.

Date of hearing: 9th August, 1999.

2002 M L D 1577

[Karachi]

Before Zahid Kurban Alvi, J

SIKANDAR ALI ‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Revision Application No.S‑39 of 2001, decided on 8th December. 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.506(2)‑‑‑Appreciation of evidence‑‑‑Accused was working as driver in Department in which complainant was working as Assistant Director ‑‑‑F.I.R. showed that some enmity existed between accused and complainant who was his immediate boss which had resulted in the incident‑‑‑Eye‑witness of case who was present at the time of incident was not examined by prosecution and he was given up‑‑‑Remaining witnesses examined in the case were interested witnesses as they all were working under control of complainant‑‑‑Witnesses examined by accused had stated that accused had never extended any threats to complainant and on that point they were not cross‑examined by prosecution‑‑­Apparently accused had been involved in the case on account of some enmity or for not being obedient to complainant‑‑‑Conviction and sentence awarded to accused by Courts below being not proper were set aside.

Asif Ali Abdul Razzak Soomro for Applicant.

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

Date of hearing: 7th November, 2001.

2002 M L D 1592

[Karachi]

Before Justice (Retd.) Saleem Akhtar, Federal Tax Ombudsman

Messrs IMPERIAL‑GLASS TILES CO.‑‑‑Complainant

versus

SECRETARY, REVENUE DIVISION, ISLAMABAD‑‑‑Respondent

Complaint No.C‑44‑K of 2001, decided on 15th October, 2001.

Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss.25 & 81‑‑‑Valuation‑‑‑Import of tiles‑‑‑ITP value‑‑‑Database value‑‑‑Provisional assessment‑‑‑Release of goods at declared value under S.81 of the Customs Act, 1969‑‑‑Bank guarantee‑‑‑Valuation Department did not finalize the assessment in the prescribed time frame and the Bank Guarantee Cell encashed the pay orders without getting any response from the Valuation or Appraisement Department or giving opportunity of hearing to the complainant‑‑‑Validity‑‑‑Customs Authorities admitted that reliance was placed on the valuation Database in provisional assessment under S.81 of the Customs Act, 1969‑‑­Customs Authorities did not finalize the assessment in accordance with the provisions of S.8‑‑‑Bank guarantees furnished were arbitrarily encashed without observing mandatory provisions of S.81 of the Customs Act, 1969‑‑‑Higher value adopted for finalization of assessment did not seem to represent the customs value‑‑‑Origin of goods, a significant factor in determining customs value, was also not taken into account‑‑­Alarm of impending completion of six months aroused the concerned group to finalize the assessment but it was done in an arbitrary manner without hearing the importers‑‑‑Principles of GATT based Code of Valuation, legislated in S.25 of the Customs Act, 1969, providing various methods for determination of customs value were not followed‑‑­Federal Tax Ombudsman recommended to re‑examine the valuation of Ceramic Tiles of the country of origin in consultation with the Controller of Customs Valuation; to afford opportunity to the complainant/importer to represent their views about the valuation aspect and to issue formal assessment order within six weeks.

Sultan Ahmad Shamsi, representing the Complainant.

Dr. Nasir Khan, Assistant Collector of Customs.

Barkat Ali Bukhari, Additional Collector of Customs.

Irfanur Rahman, Deputy Controller of Valuation.

Altaf Ahmad, Principal Appraiser.

2002 M L D 1608

[Karachi]

Before S. Ahmed Sarwana and Muhammad Mujeebullah Siddiqui, JJ

STAR TEXTILE MILLS LTD. and others‑‑‑Petitioners

versus

GOVERNMENT OF SINDH and others‑‑‑Respondents

Constitutional Petitions Nos.D‑1273, D‑1376 to D‑1378, D‑1447 and D‑1448 of 2000, decided on 27th June, 2001.

(a) West Pakistan Urban Immovable Property Tax Act (V of 1958)‑‑‑

‑‑‑‑S.8‑A [as added by Sindh Finance Act (VII of 1977)]‑‑‑Constitution of Pakistan (1973), Arts. 12 & 142‑‑‑Retrospective application of S.8‑A of West Pakistan Urban Immovable Property Tax Act, 1958‑‑‑Validity‑‑­Only bar to which power of Legislature is subjected is that a law enacted is not violative of any provision of the Constitution‑‑­Retrospective application of the law authorizing punishment is prohibited by Art. 12 of the Constitution, except that there is no other restriction on the power of Legislature from applying any legislation retrospectively‑‑­Provisions of S.8‑A of West Pakistan Urban Immovable Property Tax Act, 1958 was intra vires of Provincial Assembly and Constitution.

Golden Industries Limited v. Province of Sindh and others PLD 1983 Kar. 76 fol.

(b) Words and phrases--

‑‑‑“Vested right”--Definition.

Venkataramaiya's Law Lexicon, 1986 Edn., Vo1.4, p. 2608 ref.

(c) West Pakistan Urban Immovable Property Tax Act (V of 1958)‑‑‑

‑‑‑‑Ss.2(g)(i), 5 & 8‑A [as added by Sindh Finance Act (VII of 1977) and substituted. by Sindh Urban Immovable Property Tax (Amendment) Act (VIII of 1987)]‑‑‑General Clauses Act (X of 1897), S.21‑‑‑Constitution of Pakistan (1973)], Art. 199‑‑‑Constitutional petition‑‑‑Extension of Valuation List dated 1‑1‑1977 to Karachi Division by virtue of S.8‑A as substituted by Sindh Act VIII of 1987 and demand of tax from petitioner in respect of its properties situated outside Karachi Rating Area‑‑­Validity‑‑‑Section 8‑A as amended by Sindh Act VIII of,1987 had an overriding effect and included a "deeming" clause confirming thereby that Legislature had declared that valuation list prepared and enforced from 1‑1‑1977 would be treated as valid and tax levied, collected or realized under said valuation list would be treated as valid and lawful‑‑­No subordinate Authority had passed any order, which had taken legal effect and in pursuance whereof any legal right had come into existence in favour of petitioner, which was withdrawn‑‑‑No right whatsoever had been created in favour or acquired by petitioner residing outside the Karachi Rating Area‑‑‑Legislature by Sindh Act VIII of 1987 had levied property tax on all properties situated in Karachi Division, and by doing so had not violated any law or judgments of High Court or Supreme Court in respect of other properties situated in the Province of Sindh‑‑­Valuation list in respect of properties situated within the limits of Karachi Rating Area had been declared to be validly prepared and in force from 1‑1‑1977‑‑‑Property owners of Karachi Rating Area could argue that they had a vested right under S.8‑A as amended by Sindh Finance Act, 1977, but persons whose properties were not situated in Karachi Rating Area could not advance such an argument‑‑‑Section 8‑A as added by Sindh Finance Act, 1977 had not conferred upon owners of properties situated outside Karachi Rating Area any kind of vested right or interest under any principle of law‑‑­Legislature was fully empowered to impose property tax retrospectively and the amendment of S.8‑A by Sindh Act VIII of 1987 validating the valuation list from 1‑1‑1977 was intra vires of the Act and the Constitution‑‑‑Properties of petitioner were situated within the limits of Karachi Division‑‑‑Valuation List in respect of properties situated in Rating Area of Karachi Division including those of .the petitioner would fall within purview of S.8‑A as amended by Sindh Act VIII of 1987 and they would be liable to pay property tax thereon from 1‑1‑1977 at prescribed rates.

1986 SCMR 1294; New Electronics (Pvt.) Limited v. The Collector of Customs and 2 others PLD 1994 Kar. 286; The Fecto Cement Ltd. v. Collector of Customs Appraisement, 1994 MLD 1136; PLD 1984 SC 621; PLD 1973 Kar. 360; Al‑Samrez Enterprises v. The Federation of Pakistan 1986 SCMR 1917; Golden Industries Limited v. Province of Sindh and others PLD 1983 Kar. 76; Annoor Textile Mills Limited and another v. The Federation of Pakistan and another PLD 1994 SC 568; Venkataramaiya's Law Lexicon, 1986 Edn., Vol. 4, p.2608 and Pakistan v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 ref.

(d) Fiscal Legislation ‑‑‑

‑‑‑‑Fiscal‑‑‑Imposition of tax with retrospective effect‑‑‑Power to impose a tax and to impose tax retrospectively rests with Legislature, which can exercise such power at any time unless prohibited by the Constitution.

Talmiz S. Burney and Abdul Hadi Farid for Petitioners.

Raja Qureshi, A.‑G., Sindh for Respondents.

Dates of hearing: 7th and 8th December, 2000.

2002 M L D 1632

[Karachi]

Before Mushir Alam, J

AL‑FAROOQ BUILDERS‑‑‑Plaintiff

versus

FEDERATION OF PAKISTAN, CHAMBER OF COMMERCE AND INDUSTRY‑‑‑Respondent

Execution Application No. 108 of 1999 in Suit No. 685 of 1987, decided on 4th September, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXI, Rr.10 & 24‑‑‑Execution of decree‑‑‑Application for ‑‑‑Decree-­holder had submitted that proceedings were stayed since matter was pending before Supreme Court, but Supreme Court having declined leave to appeal to judgment‑debtor, matter finally stood decided and no impediment was left in granting execution application‑‑‑Judgment‑debtor had sought some time to go through order of Supreme Court‑‑‑In absence of any justification to deprive decree‑holder of fruits of decree passed in his favour in a suit pending since long, further extension in time to judgment‑debtor was declined‑‑‑Execution application was allowed.

Samiuddin Sami for the Decree‑Holder.

Khalid Jawaid for the Judgment‑Debtor.

2002 M L D 1636

[Karachi]

Before Wajihuddin Ahmed and Muhammad Roshan Essani, JJ

MUSTAK‑‑‑Petitioner

versus

GOVERNMENT OF PAKISTAN and others‑‑‑Respondents

Petition No. 1805 of 19516, ‑decided on 17th March, 1998.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.1(2)(d)‑‑Accession of State to another State‑‑‑When a State would accede to another State, it was not merely the territories of such State that would accede, but accession would include all that was situated in such territories including its inhabitants.

Wali Muhammad and Hashim Padhiar for Petitioners.

S. Tariq Ali, .Standing Counsel and M. Sarwar Khan, Addl. A.‑G., Sindh for Respondents.

2002 M L D 1648

[Karachi]

Before Mushtaq A. Memon, J

KARACHI METROPOLITAN CORPORATION and others‑‑‑Applicants

versus

SHAFIQ‑UD‑DIN and 150 others‑‑‑Respondents

Civil Miscellaneous Application No 1367 of 1996 in Civil Revision Application No.254 of 1992, decided on 28th February, 1997.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXXIX, Rr.1 & 2(3)‑‑‑Violation of order of interim injunction‑‑­Remedy against‑‑‑Forum to be resorted‑‑‑Original order of interim injunction having been passed by Senior Civil Judge, action for violation of‑that order could be sought by filing application under O. XXXIX, R.2(3), C.P.C. before Senior Civil Judge who had passed that order‑‑­Violation of such order could neither be complained against nor proceeding could be initiated before High Court in exercise of power under O. XXXIX, R.2(3), C.P.C.

1992 SCMR 857 ref.

Manzoor Ahmed for Applicants.

S.A. Ghaffar for Respondents Nos. 1 to 150.

2002 M L D 1655

[Karachi]

Before Saiyed Saeed Ashhad, C. J. and Mushir Alam, J

Messrs FIRST WOMENBANK LIMITED and others‑‑‑Petitioners

versus

JUDGE (BANKING COURT), SINDH HIGH COURT, KARACHI and others ‑‑‑Respondents

Constitutional Petitions Nos.D‑1843 of 1998 and D‑531 of 1999, decided on 10th October, 2001.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Scope‑‑‑Interlocutory order‑‑­When a statue did not provide an appeal against interlocutory order, same could also not be challenged by way of Constitutional petition as same would amount to negate the provisions of the statute‑‑‑Proper course for party in circumstances would be to wait for final order and then file an appeal against same wherein he could also impugn interlocutory order.

Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another 1996 SCMR 1165 and Muhammad Iftikhar Mohmand v. Javed Muhammad and 3 others 1998 SCMR 328 ref.

Rana Azam‑ul‑Hussain Azim for Petitioner (in C. P. No. D‑531 of 1999).

Rizwan Ahmed Siddiqui for Petitioners (in C.P: No.D‑1843 of 1998)

Amir Hani Muslim for Respondent No.2 (in C.P. No.D‑1843 of 1998).

M. Sarwar Khan, Addl. A.‑G. (Sindh).

2002 M L D 1659

[Karachi]

Before S. Zawar Hussain Jafery, J

WASI HAIDER ‑‑‑Applicant

versus

THE STATE‑‑Respondent

Criminal Bail Applications Nos.666 and 572 of 2001, decided on 6th July, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)'‑‑‑Penal Code (XLV of 1860), Ss.409, 420, 468, 471, 477‑A, 109 & 34‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑­Bail, grant of‑‑‑Further inquiry‑‑‑Amount involved in case though was substantial but that fact by itself would be no ground for refusing bail to accused especially when that huge amount was encashed during tenure of other officer‑‑‑Case of accused was identical with case of co‑accused who had been released on bail‑‑‑Rule of consistency demand that bail concession was also granted to accused as bail could not be withheld as a punishment to accused‑‑‑Investigation had already been completed and accused were no, more required for investigation and it was a rule in matter of grant of bail in such cases to grant the bail and to refuse was an exception‑‑‑Case being fit for further inquiry, accused were admitted to bail.

PLD 1971 SC 277; 1972 PCr.LJ 181; 1980 SCMR 142; 2000 YLR 994; 2000 PCr.LJ 730 and 1983 PCr.LJ 2010 ref.

S. Mujahid, Hussain for Applicant (in Cr.B.A. No.512 of 2001).

Shahadat Awan for Applicant (in Cr.B.A. No.666 of 2001).

Sh. Ziauddin Nasir, Standing Counsel for the State.

2002 M L D 1673

[Karachi]

Before Shabbir Ahmed, J

Messrs BAMBINO (PVT.) LTD. through Director‑‑‑Plaintiff

versus

GOVERNMENT OF SINDH through Chief Secretary, and another‑‑‑Defendants

Suit No. 514 and Civil Miscellaneous Application Nos. 2562 and 2910 of 2000, decided on (sic).

(a) Jurisdiction‑‑‑

‑‑‑‑ Ouster of‑‑‑Principles.

Ouster of the jurisdiction can be claimed when impugned order/action is found to be within the four corners of the statute under which it is passed or taken. The provisions contained in Statute ousting the Court of general jurisdiction is to, be construed very strictly and unless case falls within the letter and spirit of the barring provisions it would not be given effect to.

Where the jurisdiction of the Civil Court to examine the validity, of an action or an order of executive authority or a special tribunal is challenged on the ground of ouster of jurisdiction of the Civil Court, it must be shown (a) that the authority or the tribunal was validly constituted under the Act; (b) that the order passed or the action taken by the authority or tribunal was not mala fide; (c) that the order passed or action taken was such which could be passed or taken under the law which conferred exclusive jurisdiction on the authority or tribunal and (d) that in passing the order or taking the action, the principles of natural justice were not violated. Unless all the conditions mentioned above are satisfied, the order or action of the authority or the tribunal would not be immune from being challenged before a Civil Court. As a necessary corollary, it follows that where the authority or the Tribunal acts in violation of the provisions of the statutes which conferred jurisdiction on it or the action or order is in excess or lack of jurisdiction or mala fide or passed in violation of the principles of natural justice, such an order could be challenged before the Civil Court in spite of a provision in the statute barring the jurisdiction of Civil Court.

The ouster of jurisdiction of Civil Court under absolute or conditional bar‑ would not be available, where the order or action of the authority in cases where such authority acts in violation of the provisions of the statute which conferred the jurisdiction on it or the action or order is passed in violation of ‑principles of natural justice or such order has been impugned on the ground of mala fides, such an order could be challenged before the Civil Court in spite of a provision in the statute containing the conditional bar, to examine whether the impugned order passed by authority suffers from any such defect.

Abbasi Cooperative Bank v. Hakeem Hafiz Muhammad Ghaus PLD 1997 SC 3 fol.

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

‑‑‑‑O. VII, R.11‑‑‑Sindh Buildings Control Ordinance (V of 1979), S.20‑A‑‑‑Rejection of plaint‑‑‑Plea of ouster of jurisdiction of Civil Court‑‑‑Where the order or action of the Authority was found to be in violation of the relevant statute which conferred the jurisdiction on the Authority or action or order was passed in violation, of the principles of natural justice or such order or action had been impugned on the ground of mala fides, such an order could be challenged before Civil Court in spite of a provision in the relevant statute containing the institutional bar, to examine whether the impugned order passed by Authority suffered from any such defect and plaint could not be rejected on the plea of bar of jurisdiction in circumstances.

Abbasi Cooperative Bank v. Hakeem Hafiz Muhammad Ghaus PLD 1997 SC 3 ref.

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

‑‑‑‑O. XXXIX, Rr.l & 2‑‑‑Temporary injunction, grant of‑‑?Ingredients‑‑‑Principles.

A party approaching the Court for injunction has to establish (i) a prima facie case, (ii) balance of convenience and (iii) irreparable loss, if injunction is refused. Prima facie case would be spelt out if a serious question of law or fact has been raised in the plaint on which the parties have to go to the trial. In such enquiry, the objection of the defendant even as to maintainability of the suit will not be a proper criterion.

Sui Gas Transmission Co. v. Sui Gas Employee' Union 1977 SCMR 220; Muhammad Matin v. Mrs. Dino Manekji Chinoy PLD 1983 Kar. 387 and S.N. Gupta v. Sadanand Gosh PLD 1960 Dacca 153 ref.

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

‑‑‑‑S.6, Explanation‑‑‑Karachi Building and Town Planning Regulations, Chap.2, Part 11‑‑‑Civil Procedure Code (V of 1908)), O. XXXIX, Rr.1 & 2‑‑‑Addition and alteration proposed to be made by the plaintiffs amounted to construction, as such approval of the plan of said addition and alteration had to be processed in terms of Regulations, which required submission of the application in prescribed form to the Authority through licensed Architect with information and documents including structural design‑‑‑Court, in circumstances, suspended the operation of mandatory injunction subject to the condition to be followed by the plaintiff with reference to the proposed construction and granted the application filed by the plaintiff under O.XXXIX, Rr.1 & 2, C.P.C.

Four Square Enterprises v. Karachi Building Control Authority PLD 2000 Kar. 161; Abdul Rauf v. Abdul Hamid Khan and others PLD 1965 SC 671; Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698; Usman Punjwani v. Government of Sindh 1996 CLC 311; Muhammad Amin v. Karachi Building Control Authority 1992 CLC 691; Asma Builders v. Government of Sindh 1992 CLC 729; Khuda Bux Chandio v. Sattar 1999 MLD 3199; Hakim Bashir Ahmed v. Government of Sindh 1984 CLC 3061; Abbasi Cooperative Bank v. Hakeem Hafiz Muhammad Ghaus PLD 1997 SC 3; Sui Gas Transmission Co. v. Sui Gas Employees' Union 1977 SCMR 220; Muhammad Matin v. Mrs. Dino Manekji Chinoy PLD 1983 Kar. 387; S.N. Gupta v. Sadanand Gosh PLD 1960 Dacca 153; Commissioner of Income‑tax v. Fazlur Rehman PLD 1964 SC 410; Messrs Asma Builders v. Government of Sindh 1993 CLC 326; S.A. Abbasi v. Chairman, District Council, Gulshan-e‑Iqbal PLD 1985 Kar.400 and Excell Builders v. Ardeshir Cowasjee 1999 SCMR 2089 ref.

Rasheed Ahmed Razvi for Plaintiff.

M. Naimur Rehman for Defendants.

2002 M L D 1707

[Karachi]

Before Hamid Ali Mirza and Shabbir Ahmed, JJ

NOOR MUHAMMAD ‑‑‑Petitioner

versus

KARACHI METROPOLITAN CORPORATION‑‑‑Respondent

Constitutional Petition No.602 of 1999, decided on 2nd March, 2000.

Constitution of Pakistan (1973)‑‑‑

‑‑‑Art. 199‑‑‑Allotment of shops‑‑‑Petitioners in their Constitutional petition had stated that they being in possession of respective shops and stalls for the last many years had been selling vegetables and had prayed that Metropolitan Corporation be directed to issue allotment order in their names in respect of shops and stalls‑‑‑No document had been produced by petitioners to show that they were in lawful and authorized occupation of shops and stalls in question‑‑‑Petitioners thus had no legal or vested right for allotment of the same‑‑‑Constitutional petition was dismissed by the High Court with observation that petitioners could approach the Authority which would consider request of petitioners sympathetically.

Qutabuzzaman for Petitioner.

Manzoor Ahmed for KMC.

2002 M L D 1714

[Karachi]

Before S.A. Sarwana, J.

KHAN DIL KHAN CONTRACTOR‑‑‑Applicant

versus

KARACHI METROPOLITAN CORPORATION and others‑‑‑Respondents

Civil Revision Application No. 105 of 2000, decided on 13th June, 2000.

Licence‑‑‑

‑‑‑‑ Termination of licence‑‑‑Order terminating licence to collect parking fee had been challenged by licensee‑‑‑Agreement whereby licence was granted to the licensee had option to terminate contract at any time on written notice of three days in event of failure of licensee to fulfil any condition under agreement‑‑‑Licensee was alleged to have charged Parking Fee at higher rates than was agreed by agreement‑‑Authority, in circumstances, was justified in terminating licence granted to licensee‑‑‑Licence could be revoked by a grantor unless it was coupled with transfer of property and such transfer was in force or licensee acting upon licence had executed work of a permanent character and incurred expenses in execution‑‑‑Such being not the position in the present case licence was rightly terminated by Authority.

Mahmood Habibullah for Applicant.

Manzoor Ahmed.Khan for Respondents Nos. l to 3.

Siddiq Mirza for Respondent No.4.

2002 M L D 1722

[Karachi]

Before Syed Saeed Ashhad, C. J. and Mushir Alam, J

AHMED AZIM‑‑‑Petitioner

versus

PROVINCE OF SINDH and others‑‑‑Respondents

Constitutional Petition No.D‑615 of 2001, decided on 27th September, 2001.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Educational institution‑‑‑Admission in Medical College‑‑‑Medical College where the petitioner/candidate was admitted, subsequently was closed by Government and taking sympathetic view of matter, students who were stranded due to the closure of the College were absorbed in different Medical Colleges, of the Province‑‑‑Petitioner who was absorbed in Government Medical College, claimed to be admitted in another Medical College, but his claim was denied and candidate moved Constitutional petition against the said refusal‑‑‑Validity‑‑‑Petitioner having been absorbed on compassionate consideration after closing of the college, no vested right accrued to him to claim any preference in the nature of absorption in college of his choice‑‑‑No case had been made out for interference in Constitutional jurisdiction of High Court which was a discretionary in nature and was to be exercised with circumspection.

Zahir Marghoob for petitioner.

2002 M L D 1736

[Karachi]

Before Sarmad Jalal Osmany, J

ILYAS and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 132 and 138 of 1999, decided on 8th May, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑S.302/34‑‑‑Criminal Procedure Code (V of 1898), S. 164‑‑­Appreciation of evidence‑‑‑Retracted confession‑‑‑Although a retracted confession can be accepted on the basis of its being true and voluntary, yet it should not be acted upon unless corroborated by same other reliable evidence in material particulars.

Mst. Naseem Akhtar v. The State 1999 SCMR 1744 and. Ch. Muhammad Yakoob v. The State 1992 SCMR 1983 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Appreciation of evidence‑‑‑Conviction of accused was based entirely on their confessions hereby they had admitted to have murdered the deceased which had been subsequently retracted and it was to be examined whether the same could stand the test of independent corroboration‑‑‑Recovery of the blood‑stained gunny bag and the bicycle on the pointation of the accused was not mentioned in their confessional statements‑‑‑No Chemical Report was available on record to show that the stains on the recovered hatchet, rope and dagger were of human blood‑‑‑Confessional statements of accused had been recorded after an unexplained delay of four days‑‑‑Complainant who had resiled from the F.I.R. should have been declared hostile and cross­-examined but it was not done‑‑‑Dead bodies of the deceased were never recovered‑‑‑Confessional statements of accused did not tally with the F.I.R ‑‑Prosecution version was riddled with uncertainties and the confessional statements of accused were not free from doubt‑‑‑Accused were acquitted in circumstances.

Khawand Bux v. The State 1997 PCr.U 280; Habibullah v. The State PLD 1969 SC 127; Munir Mushtaq v. Collector of Customs PLD 1999 SC 1111; Syed Ali Shah alias Shahji v. The State 1993 PCr.U 1118; Mst. Darya Khatoon v. The State 1996 PCr.U 1477; Muhammad Riaz v. The State PLD 1994 Pesh. 102; Mst. Naseem Akhtar v. The State 1999 SCMR 1744; Ch. Muhammad Yakoob v. The State 1992 SCMR 1983; Ahmed Hassan v The State 2001 SCMR 505; Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; The State v. Farman Hussain PLD 1995 SC 1; Darey Khan v. The State 1972 SCMR 578; Haq Nawaz v. The State 2000 SCMR 785; Ghulam Khan v. The State 2001 PCr. LJ 435 and Muhammad Anwar and another v, The State 1999 SCMR 729 ref.

Muhammad Ibrahim Soomro for Appellant (in Cr. A. No. 132 of 1999).

Ali Azhar Tunio, A.A.‑G. for the State (in Cr. A. No.132 of 1999).

Aftab Ahmed Bhutto for Appellant (in Cr. A. No. 138 of 1999).

Ali Azhar Tunio, A.A.‑G. for the State (in Cr. A. No. 138 of 1999)..

Dates of hearing: 30th March and 2nd April, 2001.

2002 M L D 1744

[Karachi]

Before Ghulam Rabbani and Mushir Alam, JJ

Mrs. RUKHSANA SAEED‑‑‑Petitioner

versus

Mrs. FAUZIA NASIM and 2 others‑‑‑Respondents

Constitutional Petition No.692 of 2002. decided on 18th June, 2002.

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

‑‑‑Ss. 16(2)(1) & 2(i)‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Striking off defence of tenant‑‑‑Hiring charges of fixtures/fittings‑‑‑Effect of non‑payment‑‑‑ Tenant having failed to deposit arrears of rent including hiring charges of fixtures as directed by Rent Controller, his defence was struck off‑‑‑Contention of tenant was that hiring charges were not part of the rent, thus, direction for deposit of said charges under S.16(1) of the Ordinance was illegal and non­compliance of such order did not' entail any consequence of default‑‑Validity‑‑Fittings and fixtures were included within the definition of "building"‑‑‑Definition of rent including "such other charges"‑‑‑Such term was wide enough to encompass charges of fixtures and fittings as referred to in definition clause of "building"‑‑‑Leasing out of such fixtures and fittings attached with building was not prohibited by the Ordinance‑‑‑Hiring charges for fixtures and fittings in a rented premises were part of the rent as defined in S.2(i) of the Ordinance‑‑‑Case of tenant was not that such fixtures and fittings had not been provided to him‑‑‑Tenant had turned dishonest while refusing to pay such hiring charges for fixtures and fittings mentioned in hiring agreement duly signed by both the parties‑‑‑Tenant had neither paid hiring charges nor deposited same after the direction given in appeal‑‑‑No misreading or non‑reading of evidence or any error in impugned order was found‑‑‑High Court dismissed the Constitutional petition of tenant in limine.

Muhammad Ismail v. Abdul Habib PLD 1993 Kar. 181; Tahir Hussain Gardezi v. Abid Hussain Qureshi 1986 MLD 2980; Dr. Riaz Ahmed v. Sabir Ali Hojani PLD 1994 Kar. 446; Bashir Ahmed v Mst. Zubaida Khatoon 1983 CLC 390 and International Fisheries Pakistan Limited v. M/s. Standard Fisheries Corporation 1983 CLC 394 ref.

Ghulam Muhammad Ebrahim for Petitioner.

Nemo for Respondents.

Date of hearing: 7th May, 2002.

2002 M L D 1750

[Karachi]

Before Ata‑ur‑Rehman, J

Mrs. AQEELA BANO and 3 others‑‑Plaintiffs

Versus

GOVERNMENT OF SINDH and 2 others‑‑‑Defendants

Suit No. 261 of 1991, decided on 17th May, 2002.

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

‑‑‑‑S. 1‑‑‑Fatal accident‑‑‑Compensation, determination of-‑‑Two Kundimen' who on directions of their superiors went inside the manhole of Ejector Machine to clean the same having not come out, deceased who at the relevant time' was working as Pump Driver went inside the manhole where he succumhed to poisonous fume like twoKundimen' and died‑‑‑Claim of plaintiffs who were legal heirs of deceased was that deceased died during discharge of his duties and his death was attributed to negligence of defendants‑‑‑Deceased at the time of accident was working as Pump Driver and not a Kundiman' and his duty was not to go inside the manhole and clean the same as deceased was not subordinate to the Department under whichKundimen' were working‑‑Deceased though had volunteered himself to go inside the manhole in presence of Supervisory Staff of the Department but he was not a professional 'Kundiman' and had no special knowledge about the dangers of manhole‑‑‑No one from the Staff of the Department took any effort to either stop the deceased from going inside or to provide him any safety measures before he entered into manhole‑‑‑Staff on duty present there should have either stopped the deceased from going inside or provided him sufficient' protective safety measures, but no such effort was made by any of the Staff members‑‑‑‑Staff of the Department in circumstances, was negligent and death of deceased occurred due to negligence of the staff‑‑‑Suit which was filed in time was decreed and amount of compensation was determined taking into consideration the average life span, of the deceased and his expected loss of pecuniary benefits.

Farazuddin and another v. Pakistan Navy through Commanding Officer and another 1991 CLC 1866; Muhammad Hanif v. K.T.C. 2002 CLC 765 and Baker and another v. T.E. Hopkins and Son Ltd. (1959)3 All ER 225 ref.

(b) Fatal Accidents Act (XIII of 1855)‑‑‑

‑‑‑‑S.1‑‑‑Fatal accident‑‑‑Suit for compensation‑‑‑Rescue doctrine‑‑­Concept‑‑‑Rescue doctrine was an extension of doctrine of foresee-­ability‑‑‑Defendant must foresee that if: his negligent act placed an injured person in a perilous‑ position or imminent danger, it was reasonable to expect that others would come to the, aid of injured person‑‑‑If any of rescuers was injured in process of giving such aid, injury to such rescuer could be considered as consequential in the sense that defendant's negligence was proximate cause not only of victim's 'injuries, but also of injuries to the rescuer.

(c) Fatal Accidents Act (XIII of 1855)‑‑‑

‑‑‑‑S. 1‑‑‑Fatal accident‑‑‑Suit for compensation‑ ‑‑Ex gratia payment whether bar for filing a suit‑‑After incident in result of which' deceased died, some: amount was paid. by defendants to heirs of deceased on humanitarian grounds and defendants also provided a job to the son of deceased‑‑‑Such ex gratia payment would not be a bar for filing suit under provisions of Fatal Accidents Act," 1855 which contemplated liability on determination of negligence; default and wrongful act on part of wrongdoer‑‑‑Amount paid on humanitarian grounds, however, was to deducted from gross amount assessed‑‑Likewise a ,fob provided to son of deceased by defendants would not debar plaintiffs/legal heirs of deceased from claiming compensation ,for loss caused to plaintiffs on account of unnatural death of deceased.

Nasir Maqsood for Plaintiffs.

Nemo for Defendant No. 1.

Abdul Karim Khan for Defendants Nos. 2 and 3.

2002 M L D 1764

[Karachi]

Before Ata‑ur‑Rehman, J

YOUSUF MASIH and another‑‑‑Plaintiffs

versus

KARACHI TRANSPORT CORPORATION through Chairman, Managing Director and 2 others‑‑‑Defendants

Suit No. 1169 of 1990, decided on 19th June 2002.

Fatal Accidents Act (XIII of 1855)‑‑‑

‑‑‑‑S.1‑‑‑Fatal accident‑‑‑Suit for recovery of amount of compensation‑‑­Evidence of eye‑witness, whose presence at the spot at the time of accident had not been challenged, had fully established that while bus driven by the defendant was in stationary condition at the bus stop, deceased attempted to board the bus, but while deceased was still managing to catch hold of iron handle and his one foot was on board and other on road, conductor of bus directed the driver to go ahead and driver without carefully ensuring that deceased and other passengers had safely boarded, all of a sudden started the bus and accelerated same and due to jerk the deceased fell down from the bus and was fatally crushed under wheels thereof‑‑‑Defendants had failed to prove contributory negligence and carelessness of deceased as evidence on record had proved that deceased was not at all wrong in boarding the bus‑‑‑Death of deceased, in circumstances, was caused due to rash and negligent act of defendant driver and nothing was on record to establish that accident took place due to negligence on part of the deceased‑‑­Defendants, in circumstances., Were jointly and severally liable for damages and pecuniary loss caused to plaintiffs/legal heirs of deceased as beneficiaries under Fatal Accidents Act, 1855‑‑‑Amount of compensation payable to plaintiffs due to death of deceased, was assessed keeping in view average age of deceased and 'his expected earning capacity‑‑‑Suit was decreed accordingly.

Mst. Sakina v. NLC 1995 MLD 633; Muhammad Moosa v. KW&SB 1997 CLC 925; KW&SB v. Moosa 2001 CLC 221 and KW&SB v. Mairajuddin 2000 SCMR 275 ref.

Nasir Maqsood for Plaintiff.

Ch. Muhammad Iqbal, A.A.‑G. for Defendants.

2002 M L D 1783

[Karachi]

Before Anwar Zaheer Jamali, J

AHMED NAWAZ and 4 others‑‑‑Petitioners

versus

ABDUL KHALIQUE and 13 others‑‑‑Respondents

Civil Revision Application No. 48 of 2001, decided on 8th July, 2002.

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

‑‑‑‑Ss. 15, 16, t7, 18, 19 & 20‑‑‑Territorial jurisdiction of Courts‑‑­Provisions of S.16 and S.20, C.P.C.‑‑‑Scope‑‑‑Subject to pecuniary or other limitation prescribed by any law suit for determination of any right to or interest in immovable property is to be instituted under S.16(d), C.P.C. within the territorial jurisdiction of the Court where the immovable property is situated‑‑‑For the purpose of jurisdiction S.20, C.P.C. is only applicable, subject to the limitations as prescribed in the preceding Ss.15 to 19, C.P.C. which relate to place of suing in civil suits.

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

‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), Ss. 16 & 20‑‑‑Suit for declaration‑‑‑ Territorial Jurisdiction of Courts‑‑‑Dispute related to supply of water irrigating the lands of plaintiffs‑‑‑Lands of plaintiffs were situated at place `TM' while the suit was filed at place ' TA'‑‑­Validity‑‑‑Supply of water agitated in the suit emanated from the lands which were to be irrigated from such water, therefore, it was relevant that the Trial Court should see where such lands were situated‑‑­Agricultural lands of plaintiffs and the watercourse regarding which the dispute had been agitated were situated beyond the jurisdiction of Court at place 'TA'‑‑‑Order with reference to which declaration had been sought was passed by the authority located at place ' H'‑‑‑Court at place ' TA' had no jurisdiction in the matter.

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

‑‑‑‑O.VII, Rr. 10 & 11‑‑‑Provisions of O.VII, Rr. 10 & 11, C.P.C.‑‑­Applicability‑‑‑ Principles‑‑‑For examining the applicability of O.VII, Rr.10 & 11, C.P.C. averments made in the plaint were to be taken as correct‑‑‑Reading of plaint for the purpose of applicability of O.VII, R.10 or 11, C.P.C. Should not be formal in nature but it should be meaningful, practical and realistic.

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

‑‑‑‑S.20‑‑‑Term `cause of action'‑‑‑Connotation‑‑‑Term 'cause of action' as used in S.20, C.P.C. with reference to the jurisdiction of Court relates to the facts or allegations giving rise to a claim or infringement of some right of a party and not to a notional or imaginary assertion in that context.

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

‑‑‑‑Ss 16, 20, 115 & O.VII, 11, R.10‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Plaint, return of‑‑ ‑Territorial jurisdiction‑‑‑Accrual of cause of action‑‑‑Dispute related to supply of water irrigating the lands of plaintiffs‑‑‑Lands of plaintiffs were situated at place 'TM' while the suit was filed at place 'TA' on the ground that the order which was subject­ matter of the suit was communicated to the plaintiffs at place 'TA', therefore, the Courts at place TA had the jurisdiction‑‑‑Trial Court returned the plaint under O.VII, R.10, C.P.C. to the plaintiffs for filing the same at proper place‑‑‑Order of the Trial Court was set aside by the Appellate Court and the case was remanded to the Trial Court for decision afresh‑‑‑Validity‑‑‑In the present case, mere formal statement of plaintiffs with reference to the act of the official informing them about the order passed by the authority had not given any cause of action to them within the jurisdiction of Civil Court‑‑‑Appellate Court while passing the order against the defendants exceeded its jurisdiction and acted illegally with material irregularity‑‑‑High Court in exercise of revisional jurisdiction under S.115, C.P.C. set aside the order passed by the Appellate Court and restored that of the Trial Court‑ ‑‑Revision was allowed in circumstances.

Muhammad Jewan and another v. Syed Abdul Qasim and 3 others 1979 CLC 186; Malik Khizar Hayat Khan v. Punjab Province PLD 1955 Lah. 88; Saheb an through Legal Heirs v. Muhammad Pannah PLD 1994 SC 162; Faqir Muhammad v. Pakistan through Secretary, Ministry of Interio and Kashmir Affairs Division, Islamabad 2000 SCMR 1312; Sardar Muhammad Sarwar Khan v. Shaukat Zaman Khan 1999 CLC 954; Miss S.K. Jan v. Delta Shipping (Pvt.) Ltd. and others 1998 MLD 1551; Aga Mothers Shah v. Baluchistan through the Secretary to Government and others PLD 1982 Quetta 84 and Sardar Muhammad Sarwar Khan v., Azad Government of the State of Jammu and Kashmir through Chief Secretary and 2 others 1986 CLC 2173 ref.

Naimatullah Soomro and Thakur Das for Applicant.

Hassan Mehmood Baig for Respondents Nos. l to 6.

Rasheed Ahmed Qureshi, Asstt. A.‑G. for Respondents Nos.7 to 13.

Abdul Jabbar Khaskheli for Respondent No. 14.

Date of hearing: 8th July, 2002.

2002 M L D 1790

[Karachi]

Before S. Ahmed Sarwana, J

MEHMOOD HUSSAIN and others‑‑‑Applicants

versus

L1AQUAT HUSSAIN and others‑‑‑Respondents

Civil Transfer Applications Nos.3, 4 and 5 of 2002, decided on 4th July, 2002.

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

‑‑‑‑SS.21‑A & 21[as inserted by Sindh Rented Premises (Amendment) Ordinance(XIV of 2001)]‑‑‑West Pakistan Civil Courts Ordinance (II of 1962), S.3‑‑‑Civil Procedure Code (V of 1908), S.24‑‑‑Appeal‑‑‑Forum‑­‑Person aggrieved by an order of the Rent Controller instead of filing an appeal in the High Court was now required to prefer appeal before the District Judge in view of S.21‑A, Sindh Rented Premises Ordinance, 1979‑‑‑All such.appeals pending in the High Court immediately before the enforcement of S.21‑A by Sindh Rented Premises (Amendment) Ordinance, 2001, stood transferred to the District Judge jurisdiction as provided in S.21(1) of the Sindh Rented Premises Ordinance, 1979 for disposal of the same‑‑‑Provision of S.21(1‑A) of the Sindh Rented Premises Ordinance (as amended) now empowers the District Judge to refer an appeal to the Additional District Judge for disposal and thus applies to all appeals whether transferred from the High Court to the District Judge or preferred by an aggrieved party before the District Judge under S.21(1) of the Ordinance and in both the cases the District Judge has the power and authority to hear the appeal himself or refer the same for disposal to an Additional District Judge as provided by S.21(lA) of the Ordinance‑‑‑Principles.

Under the original section 20 of Sindh Rented Premises Ordinance, 1979 any party aggrieved by a final order made by the Controller was entitled to prefer an appeal to the High Court. On 17‑4‑2001 the said Ordinance was amended by the Sindh Rented Premises (Amendment) Ordinance (XIV of 2001) whereby several sections in the Ordinance were amended and an additional section 21‑A was inserted therein.

After the aforesaid amendments, any person aggrieved by an order of the Rent Controller instead of filing an appeal in the High Court is now required to prefer the same before the District Judge having jurisdiction in the area where the premises in relation to which the order is passed is situated. Pursuant to the insertion of section 21‑A all appeals which had been filed under the Ordinance and were pending in the High Court immediately before the promulgation of the Sindh Rented Premises (Amendment) Ordinance, 2001, ‑stood transferred to the District Judge having jurisdiction as provided in subsection (1) of section 21 for disposal of the same.

Section 3 of the Sindh Civil Courts Ordinance, 1962 specifies that besides the Court of Small Causes established under the Provincial Small Causes Courts Act, 1887 and the Courts established under any other enactment, there shall be the following classes of Civil Courts, namely:

(a) The Court of the District Judge, (b) The Court of Additional District Judge; and

(c) The Court of the Civil Judge.

The amendments made in 2001 in section 21 of Sindh Rented Premises Ordinance, 1979, now empower the District Judge to assign matters to any Additional District Judge without any limitation or condition.

No doubt, the Rent Controller under the provisions of Sindh Rented Premises Ordinance, 1979, does not enjoy the same powers as that of a Civil Court; however, it has been held by the Honourable Supreme Court that although the provisions of C.P.C. are not strictly applicable to the proceedings conducted by the Rent Controller, the principles of C.P.C. are applicable to the proceedings under the Sindh Rented Premises Ordinance, 1979.

In view of the provision of section 24, C.P.C. it can be argued that under the general principles and the spirit of section 24, C.P.C., to facilitate smooth working and expeditious disposal of cases, the District Judge is empowered to withdraw any appeal or other proceedings perusing in any Court subordinate to it and transfer the same for disposal to any Court subordinate to it which includes the Courts of Additional District Judges who have been declared to be subordinate to him. It would be appropriate to refer here to the Sindh Civil Courts Ordinance, 1962 which was promulgated to consolidate the law relating to, inter alia, the creation and working of the various Civil Courts existing in the Province and the powers to be exercised by them.

In view of the provisions of section 6 of the Sindh Civil Courts Ordinance, 1962 it is clear that the District Judge under the provisions of the Sindh Civil Courts Ordinance, 1962, is empowered to assign his functions and powers to Additional District Judge(s) and the latter in the discharge of those functions have the same powers as those of the District Judge. It is also indisputable that transferring or making over a case to the Additional District Judge by the District Judge amounts to an assignment and any order passed by the Additional District Judge in the matter assigned to him would be competent in law. Therefore, the transfer of the Rent Appeal by the District Judge to the Additional District Judge, in the present case was competent in law and the order passed by the latter is valid and enforceable as an order passed by the District Judge himself.

Where specific provision is provided under a self‑contained statute for transfer of cases, resort must be made only to such remedy. Specific provision relating to transfer of appeals by the District Judge to the Additional District Judge is provided in section 21(1‑A), Sindh Rented Premises Ordinance, 1979, as amended by the 2001 amendment. It is not denied that several amendments were made in the Sindh Rented Premises Ordinance, 1979 which included the amendments of section 21 by addition of several subsections and insertion of section 21‑A. Both these changes were made simultaneously by a single stroke and form part of the said Ordinance as it exists today.

It is an established principle of interpretation that words should be given their plain ordinary dictionary meaning and the provisions of a statute must be interpreted in a manner to bring harmony between its different sections and avoid any inconsistency between them if such appear to exist. Both, the newly‑inserted section 21‑A and the Amendments made by addition of five subsections in section 21 i.e and subsections (1‑A) to (1‑F) cannot be read in isolation but must be read together and given their ordinary dictionary meaning. If this is done, it is crystal clear that the District Judge has the power to assign or transfer any appeal before him to the Additional District Judge under subsection (1‑A).

It could not have been the intention of the Legislature to provide one mode for disposal of the appeals transferred from the High Court to the District Judge as appellate authority and another mode to decide the appeals filed before him as an appellate authority after the amendment where the nature of the appeals in both situations is the same and the power of the appellate authority i.e. the District Judge and the Additional District Judge to decide the appeal is also the same.

Section 21(1‑A) relating to the power of the District Judge to refer an appeal to the Additional District Judge for disposal is a part of Sindh Rented Premises Ordinance, 1979 alongwith section 21‑A transferring the pending appeals to the District Judge having jurisdiction in the matter. Following the principle of simple grammatical interpretation, it is obvious that section 21(1‑A) applies to all appeals whether transferred from the High Court to the District Judge or preferred by an aggrieved party before the District Judge under section 21(1). In both cases, the District Judge has the power and authority to hear the appeal himself or refer it for disposal to an Additional District Judge as permitted by section 21(1‑A).

The Legislature intentionally empowered the District Judge under section 21(1‑A) to transfer the cases to the Additional District Judge to facilitate smooth and efficient working of the Courts and expeditious disposal of the Rent Appeals which is the requirement of the day.

The power of the District Judge to transfer and assign cases to Additional District Judge is well settled for over 80 years by virtue of various statutes referred to above including the Sindh Civil Courts Ordinance, 1962 generally and section 21(1‑A), Sindh Rented Premises Ordinance, 1979 specially.

Khadim Mohyuddin and another v. Ch. Rehmat Ali Nagra and another PLD 1956 SC 459 distinguished.

Zaman Cement Company (Pvt.) Ltd. v. ‑C.B.R. 2002 SCMR 312; 2002. SCMR 323; Federation of Pakistan v., Ammar Textile Mills (Pvt.) Ltd. and others 2002 SCMR 510; PLD 2001 Kar. 60; Bahari Lal­Bulaki Ram v. Jundan Lal and another AIR 1922 PC 361 and Mst. Malookan v. Sher Muhammad and 2 others PLD 1977 Lah.718 ref.

(b) Interpretation of statutes‑‑‑

‑‑‑‑ Inconsistency in the statutes‑‑‑Words should be given their plain dictionary meaning and the provisions of a statute must be interpreted in a manner to bring harmony between its different sections and avoid any inconsistency between them if such appear to exist.

A.M. Mubeen for Applicant.

Ghulam Dastgir A. Shahani, Addl. A.‑G.

Date of hearing: 14th May, 2002.

2002 M L D 1817

[Karachi]

Before S. Ahmed Sarwana, J

Raja AMANULLAH and another‑‑‑Applicants

versus

THF STATE ‑‑‑ Respondent

Criminal Bail Application No. 138 of 2002, decided on 26th April, 2002.

(a) Juvenile Justice System Ordinance (XXII of 2000)‑‑‑

‑‑‑‑Preamble, Ss‑2(b), 3, 5, 7, 8 & 10‑‑‑Object of Juvenile Justice System Ordinance, 2000‑‑‑Juvenile Justice System Ordinance, 2000 had been promulgated to provide for protection to children involved in criminal litigation and their rehabilitation in the society‑‑‑Juvenile Justice System Ordinance, 2000 had to be given a liberal interpretation to achieve its objects and to create conditions and environment so that children below the age of '18 years involved in criminal litigation could be provided an opportunity to become useful and respectable members of society‑‑‑Person below 18 years of age would be entitled to benefits and privileges under Juvenile Justice‑System Ordinance, 2000‑‑‑No child would be charged with or tried for an offence together with an adult and child would have right of legal assistance at the expense of State‑‑­Proceedings of Juvenile Court would not be published through print media‑‑‑Child in ordinary course would be released on bail or placed under custody of a Probation Officer and no punishment of death would be awarded to him and he would not be handcuffed, put in fetters or given any corporeal punishment.

Siraj Din v. Saghreeruddin and another 1970 SCMR 30 ref.

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

‑‑‑ S. 497, first proviso‑‑‑Penal Code (XLV of 1860), Ss.302/337‑A (i)(iii)/337‑F(ii)/114/147/148‑‑‑Juvenile Justice System Ordinance (XXII of 2000), Ss.2(b) & 10‑‑‑Grant of bail to child‑‑‑Medical certificate issued by Civil Surgeon showed that on the date when offence was committed, age of accused was below 18 years‑‑‑Accused who at the time of commission of offence had not attained age of 18 .years. Were children and, were entitled to grant of bail‑‑‑Bail was granted to accused in circumstances.

Manzoor Ahmad Junejo, for Applicants.

Muhammad Iqbal Menton for the State.

Date of hearing: 26th April, 2002.

2002 M L D 1835

[Karachi]

Before Muhammad Moosa K. Leghari, 3

IQBAL AKBAR and 3 others‑‑‑Plaintiffs

versus

PROVINCE OF SINDH and 3 others‑‑‑Defendants

Suit No. 1390, Civil Miscellaneous Applications Nos.7586, 9178 and 8032 of 2001, decided on 1st April, 2002.

(a) Public administration‑‑‑

‑‑‑‑ Good governance‑Principle ‑‑‑All the State transactions, contracts and other acts involving public exchequer must be transparent.

(b) Agricultural Produce Markets Act (V of 1939)‑‑‑

‑‑‑‑S. 18‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Rejection of plaint‑‑‑Failure to disclose cause of action‑‑‑Title on the basis of agreement to sell‑‑‑Suit‑land was initially allotted in open auction for construction of cold storage‑‑­Without having the allotment formally cancelled, agreement to sell was executed in favour of plaintiff regarding the same plot‑‑‑Plaintiff sought declaration of title on the basis of the agreement to sell‑‑‑Contention of he defendants was that the agreement was not executed in accordance with the provisions contained in S.18(1) of Agricultural Produce Markets Act, 1939, therefore, the plaint was liable to be rejected ‑‑‑Validity‑‑­Agreement having not been signed by the persons named in S.18(1) of Agricultural Produce Markets Act, 1939, such agreement was not binding on the Market Committee as provided under S.18(2) of Agricultural Produce Markets Act, 1939‑‑‑Competent Authority was empowered to revoke the agreement and cancel the allotment‑‑‑Merely because the plaintiff made payment of certain amount did not confer any right upon him over the property‑‑‑On the basis of agreement to sell, provisions of S.42 of Specific Relief Act, 1877, could not be invoked in respect of title in immovable property, as the same did not confer any title in suit property in favour of plaintiff‑‑‑Plaint, in the present case, did not disclose a cause of action‑‑‑‑Plaint was rejected in circumstances.

Burmah Eastern Ltd. v. Hurmah Eastern Employees' Union and others PLD 1967 Dacca 190; 1996 MLD 1937; 2001. SCMR 953; 2000 CLC 1535; PLD 2001 Lah. 418 and Mst. Khadija Karim v. Zia‑ur-­Rehman Khanzada and 7 others PLD 1999 Kar. 223 ref.

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

‑‑‑‑S. 42‑‑‑Declaration, grant of‑‑‑Pre‑conditions‑‑‑In order to succeed under the provisions of S.42 of Specific Relief Act, 1877, plaintiff must show that he is entitled to legal gain or to any right to any property individually at the time of initiating the action.

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

(d) Illegal order‑‑‑

‑‑‑‑ Perpetual right‑‑‑Scope‑‑‑If the order is illegal then perpetual right cannot be gained on the basis of such illegal order.

Engineer‑in‑Chief through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 ref.

(e) General Clauses Act (X of 1897)‑‑‑

‑‑‑‑S. 21‑‑‑Locus poenitentiae, principle of‑‑‑Connotation‑‑‑Locus poenitentiae is the power of receding till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and past and closed transaction.

Abdul Haque Indhar and others v. Province of Sindh and 3 others 2000 SCMR 907 ref.

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

‑‑‑‑O.VII, R.11‑‑‑Rejection of plaint‑‑‑Scope‑‑‑For rejection of plaint, normally statements made therein or the document on which the suit is based can be taken recourse to‑‑‑Provisions of O.VII,‑R.11, C.P.C. are not exhaustive of the situations in which plaint be rejected.

Muhammad Akhtar's case 1981 SCMR 878 and Nazeer Ahmed and others v. Ghulam Mehdi and others 1988 SCMR 824 ref.

(g) Locus poenitentiae‑‑‑

‑‑‑‑Principle of‑‑‑Connotation.

Abdul Haque Indhar and others v. Province of Sindh and 3 others 2000 SCMR 907 ref.

Khawaja Shamsul Islam for Plaintiff.

Ch. Muhammad Rafiq Rajorvi, Addl. A.‑G. for Defendant No. 1.

Aleem Akbar Shaikh for Defendant No.2.

Imran Ahmed for Defendant No.4.

Date of hearing: 21st March, 2002.

2002 M L D 1853

[Karachi]

Before Faiz Muhammad Qureshi and Sarmad Jalal Osmany, JJ

STATE through Advocate‑General, Sindh‑‑‑Appellant

versus

MUHAMMAD ASGHAR and 2 others‑‑‑Respondents

Special Anti‑Terrorism Acquittal Appeal No. 169 of 1999, decided on 3rd August, 2001.

(a) Anti‑Terrorism Act (XXVII of 1997)‑‑‑

‑‑‑‑S.25(4)‑‑‑Penal Code (XLV of 1860), S.365‑A‑‑‑Appeal against acquittal‑‑‑Inherent discrepancies in evidence of prosecution witnesses‑‑­Complainant, in cross‑examination had admitted that F.I.R. was registered after arrest of accused and recoveries effected, whereas claim of prosecution was that F.I.R. was registered 45 minutes after occurrence‑‑‑Spot investigation, in view of admission of complainant, was fatal for prosecution‑‑‑Complainant had also admitted in cross-­examination that he knew the co‑accused since 3/4 years, but he had not mentioned names of accused in F.I.R.‑‑‑Two things were overlapping from such admission of complainant; firstly that either occurrence had not taken place in the manner as narrated by complainant and secondly that something was being suppressed by complainant‑‑‑Evidence of witnesses who were brothers, had shown that they had not spoken the truth before Trial Court and their evidence was not inspiring confidence‑‑‑Prosecution had failed to prove factor of ransom‑‑‑Recovery was also doubtful and identification of accused was not arranged‑‑­Conduct of complainant appeared to be dubious‑‑‑In absence of any infirmity in judgment of Trial Court whereby accused were acquitted, judgment of Trial Court could not be interfered with in appeal.

1979 SCMR 214‑215 ref.

(b) Criminal trial----

‑‑‑‑Witness‑‑‑Appreciation of evidence‑‑‑Basic requirement before Trial Court was to see whether witness was honest or dishonest‑‑‑Not a fundamental requirement on part of Trial Court to see whether witnesses were interested, disinterested or hostile.

Habib Ahmed, Asstt. A.‑G. for Appellant.

Saathi M. Ishaque for Respondents.

Date of hearing: 1st August, 2001.

2002 M L D 1856

[Karachi]

Before Muhammad Afzal Soomro, J

MUHAMMAD IQBAL and others‑‑‑Petitioners

versus

KARACHI METROPOLITAN CORPORATION and another‑‑‑Respondent

Revision Application No.25 of 2002, heard on 24th May, 2002

Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 5‑‑‑Civil Procedure 'Code (V of 1908), S.115 ‑‑‑ Condonation of delay‑‑‑ Time‑barred appeal‑‑‑Delay caused in processing the case by Government officials‑‑‑Suit was decreed against Metropolitan Corporation by Trial Court on 30‑4‑2001 and the Corporation filed appeal before Appellate Court on 23‑10‑2001 against the judgment and decree‑‑‑Corporation applied for certified copies six days after the judgment and decree was passed by the Trial Court‑‑‑Costs of fee for attested copies were estimated after about 67 days and the same were deposited on the same day but got delivery of the copies on 22‑8‑2001‑­Appeal was delayed by 67 days and Corporation had filed application under S.5 of Limitation Act, 1908 for condonation of delay‑‑‑Application, was allowed by Appellate Court and the delay in filing of appeal was condoned‑‑‑ Validity‑‑‑Corporation failed to explain on record for the period, which was consumed to get the fees estimated as well as filing of application for certified copy after' six days‑‑‑High Court deprecated practice of Government departments to take the Court matters lightly‑‑­Delay in filing appeals or petitions save in exceptional cases should not be lightly condoned for a valuable right, accrued to the other party of which that party could not be deprived except for very substantial reasons‑‑‑To allow Departments of Government exception from this rule would be placing a premium on the negligence and want of proper diligence in public offices‑‑‑Corporation had deliberately and wilfully did not file the appeal in time though they had every opportunity to perform; their duty arid the time was within their control‑‑‑High Court in exercise of revisional jurisdiction under S.115, C.P.C. set aside the order passed by the Appellate Court and maintained the judgment and decree passed by the Trial Court‑‑‑Revision was allowed in circumstances.

Chief Settlement and Rehabilitation Commissioner and another v. Ghulam Gaus 1974 SCMR 38; Commissioner of Income‑tax v. Rais Pir Ahmed Khan 1981 SCMR 37; Azad Government of the State of Jammu and Kashmir v. Ch. Muhammad Latif PLD 1983 SC (AJ&K) 70; Saleh Shah v. The Sindh Industrial Trading Estates Limited and others PLD 1962 (W.P.) Karachi 608; Siraj Din and another v. Muhammad Ishaq 1981 CLC 1740 and Muhammad Dawood and others v. The State 1986 SCMR 536 ref.

Riaz Kadir Brohi for Applicants.

Tahawwar Ali Khan for Respondents

Date of hearing: 24th May, 2002.

2002 M L D 1867

[Karachi]

Before Wahid Bux Brohi, J

MITHAL and others ‑‑‑ Appellants

versus

THE STATE‑‑‑Respondent

Criminal Jail Appeal No.52 of 2000, decided on 8th April, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Ocular evidence was found to be strong enough to support case of prosecution‑‑‑Simple story had been given by prosecution witnesses in few words unmistakably and all prosecution witnesses who were extensively cross‑examined had not shown any discrepancy in their evidence‑‑‑No reason appears to discard their testimonies‑‑‑Version of prosecution witnesses was corroborated by evidence of recovery of blood‑stained earth and presence of dead bodies which were secured by Investigating Officer soon after lodging of F. I. R. ‑‑‑Testimonies of prosecution witnesses were further supported by medical evidence‑‑Timings, of death as given by Medical Officer who conducted post‑mortem examination of dead bodies also conformed to prosecution story thereby corroborating testimonies of eye‑witnesses‑‑­Judicial confession recorded by Magistrate on same day without violating rules relating to recording of confession, seemed to be voluntary and true which could be accepted in its entirety‑‑‑Maker of judicial confession had wholly inculpated himself‑‑‑Confessional statement could not be held to be untrue as long it did not display any version exculpating the maker thereof‑‑‑Merely because prosecution witnesses had seen accused at time of first incident would not fast any doubt on truth of judicial confession‑‑‑Judicial confession was true and‑ no reasonable ground existed to disbelieve the same‑‑‑Recovery of crime empty and gun, was meaningless as no report of Ballistic Expert had been placed on record‑‑­Chemical Examiner's Report had supported case of prosecution‑‑­Evidence of extra judicial confession had also come on ‑ record‑‑­Conviction recorded by Trial Court against accused, could be maintained, in circumstances‑‑‑Presence of co‑accused though was mentioned by prosecution witnesses, but no role of making a fire even in air had been assigned to him‑‑‑Case of slight doubt having been made out against the co‑accused, he was acquitted extending him benefit of doubt.

Appellants in person.

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

Date of hearing: 8th April, 2002.

2002 M L D 1873

[Karachi]

Before Muhammad Roshan Essani and S.A. Rabbani, JJ

NADIR KHAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Special Anti‑Terrorism Appeal 55 of 2000 and Special Anti‑Terrorism Jail Appeal No. 16 of 2001, decided on 22nd August, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 342, 364(2) & 537‑‑Penal Code (XLV of 1860), Ss.364‑A & 377‑‑‑Offence of Zina (Enforcement of Hudoodj Ordinance (VII of 1979), S.12‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑Statement under S.342, Cr.P.C. not bearing certificate of Trial Judge ‑‑‑Effect‑‑­Record had shown that statements of accused under S.342, Cr.P.C. did not bear certificates of Trial Judge in his own hand which was mandatory requirement under S.364(2), Cr.P.C. and that defect was not curable under S.537, Cr.P.C.‑‑‑Every incriminating piece of evidence must be put to accused while recording his statement under S.342, Cr.P.C.‑‑‑No questions with regard to medical evidence as well as Chemical Analyser's Report, were put to accused‑‑‑No reply to certain questions in statements of accused were recorded by Trial Court and even no reason or non‑recording the same had been assigned‑‑‑Column relating to age of accused in statement under S.342, Cr.P.C. had been left blank by Trial Court which had shown that no question was asked by Trial Court to accused with regard to his age ‑‑‑Judgment passed by Trial Court in view of peculiar facts and circumstances of case, was set aside and case was remanded to Trial Court for proceedings with the same afresh from the stage of statement of accused under S.342, Cr.P.C. in accordance with law.

Anwar Hussain for Appellant (in Special A.T.A. No. 55 of 2000).

Habib Ahmed, Asstt. A.‑G., Sindh for the State (in Special A.T.A. No. 55 of 2000).

Superintendent, Central Prison; Karachi for Appellant (in Special A.T. Jail Appeal No. 16 of 2001).

Habib Ahmed, Asstt. A.‑G., Sindh for the State (in Special A.T. Jail Appeal No. 16 of 2001).

Date of hearing: 22nd August, 2001.

2002 M L D 1880

[Karachi]

Before Muhammad Roshan Essani and M. Mujeebullah Siddiqui, JJ

Messrs ALLIED BANK OF PAKISTAN‑‑‑Petitioner

versus

AHMED IBRAHIM and others‑‑‑Respondents

Criminal Revision No. 135 of 1999, decided on 26th April, 2002.

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

‑‑‑‑Ss. 200, 202, 203 & 204‑‑‑Penal Code (XLV of 1860), Ss.406/409/109/34‑‑‑Dismissal of complaint‑‑ ‑Complaint under Ss.406/409/109/34, P.P.C. against accused‑‑‑ Court after recording statement of complainant under S.200, Cr.P.C. ordered process against two of the accused under S.204, Cr.P.C., but dismissed complaint against third accused under S.203, Cr.P.C. although he was nominated in the complaint‑‑‑Trial Court passed order without recording evidence as provided under S.202, Cr.P.C.‑‑‑Accused, at preliminary stage of inquiry, had no locus standi to participate in proceedings.‑‑‑ Procedure adopted by Trial Court allowing accused to participate in proceedings was contrary to law‑‑‑Procedure for dealing with complaint was that the Court, on receiving a complaint took cognizance of offence and after examining complainant upon oath, if it was satisfied that a prima facie case was made out, it issued process under S.204, Cr.P.C. against the accused‑‑‑If Court found that no prima facie case had been made out. Court could dismiss the complaint under S.203, Cr.P.C.‑‑‑Preliminary inquiry could only be ordered when Court, after recording statement of complainant upon oath, deemed it necessary‑‑‑Court, if after inquiry was satisfied that a prima facie case had been made out against accused, it could issue process otherwise would dismiss the complaint‑‑‑Sole satisfaction of Court taking cognizance of matter upon complaint was the need and it was not mandatory for Court to order inquiry under S.202, Cr.P.C.‑‑‑Courts, however, usually hold preliminary enquiry as a matter of abundant caution‑‑‑Order of Court to the extent of dismissal of complaint against third accused, was set aside and case was remanded to Trial Court with direction that complainant should be permitted to adduce further evidence under S.202, Cr.P.C. in support of allegation made in compliant and pass order according to law after recording statements of prosecution witnesses.

Arif Hussain Khilji for Applicant.

Khursheed A. Hashimi D.A.G.

2002 M L D 1892

[Karachi]

Before Rasheed A. Razvi, J

TAHIRA IQBAL and 2 others‑‑‑Plaintiffs

versus

ZAFAR IQBAL and 2 others‑‑‑Defendants

Suit No.836 of 1990, decided on 4th September, 1998.

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

‑‑‑‑S.1‑‑‑Damages‑‑‑Entitlement‑‑‑Deceased died due to rash and negligent driving of defendant‑‑‑No evidence was produced by the defendants in rebuttal‑‑‑Effect‑‑‑Plaintiffs were entitled for monetary compensation in circumstances.

(b) Fatal Accidents Act (XIII of 1855)‑‑‑

‑‑‑‑S.1‑‑‑Damages‑‑‑Computation‑‑‑Maximum expected age of deceased was taken to be 70 years and total earning for the remaining years was calculated on that basis‑‑‑In the expected income so calculated, 20% more was added keeping in view further increments, increased earnings and future prospects which could have been earned by the deceased‑‑­Personal expenses of the deceased to the extent of 20% were deducted out of the total income so calculated‑‑‑High Court after computing the total earnings of the deceased in such a manner, calculated the total savings of the deceased for the benefits and welfare of the plaintiffs‑‑­Suit was decreed to the extent of the total savings of the deceased in circumstances.

Nasir Maqsood for Plaintiff.

Nemo for Defendants.

Date of hearing: 21st August, 1998.

2002 M L D 1898

[Karachi]

Before Wahid Bux Brohi, J

GHULAM MUHAMMAD SHALGIRI‑‑‑Petitioner

versus

S.H.O., SHAHDADKOT and 2 others‑‑‑Respondents

Constitutional Petition No. 176 of 2002, decided on 23rd April, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.1S.4‑‑‑Constitution of Pakistan (1973), Art. 199 & 4‑‑‑Constitutional petition‑‑‑Registration of criminal case against police officials‑‑­Petitioner was father of accused who was arrested by police for offence under Ss.325 & 379, P.P.C. in a blind F.I.R. in which no culprit had been nominated‑‑‑Petitioner had alleged that while his son was in custody of police, police officials had severely beaten him and caused severe injuries on his head and other parts of his body and put lime powder and Naswar in his ears and mouth as a result of which his condition had become serious‑‑‑Petitioners had prayed that F.I.R. should be lodged against police officials responsible for action against his son‑‑‑Medical Officer after examining son of the petitioner certified injuries on the person of the son of petitioner which were caused during custody of police‑‑‑Said Medical Certificate was though an evidence of fact which spoke of some incident, but it was difficult for High Court to form an opinion about commission of the act by a particular person and hold him responsible for such criminal act‑‑‑Such a finding is to be rendered by Trial Court‑‑‑Petitioner, however, had inalienable right within meaning of Art.4 of Constitution of Pakistan (1973) to be dealt with in accordance with law and have his case registered within meaning of S.154, Cr.P.C. if cognizable offence was made out‑‑‑High Court directed that as and when petitioner appeared at concerned Police Station and made statement, same as to be recorded and F.I.R. registered.

Imran Ashraf v. State 2001 SCMR 424 and Syed Saeed Ahmed Shah v. State 1993 SCMR 550 ref.

Muhammad Ayaz Soomro for Petitioner.

Muhammad Bachal Tunio, Addl. A.‑G

Date of hearing: 23rd April, 2002

2002 M L D 1901

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

TANVEER MAHBOOB‑‑‑Appellant

versus

HAROON and 12 others‑‑‑Respondents

High Court Appeal No.39 of 1987, decided on 12th September, 2001.

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

‑‑‑‑O.XX, R.5‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.72‑‑‑Specific finding on issue‑‑‑Existence of document denied‑‑‑Effect‑‑‑When one of the parties to suit denies existence of a document, Court is generally required to record a specific finding on the issue.

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

‑‑‑‑S. 27(b)‑‑‑Principle of bona fide purchaser for valuable consideration without notice‑‑‑Onus to prove‑‑‑Provision of S.27(b) of Specific Relief Act, 1877, is an exception to the general rule and heavy burden lies upon a person claiming to be purchaser by affirmatively establishing his case.

Khairun Nisa v. Malik Muhammad Ishaque PLD 1972 SC 25 ref.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 72 8c 117‑‑‑Document‑‑‑Onus to prove‑‑‑Agreement relied on by one party was denied by the other party‑‑‑Effect‑‑‑Heavy burden was cast upon the party relying upon the agreement to prove the genuineness of the same.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 72 & 79‑‑‑Execution of document‑‑‑Proof‑‑‑Dispute was with regard to execution of two agreements relied upon by the appellant‑‑­Neither attesting witnesses nor Advocate, nor Notary Public before whom the two agreements were said to have been executed were called upon to give evidence by the appellant and his brother who was one of the respondents‑‑‑Even father of appellant who defended the suit as a guardian of his brother and through whom the entire transaction subject­matter of litigation was admitted to have been effected, did not enter the witness‑box‑‑‑Only the appellant himself gave evidence who, at the relevant time, was about 18 years old‑‑‑Four agreements were produced before the Single Bench of High Court in exercise of original jurisdiction though purported to have been executed on different dates but were witnessed by one and the same person who was resident of a place situated at a substantial distance from the places where the parties resided or where property was located‑‑‑Effect‑‑‑Conclusions of the Single Judge of High Court to the effect that two agreements relied upon by the appellant were collusive and fraudulent were unexceptionable.

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

‑‑‑‑O.XXXII, R.3‑‑Guardian ad litem‑‑‑Failure to appoint‑‑‑Minor was represented by his father and Single Judge of High Court in exercise of original civil jurisdiction did not appoint guardian ad litem as required under O.XXXII, R.3, C.P.C.‑‑‑Plea raised by the appellant was that judgment and decree passed by the Single Judge be set aside for omission to appoint guardian ad litem‑‑‑Validity‑‑‑Duty to appoint guardian ad litem is that of the Court itself and the rights of the parties should not be jeopardized on account of omission to perform such duty‑‑‑If the failure of Court to appoint guardian ad litem has not caused any substantial miscarriage of justice or has not prejudiced the interest of minor, such defect can be rectified at any stage or overlooked‑‑‑For setting aside of the decree, it needed to be shown that omission to appoint the guardian ad litem had caused prejudice to the interests of the minor‑‑‑No prejudice having been caused to the rights of the minor in the present case, High Court declined to set aside the decree because remanding the matter to the Trial Court would not serve any purpose and would only entail delay‑‑‑Appeal was dismissed in circumstances.

Muhammad Yousuf Khatak v. S.M. Ayoob PLD 1973 SC 160; Ghulam Hussain and others v. Ghous Bakhsh and others 1968 SCMR 991; Muhammad Sharif and another v. Nadim Shahid and others 1988 SCMR 804; Taj Din and another v. Mehr Mai and others, 1997 SCMR 134; Mashal Khan v. Fazal Karim PLD 1963 Pesh. 93; Aijaz Ahmed Khan v. Shoukat Ali 1989 MLD 2218 and Anisa Begum and another v. Mrs. Aminuddin and others 1993 CLC 1999 ref.

Ram Chandra Arya v. Man Singh and another AIR 1968 SC 954 distinguished.

Fazal‑e‑Ghani Khan for Appellant.

Mushtaque Ahmed Memon for Respondents Nos. 1 and 2.

Iqbal Kazi for Respondent No. 13.

Date of hearing: 31st August, 2001.

2002 M L D 1913

[Karachi]

Before S. Ali Aslam Jafri, J

ABDULLAH and others‑‑‑Applicants

versus

PROVINCE OF SINDH and others‑‑‑Respondents

Revisions Applications Nos.168 to 181 of 2000, decided on 21st June, 2002.

Limitation Act (IX of 1908)‑‑‑

----‑S.5‑‑‑Condonation of delay‑‑‑Sufficient cause‑‑‑Government Department not entitled to special treatment in matter of limitation‑‑­ Defendants Government Departments who were duly served had failed to contest the suits but were not condemned unheard‑‑‑Despite opportunity given to cross‑examine the witness after having been recalled, the defendants failed to conduct the cross‑examination‑‑‑Evidence was also not adduced on behalf of any of the defendants‑‑‑Conduct of the defendants remained negligent‑‑‑Application for condonation of delay in filing appeal‑‑‑Validity‑‑‑Valuable right accrued to the other side by lapse of time and it was necessary that each day's delay be satisfactorily explained‑‑‑Government/official institutions were not entitled for any special indulgence in cases, where time‑barred proceedings had been instituted‑‑‑while condoning the delay had not recorded cogent reasons or grounds in support of his order for condonation of delay and allowing the appeal‑‑‑High Court set aside the judgments and decrees passed by the District Judge‑‑‑High Court deprecated the careless conduct of Government officials in not taking case at the proper time to contest, defend or prosecute the interest of their Department with the result that most of cases go undefended and not prosecuted properly‑‑ Registrar of the High Court was directed to send the copy of the judgment to the Provincial Chief Secretary to fix the responsibility of the concerned official(s) as well as other concerned persons for the negligence and intimate to the High Court within six months as to what action had been taken against such persons responsible for causing tremendous loss to the Government.

In the present case the defendants were duly served and failed to contest the suits. It is also without any substance to say that they have been condemned unheard. Despite opportunity given to cross‑examine the witness after having been recalled, the defendants failed to conduct the cross‑examination. Evidence was also not adduced on behalf of any of the defendants and it appears that a walkover was allowed to other side. Their conduct has remained negligent throughout. It is the most unfortunate aspect of the matter that various Government departments or even autonomous bodies do not take care at the proper time to contest, defend or prosecute the interest of their department with the result that most of cases go undefended and not prosecuted properly. The reason for such carelessness or lack of interest is obvious. It has' become the tendency, of a large number of Government officials not to pay any attention to any file or Government work unless they are paid something by the person interested, in such work or movement of file. Unfortunately, it is not possible in such cases where it is the Government or the department alone whose interest is to be safeguarded by its employees as a part of their duty. On the contrary the private person having an interest adverse to that of the Government may succeed in getting such papers and files either misplaced or dumped in cold storage unless the matters become time‑barred Despite, repeated verdicts and directions from Courts at all levels including the Supreme Court of Pakistan no such example has come to the notice of the Courts or the public at large that a delinquent official responsible for such delay or negligence in defending or prosecuting the interest of the Government/public exchequer has been taken to task and ordered to make good the loss sustained by the Government. The Government shall go on suffering such losses at the hands of its employees who are in habit of behaving in such callous manner, unless an example is set by awarding exemplary punishments.

Limitation creates a vested right in favour of the other side.

In civil matter a valuable right accrues to the other side by lapse of time and it is necessary that each day's delay should be satisfactorily explained.

.

Government cannot claim to be treated in any manner different from ordinary litigant and the ground for delay in filing the appeals or revisions that the matter remained under examination at different departmental levels has never been considered to be a valid ground for extension of period of limitation.

Government/Official institutions were) not entitled for any special indulgence in cases, where time‑barred proceedings had been instituted.

There are no cogent reasons or grounds having been advanced in support of order for condonation of delay and allowing the appeals by the District Judge. Resultantly, these revision applications are allowed, judgments and decrees passed by the Appellate Court are set aside.

High Court observed that a copy of this judgment he sent to the Provincial Chief Secretary and Managing Director of the organization to inquire into the matter and fix the responsibility of the concerned officers) as well as other concerned persons for such ne0igence and intimate the Registrar of High Court within six (6) months from the date of this order as to what action has been taken against such persons responsible for causing such tremendous loss to the Government either due to their negligence or being in collusion with the other side.

Muhammad Yousuf v. Khaarail Bibi 1995 SCMR 784; Divisional Forest Officer and others v. Haji Sher Muhammad 2000 CLC 650; Commissioner of Income‑tax v. Rais Pir Ahmad Khan 1981' SCMR 37; Divisional Forest Officer and others v. Haji Sher Muhammad 2000 CLC 650; Lahore High Court, Lahore v. Nazar Muhammad Fatiana and others 1998 SCMR 2376; Muhammad Hussain v. Settlement and Rehabilitation Commissioner and others 1975 SCMR 304 and Government of Balochistan through Secretary Education and 2 others v. Juma Khan 1994 MLD 2315 ref.

S. Ahsan Ali Shah for Applicants.

Masood A. Noorani, Asstt. A.‑G., Sindh for Respondent No. 1.

Dost Muhammad Sirai for Respondent No.4.

Date of hearing: 28th January, 2002.

2002 M L D 1929

[Karachi]

Before Wahid Bux Brohi, J

GHULAM MOINUDDIN JAMALI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.283 and Miscellaneous Application No.1611 of 2001, decided on 4th April, 2002.

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

‑‑‑‑S. 491‑‑‑Custody of minor‑‑‑No illegality was committed in dealing with question of custody of a minor under S.491, Cr.P.C. provided it was reasonably made out that minor was in illegal or unlawful custody‑‑­Mother having tight of Hizanat and children being below seven years, it was far from assuming that children living with her were in illegal/unlawful and improper custody.

Muhammad Bashir v: Ghulam Fatima PLD 1935 Lah. 73; Muhammad Ayub v. Nasim Begum 1996 CLC 1534; Aisha Bibi v. Muhammad Riaz Tariq 1999 CLC 2084; Ghulam Fatima v. State 1998 SCMR 289; Shafqat Ullah Khan v. Naveed Shahbaz 1995 PCr.LJ 1868; Khushi Muhammad's case 1998 SCMR 1234; Ahmad Sami's case 1996 SCMR 2 and Miss Hina Jilani's case PLD 1994 Lah. 151 ref.

Mrs. Rasheeda M. H. Patel for Petitioner.

Muhammad Arshad Warsi for Respondents Nos.2 to 6.

Fazalur Rehman Awan, State Counsel.

2002 M L D 1933

[Karachi]

Before Muhammad Roshan Essani and Sarmad Jalal Osmani, JJ

MUHAMMAD ARIF alias MAMA‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.217 of 2001, decided on 18th May 2002.

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

‑‑‑‑S.13‑D‑‑‑Appreciation of evidence‑‑‑Police witness‑‑‑Police functionary is as good a witness as any other person until and unless it is proved that he bore grudge or was inimical towards the accused or his evidence was tainted with mala fides.

(b) West Pakistan Arms Ordinance (XX of 1965)‑‑‑--

‑‑‑‑S.13‑D‑‑‑Appreciation of evidence‑‑Prosecution evidence had remained unshattered in cross‑examination‑‑‑Defence could not point out any material contradiction in evidence‑‑‑Immaterial contradictions and minor discrepancies or omissions in the prosecution evidence to be overlooked‑‑‑Merely because the prosecution witnesses were police personal was no ground for rejection of their testimony‑‑‑Record did not show that the police had foisted such a large quantity of weapons and ammunition upon the accused‑‑‑Impugned judgment did not suffer from any legal infirmity or material irregularity‑‑‑Conviction and sentence of accused were upheld in circumstances.

Zahir Khan v. The State 1995 SCMR 1793 ref.

S.K. Jatoi for Appellant.

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

Date of hearing: 17th May, 2002.

2002 M L D 1944

[Karachi]

Before Muhammad Roshan Essani and Muhammad Mujeebullah Siddiqui, JJ

RAJAB ALI ‑‑‑ Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Revision Application No.161 of 2001, decided on 30th April, 2002.

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

‑‑‑‑Ss. 6/9‑‑‑Criminal Procedure Code (V of 1898), S. 516‑A‑‑‑Return of motorcycle on Superdari‑‑‑Allegation against applicant/accused was that he alongwith other person was apprehended by Police while going on motorcycle and 40 grams of heroin was recovered from pocket of shirt of each accused‑‑‑Application moved by applicant before Trial Court under S.516‑A, Cr.P.C. for return of motor‑cycle, was rejected‑‑‑Evidence on record had shown that alleged narcotic was not recovered from motorcycle, but same was recovered from persons of accused‑‑‑Trial Court was directed to release motor‑cycle to applicant on Superdari.

Muhammad Waseem Samo for Applicant.

Habib Ahmed, A.A.‑G. for the State.

2002 M L D 1949

[Karachi]

Before Muhammad Roshan Essani and

Muhammad Mujeebullah Siddiqui, JJ

Syed RAEES ALAM‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Revision Application No.59 of 2002, decided on 2nd May, 2002.

(a) Anti‑Terrorism Act (XXVII of 1997)‑‑‑--

‑‑‑‑Ss. 2(e)(g) & 2(a)(ii)‑‑‑Penal Code (XLV of 1860), Ss.302/147/148/149/34‑‑‑Application for transfer of case to Special Court‑‑‑Dismissal of application‑=‑Petitioner/complainant had contended that deceased being a police constable, only Special Court under Anti­ Terrorism Act, 1997 was competent to take cognizance of the case‑‑­F.I.R. ‑had shown that deceased though a Police Constable, but was not killed while performing his duties‑‑‑Merely because a Policeman was killed, was not sufficient ground for trial of case by Anti‑Terrorism Court.

Nadeem Butt v. The Special Court and another NLR 2000 Criminal 25 and Mehram Ali and others v. The State PLD 1998 SC 1445 ref.

(b) Interpretation of statutes‑‑‑

‑‑‑‑ Procedural law ‑‑‑Retrospectivity‑‑‑Procedural law had retrospective effect and not prospective if same did not curtail vested rights in existence at the time of passing of the law.

S. M. Aamir Naqvi for Applicant.

Habib Ahmed, A.A.‑G

Date of hearing: 2nd May, 2002.

2002 M L D 1973

[Karachi]

Before Wahid Bux Brohi, J

AKHTAR ZAMIN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Jail Appeal No.69 of 2001, decided on 21st March, 2002.

Penal Code (XLV of 1860)‑‑‑-

‑‑‑‑Ss.393/398/34‑‑‑Appreciation of evidence‑‑‑Main implicated accused stating that attempt was made by robbery on point of pistol which failed and accused was spot alongwith pistol‑‑‑Investigating Officer also corroborated version of witnesses‑‑‑Enough ocular evidence was available, in support of charge against accused‑‑‑Nothing existed on record to show that there was any enmity between witnesses and accused or that there was some motive to implicate accused falsely‑‑‑Accused was apprehended on the spot and trustworthy evidence had come on record on that point through eye‑witnesses and Trial Court was justified in believing the same ‑‑‑Fire­arm namely T.T. Pistol used in commission of offence, was also secured thereby corroborating version of eye‑witnesses‑‑‑Defence plea had duly been considered and rejected as improbable and unbelievable‑‑‑Finding of conviction of accused,, in circumstances, could not be interfered with‑‑‑Appeal filed by accused against his conviction was barred by time and explanation given by accused for delay, in filing appeal was not plausible and convincing‑‑‑Appeal otherwise being time‑barred, was liable to be dismissed specially when no application for ,condonation of delay was filed by accused.

Appellant in person.

Masooda Siraj, State Counsel.

Date of hearing: 21st March, 2002.

2002 M L D 1978

[Karachi]

Before Muhammad Afzal Soomro, J

MUHAMMAD ISMAIL ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Revision Application No.48 of 2000, decided on 17th April, 2002.

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

‑‑‑‑S.540‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)‑‑‑Application for recalling witness for cross­ examination‑‑‑Examination‑in‑chief of victim girl who was main witness was recorded, but she could not be cross‑examined on that date due to absence of counsel of accused‑‑‑Counsel for accused filed application under S.540, Cr.P.C. for recalling witness for cross‑examination which was ordered to be fixed for hearing, but Trial Court despite pendency of application examined five more witnesses and closed side of prosecution, fixed the case for statement of accused and dismissed application filed under S.540, Cr.P.C. on sole ground that application was not pressed at appropriate stage‑‑‑Absence of counsel for accused on date when examination‑in‑chief of victim was recorded‑ was was not intentional, but was due to pre-occupation before other Court and due to which he could not reach the Trial Court‑‑‑Obligatory upon Courts to recall and re­ examine any person whose evidence appeared essential to just decision of case‑‑‑Since victim/witness was a key witness and she had made several contradictory statements, her cross‑examination and confrontation with her previous statements was just and essential for reaching at a fair and equitable decision of case‑‑‑Trial Court had not examined application filed under S.540, Cr.P.C. in a legal and judicial manner and had not touched legality and propriety thereof‑‑‑Observation of Trial Court as regards not pressing application, under S.540, Cr.P.C. was not tenable because even if counsel of accused was absent it was bounden duty of trial Court to dispose of the same even without giving notice to prosecution‑‑‑Order of Trial Court was set aside by High Court directing Court to recall' and cross‑examine victim/prosecution witness.

Altaf Hussain Shamim v. The State PLD 1992 Kar. 91 and Mst. Amna Bibi v. Kashif‑ur‑Rehman and another 1995 PCr.LJ 730 ref.

(b) Administration of justice‑‑‑

‑‑‑‑ Duty of Court‑‑‑Court not to conduct trial in a manner which would reflect upon its impartiality‑‑‑Court could not remain indifferent altogether‑or to act as a helpless onlooker so as to watch injustice being perpetrated on account of lapses of either of parties‑‑‑Was duty of Court to do justice to parties within ambit of law and if law would bestow an authority or a discretion on Court, same must be exercised judicially for advancement of justice and not against it.

Shahab Sarki and Nazamuddin Memon for Applicant.

Habibur Rasheed for the State.

Date of hearing: 10th April, 2002.

JUDGMENT

2002 M L D 1989

[Karachi]

Before Muhammad Afzal Soomro, J

SIRAJUL HAQUE‑‑‑Applicant

Versus

Mst. MALKA BIBI and 2 others‑‑‑Respondents

Criminal Miscellaneous Application No.263 of 2001 and Miscellaneous Application No. 81 of 2002, decided on 14th May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 145(4) & 561‑A‑‑‑Unlawful dispossession from property‑‑­Application for restoration of possession‑‑‑Invoking inherent jurisdiction of High Court‑‑ ‑Applicant who allegedly was dispossessed by respondents from property in question filed application before Magistrate for restoration of his possession after about two years from alleged dispossession‑‑‑Such delay was fatal in view of bar of two months stipulated by subsection (4) of S.145, Cr.P.C. under which applicant himself had sought restoration of possession of property in question‑‑‑Proper forum for applicant was to approach Civil Court for seeking relief in respect of possession of property in dispute‑‑‑Criminal miscellaneous application was dismissed being meritless.

Gul Malik and Ali Akbar for Applicant.

Muhammad Yaqoob for Respondents Nos. 1 and 2.

Ms. Masooda Siraj for the State.

2002 M L D 1995

[Karachi]

Before Wahid Bux Brohi, J

SHER ALI ‑‑‑ Petitioner

Versus

MIR MUHAMMAD and others‑‑‑Respondents

Civil Revision No. 14 of 2000, decided on 10th April, 2002.

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.12(2)(3)‑‑‑Exclusion of time‑‑‑Distinction between subsections (2) & (3) of S.12 of Limitation Act, 1908‑‑‑Subsection (2) of S.12, Limitation Act, 1908 provides a relaxation by way of exclusion of time requisite for obtaining copy of decree, while subsection (3) of the said section relates to copy of judgment.

(b) Limitation Act (IX of 1908)‑‑‑-

‑‑‑‑S.12(2)(3)‑‑‑Exclusion of time‑‑‑Entitlement as of right‑‑‑Discretion of Court‑‑‑Scope‑‑‑Section 12(2)(3) of the Limitation Act, confers a substantive statutory right upon appellant to claim the manner mentioned therein‑‑‑Such entitlement is available right‑‑‑Exclusion of time is to be allowed strictly in S.12 of the Limitation Act‑‑‑Court cannot put any, restriction while allowing such deduction of time.

(c) Limitation Act (IX of 1908)‑‑‑--

‑‑‑‑S.12(2)(3)‑‑‑Exclusion of time requisite for obtaining copy of decree and judgment appealed against‑‑‑Computation of overlapping period‑‑­Criteria‑‑‑Appellant is entitled as of right to avail exclusion of aggregate period spent in obtaining copies of both the judgment and decree‑‑­Where applications for copies of decree and judgment are made within due dates, then appellant while claiming aggregate period would not be allowed the overlapping period to be excluded twice‑‑‑Time runs only once and not twice, thus, overlapping period is to be computed only once.

Latif Ullah Shah v. Qalandar Shah PLD 1962 Azad J&K 23; Barada Prasanna Lod v. Murshed Muhammad Asir and another PLD 1962 Dacca 381 and Federation of Pakistan v. Aspi PLD 1960 (W.P.) Kar. 562 ref.

(d) Limitation------

-----Time runs only once and not twice.

(e) Limitation Act (IX of 1908)‑‑‑--

‑‑‑‑Ss.5, 12 & Art. 152‑‑‑Appeal against decree ‑‑‑Limitation‑‑­Condonation of delay‑‑‑Suit was decreed on 30‑6‑1998‑‑‑Appellant applied for copies of judgment and decree both on 1‑7‑1998, which were supplied on 27‑8‑1998‑‑‑Appeal was filed on 30‑9‑1998 i.e. after 91 days from passing of decree ‑‑‑Total 58 days were spent in obtaining copies‑‑­Appellate Court dismissed the appeal as being barred by three days‑‑­Appellant's plea was that overlapping period had to be computed twice and 116 days in aggregate had to be excluded, and if such computation was made, appeal would be well within time‑‑‑Validity‑‑‑Only 58 days from 1‑7‑1998 to 27‑8‑1998 were to be excluded within the meaning of S.12(2)(3) of the Limitation Act‑‑‑If 58 days spent in obtaining the copy was excluded only once, the appeal would be deemed to have been filed after 33 days, thus, same was barred by 3 days‑‑‑View taken by Appellate Court was correct.

(f) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.5‑‑‑Condonation of delay‑‑‑Vested right accrues by lapse of time, which cannot be dealt with lightly on surmises conjectures‑‑‑Delay has to be explained satisfactorily.

(g) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.5‑‑‑Condonation of delay‑‑‑Explanation for delay founded on misconception cannot be accepted‑‑‑Valuable rights accrue on account of limitation‑‑‑Each day's delay has to be explained.

Muhammad Hussain v. Settlement and Rehabilitation Commissioner 1975 SCMR 304; Muhammad Saeed v. Shaukat Ali 1982 SCMR 285 and Sher Bahadur v. Government of N.‑W.F.P. 1990 SCMR 1519 rel.

(h) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.5‑‑‑Condonation of delay‑‑‑Opposite party is not to be penalized in the matter of condonation of delay.

(i) Limitation Act (IX of 1908)‑‑‑--

‑‑‑‑S.5‑‑‑Conddnation of delay‑‑‑Mistaken advice of previous counsel‑‑­Cannot be accepted as a ground for condonation of delay.

Khalid Segol v. N.I.T. PLD 1985 SC 124 fol.

(j) Limitation Act (IX of 1908)‑‑‑‑

‑‑‑‑S.5‑‑‑Condonation of delay‑‑‑Dismissal of appeal as being barred by three days‑‑‑Appellant's plea was that he was busy in his official duties and was under bona fide impression that appeal could be filed within time‑‑‑Validity‑‑‑Appellant had to explain such delay satisfactorily‑‑‑If such kind of versions were accepted as explanation, then Limitation Act would be at the mercy of parties to claim condonation of delay at their whims‑‑‑Vested right had accrued to respondents owing to delay in filing of appeal, which could not be defeated on the basis of said plea‑‑‑Explanation was wholly ill‑founded and was rejected.

Rukhsana Ahmed v. Tariq Ataullah 1980 SCMR 36 and S.M. Sadiq v. Settlement Commissioner 1974 SCMR 149 ref.

(k) Civil Procedure Code (V of 1908)‑‑‑-

‑‑‑‑S.115‑‑‑Revisional jurisdiction of High Court‑‑‑Scope‑‑‑No legal infirmity in impugned judgment‑‑‑Appellate Court had not exercised its jurisdiction illegally or with material irregularity‑‑‑Ingredients of S.115, C.P.C., were not made out‑‑‑High Court dismissed the revision petition in circumstances.

Moohan Lal K. Makhijani for Applicants.

Lachhmandas H. Sachedavi for Respondents Nos. 1, 2, 5 and 6.

Moohan Lal Charai for Respondent No.7.

Date of hearing: 10th April, 2002.

2002 M L D 1

[Lahore]

Before Sheikh Abdur Razzaq and Bashir A. Mujahid, JJ

FALAK SHER and others‑‑‑Appellants

Versus

THE STATE‑‑‑‑Respondent

Criminal Appeals Nos.957, 959 and Murder Reference No.343 of 1999, heard on 3rd October, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/392/34/109‑‑‑Appreciation of evidence‑‑‑Only evidence against one of the accused persons was his confessional statement allegedly made by him before one of the prosecution witnesses‑‑‑Said statement of the accused was to the effect that his co‑accused were implicating him in the commission of murder, but he only had supplied the weapons of offence to them and said weapons had not been found to have been used in the commission of offence as report of the Forensic Science Laboratory was in negative thus the recovery of those weapons from the possession of co‑accused was immaterial‑‑‑Statement of prosecution witness with regard to confessional statement of the accused, had not been corroborated by any other independent source‑‑­Prosecution having failed to connect the accused with the offence, he was acquitted of the charge extending him benefit of doubt‑‑‑Alleged confessional statement of other two co‑accused being joint one, had no evidentiary value and was discarded‑‑‑Remaining evidence against co­accused was of recovery of weapon, of offence‑‑‑Empties taken into possession from the spot did not tally with pistol and revolver recovered from co‑accused‑‑‑Such recovery was immaterial and did not connect the co‑accused with commission of murder ‑‑‑Co‑accused were acquitted of charge of murder, but prosecution had successfully established its case of robbery under S.392/34, P.P.C., against them as articles recovered from them had fully been identified by the prosecution witnesses‑‑‑Sentence and conviction of accused under S.392/34, P.P.C., in circumstances, were maintained.

Sardar Shaukat Ali, Ch. Muhammad Shafiq and Asghar Ali Haujra for Appellants.

S.N. Khawar Khan for the Complainant.

Qazi Zafar lqbal for A.‑G. for the State.

Date of hearing: 3rd October, 2001.

2002 M L D 9

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD ASHRAF‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1421‑B of 2001, decided on 30th August, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of ‑‑‑Coaccused who was assigned the similar role in the occurrence as alleged against the accused was found innocent during the investigation‑‑­Accused was empty‑handed and did not cause any injury to the deceased‑‑‑Accused being nearest relative of the co‑accused, the likelihood of his being falsely involved in the case could not be ruled out‑‑‑Allegation against the accused needing further probe, he was entitled to bail.

Miran Bakhsh v. The State and another PLD 1989 SC 347 ref.

Mian Fazal Rauf Joya for Petitioner.

Sh. Muhammad Raheem for the Complainant.

Sh. Muhammad Aslam for the State.

2002 M L D 14

[Lahore]

Before Sheikh Abdur Razzaq and Bashir A. Mujahid, JJ

AMIR ALI alias BEER‑‑‑Appellant

Versus

THE STATE‑‑‑‑Respondent

Criminal Appeal No.400 and Murder Reference No. 113 of 1996, heard on 4th October, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/324‑‑‑Appreciation of evidence‑‑‑Sentence, reduction of‑‑‑Occurrence was a broad daylight event supported by eye‑witnesses‑‑‑­Statement of eye‑witnesses had been further corroborated by statements of the injured witnesses‑‑‑No possibility of mistaken identity of the accused or his false implication or substitution existed‑‑‑Prosecution witnesses had no previous enmity to falsely implicate the accused by letting off _ the real culprits‑‑‑Prosecution case had been further corroborated by the medical evidence‑‑‑Prosecution, in circumstances, had successfully proved its case against the accused beyond any shadow of doubt and no reason existed to interfere in the conviction of the accused recorded by the Trial Court but sentence of death awarded to the accused could be reduced to imprisonment for life in view of conduct of the complainant who did not try to apprehend the accused when he was attracted to the place of occurrence on hearing hue and cry of the deceased‑‑‑Manner, the investigation was carried out and the medical examination of the injured prosecution witnesses before the registration of P.I.R. were also the circumstances in which it could be considered that case was fit where death sentence was to ‑ be reduced into imprisonment for life, ‑‑‑sentence was reduced accordingly.

Hasnat Ahmed Khan for Appellant.

Asghar Ali for the Complainant Muhammad Sharif Cheema for A.‑G. for the State.

Date of hearing: 4th October, 2001.

2002 M L D 31

[Lahore]

Before Nazir Ahmad Siddiqui, J

Mst. SHARAF ELAHI‑‑‑Petitioner

Versus

DEPUTY LAND COMMISSIONER, BAHAWALPUR

and 5 others ‑‑‑Respondents

Writ Petition No. 1000 of 1990/BWP, decided on 20th November, 2000.

Land Reforms Act (II of 1977)‑‑‑

‑‑‑‑S. 7‑‑‑Muslim Family Laws Ordinance (VIII of 1961), S.10‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Transfer of land by way of dower‑‑‑Husband of the petitioner at the time of marriage transferred land in name of the petitioner by way of dower‑‑‑Husband submitted declaration under S. 7 of Land Reforms Act, 1977, excluding land transferred to the petitioner but Authority included the said land in his holding and after calculating total produce index units ordered him to surrender excess land in favour of the Government‑‑‑Validity‑‑‑Nothing was on record to prove that Nikahnama whereby land in question was given/transferred to the petitioner by her husband by way of dower was a fabricated document‑‑‑Authority considered Nikahnama as forged and fabricated one on the ground that columns therein dealing with amount and nature of dower were left blank‑‑‑Question as to whether leaving blank said columns could lead to an inference that the Nikahnania was forged and fabricated, needed consideration but no opportunity was given to the petitioner to prove that in relevant column of Nikahnama it was clearly mentioned that the bridegroom had given said land to his wife/petitioner as dower and said Nikahnama was written long prior to the enforcement of Land Reforms Act, 1977‑‑‑Nikahnama wa~ admissible to prove factum of alienation of property in lieu of dower‑‑­Authority which had not seen the matter in its true perspective, had committed material irregularity and illegality while rendering order which had resulted in grave miscarriage of justice‑‑‑Order passed by the Authority was set aside and case was remanded to be decided afresh on merits.

M.M. Bhatti for Appellant.

Syed Muhammad Mazhar Shah for Respondents Nos.4 to 6.

M.A. Farazi on behalf of A.A.‑G.

Date of hearing: 14th November, 2000.

2002 M L D 36

[Lahore]

Before Muhammad Akhtar Shabbir, J

ROSHAN DIN SHAH‑‑‑Petitioner

Versus

DISTRICT AND SESSIONS JUDGE, BAHAWALPUR

WITH THE POWER OF DISTRICT RETURNING

OFFICER and 2 others‑‑‑Respondents

Writ Petition No. 1182 of 2001/BWP, decided on 13th March, 2001.

Punjab Local Councils Elections Rules, 2000‑‑‑

‑‑‑‑R.16‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Rejection of nomination papers‑‑‑Nomination papers filed by the petitioners /candidate through his attorney were rejected by the Returning Officer on the ground that same were not signed by the candidate himself‑‑‑Appeal against order of Returning Officer having been dismissed, the candidate had filed Constitutional petition against dismissal order‑‑‑Under provisions of R.16 of Punjab Local Councils Elections Rules, 2000, it was obligatory on a candidate to sign the nomination papers and solemn affirmation made thereunder and also to submit a declaration of his assets‑‑‑Law had not provided that the nomination papers of a candidate would be signed by his attorney, nor the attorney could file same before the Returning Officer‑‑‑Authorities below, in circumstances, had rightly rejected nomination papers of the petitioner‑‑‑In absence of any illegality or material irregularity, orders passed by Authorities could not be interfered with by High Court in exercise of its Constitutional jurisdiction.

Syed Munawar Hussain Naqvi for Petitioner.

2002 M L D 47

[Lahore].

Before Nasim Sikandar and Mansoor Ahmad, JJ

AMIN‑UD‑DIN‑‑‑Appellant p

Versus

COLLECTOR OF CUSTOMS, (IMPORT) DRY PORT

SAMBERIAL, SIALKOT and 3 others‑‑‑Respondents

Customs Appeal No. 288 of 2001, decided on 24th September, 2001.

Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 193‑‑‑Appeal against order refusing to grant interim relief by way of suspension of proceedings‑‑‑Auction having already been taken place, only a partial relief could be granted in appeal if it would ultimately succeed‑‑‑Delivery of the consignment had not been made to auction‑purchaser‑‑‑No prejudice would be caused to the Revenue if respondents were required not to deliver the goods for another further next sixty days and in the meanwhile the Tribunal would dispose of the appeal.

Mian Abdul Ghaffar for Appellant.

A. Karim Malik for the Revenue.

2002 M L D 57

[Lahore]

Before Maulvi Anwarul Haq, J.

SAEED BAIG‑‑‑Petitioner

Versus

Mst. KISHWAR SULTANA and 2 others‑‑‑Respondents

Writ Petition No.2462 of 2001, decided on 3rd August, 2001.

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

‑‑‑‑S.25‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Custody of minor‑‑‑Courts below had 'concurrently decided that the welfare of the minor girl lay in custody with her mother‑‑‑No specific allegation was brought to the effect that minor girl was not being properly brought up by her mother who was an educated lady and was employed as teacher and there was nothing adverse against mother to keep the custody of the girl with her‑‑‑Concurrent findings of fact of Courts below based on evidence on record, were correct and could not be interfered with by the High Court in exercise of its Constitutional jurisdiction.

Pak Carpet Industries Ltd. v. Government of Sindh and 2 others 1993 CLC 334; Hassan Arbab Khan v. Principal, Government College, Lahore and others 1996 CLC 1731; Hashinat Ali v. Abdul Hamid and 2 others 1989 CLC 2084; Mst. Umari and another v. Faqir Muhammad and another PLD 1983 Lah. 349 and Muhammad Qasim v. Additional District Judge, Lahore and 3 others PLD 1982 Lah. 14 ref.

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

‑‑‑‑S.14‑‑‑Appeal‑‑‑Production of additional evidence‑‑‑Appellate Authority while hearing appeal, if needed additional evidence, could pass an appropriate order but it would not be a right vesting in the parties to the appeal to make an application or to demand an order being passed for production of additional evidence.

Ajmal Kamal Mirza for Petitioner.

2002 M L D 73

[Lahore]

Before. Maulvi Anwarul Haq, J

Mst. SHAMIM AKHTAR‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, CHAKWAL‑‑‑Respondent

Writ Petition No. 1541 of 2000, heard on 18th July, 2001.

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

‑‑‑‑S.25‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Custody of minor‑‑‑Custody of minor son was concurrently delivered by Courts below to his father or the sole ground that minor had attained the age of seven years‑‑‑Courts below had mainly been influenced by the fact that minor was more than seven years of age, but had not considered the aspect of welfare of the‑minor ‑‑‑Mother of the minor who had been divorced had proved that the child not only had completed the reading of Holy Qur'an, but was also appearing in examination of Class V‑‑‑Father of the minor was living in the house of his brother who himself had six children whereas the mother was sole daughter of her father who was alive and was running a shop and also was earning agricultural income and spending all his income on her and the minor‑‑‑No allegation was levelled to the effect that there was any danger to the health or well‑being of the minor‑‑‑Welfare of the minor, in circumstances, lay in his custody with his mother‑‑‑Courts below, in circumstances, had acted without lawful authority, by passing orders delivering the 9ustody of the minor to the father of minor on sole ground that the minor had attained the age of seven years without taking into consideration welfare of the minor especially when ground on which custody of minor was delivered to the father was violative of law laid down by Supreme Court in case reported as 2000 SCMR 838.

Mst. Firdous Iqbal v. Shifaat Ali and others 2000 SCMR 838 ref.

Sardar Hayat Khan Mughal for Petitioner.

Ch. Amir Muhammad Khan for Respondent.

Date of hearing: 18th July, 2001.

2002 M L D 83

[Lahore]

Before Bashir A. Mujahid, J

HADAYAT ALI ---Petitioner

Versus

MUHAMMAD SHAHBAZ---Respondent

Criminal Miscellaneous No.4840-CB of 2001, decided on 31st October, 2001.

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

----S. 497(5)-------Penal Code (XLV of 1860), S.302---Cancellation of bail---Accused, no doubt, was not named in the F.I.R. but he was implicated by the complainant on the same day through his supplementary statement wherein eye-witnesses of the occurrence had also been mentioned---Complainant had no previous enmity or mala fides against the accused for his false implication---Accused was found guilty during investigation and weapon of offence had been recovered from his possession---Offence fell within the prohibitory clause of S.497(1), Cr.P.C.---Non-mention of the name of accused in the F.I.R. and discrepancy in the supplementary statement and the F.I.R. was hardly a ground for grant of bail in a murder case as it required deeper appreciation of evidence---Bail allowed to accused by Sessions Court was cancelled in circumstances.

Qadar Mand v. Muhammad Amroze and 4 others 1998 SCMR 496; Raza Mohsin Qazilbash and others v. Muhamamd Usman Malik and another 1999 SCMR 1794; Muhammad Saleem v. The State 2001 PCr.LJ 1423; Falak Sher alias Sheru v. The State 1995 SCMR 1350; Naeem Akhtar v. State 1996 SCMR 511; Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Rana Muhammad Safdar v. Gulzar Ali alias Papoo and another 1999 PCr.LJ 1 ref.

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

----S. 154---Information in cognizable cases ---F.I.R. is not a substantive piece of evidence and is only meant to put the law into motion.

Syed Muhammad Asghar Naeem for Petitioner.

Zafar Iqbal Chohan for Respondent No. 1.

M. Aslam Malik for the State.

2002 M L D 85

[Lahore]

Before Ijaz Ahmad Chaudhary, J

MANZOOR ULLAH‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 552 of 1997, decided on 17th August, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑No crime empty having been secured from the place of occurrence, recovery of gun from the accused could not corroborate the ocular testimony‑‑‑Report of the Forensic Science Laboratory about the gun being in working condition could not by itself prove that the said gun was actually used by the accused in the occurrence‑‑‑Injuries sustained by the accused during the occurrence had been duly proved by the defence evidence, which the eye‑witnesses had suppressed before the police and before the Trial Court‑‑‑Occurrence had not taken place in the manner as stated by the eye‑witnesses who had tried to conceal certain facts‑‑‑Eye‑witnesses were admittedly related to the deceased and inimical towards the accused and they could not be relied upon for conviction of accused unless corroborated by any other material evidence‑‑‑Motive for the murder had been disbelieved‑‑­Medical evidence regarding firing of shot by the accused on the deceased did not support the prosecution version, rather it supported the defence version‑‑‑Accused was acquitted in circumstances, by extending to him the benefit of doubt.

Emperor v. Lalmia and another 1943 IC 206 and Ghulam Hussain v. The State PLD 1974 Kar. 91 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Use of case diaries by the Court‑‑‑Court can suo motu look into Police Diary and question witnesses to contradict evidence‑‑‑Case diary can be consulted not for the purpose of conviction, but for ascertaining any fact in favour of the accused.

Emperor v. Lalmia and another 1943 IC 206 and Ghulam Hussain v. The State PLD 1974 Kar. 91 ref.

Syed Zulfiqar Haider and Khalil Ahmad Naqvi for Appellant.

Mian M. Bashir for the State assisted by Ch.

Bashir Hussain Khalid for the Complainant.

Date of hearing: 6th July, 2001.

2002 M L D 91

[Lahore]

Before Khawaja Muhammad Sharif and

Naeem Ullah Khan Sherwani, JJ

MUHAMMAD SAEED and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.338‑T, 339‑T, 348‑T and 349‑T of 2000, decided on 16th August, 2001.

(a) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑Ss.302, 364/149, 395 & 201‑‑‑Appreciation of evidence‑‑‑Accused were specifically nominated in the F.I.R. for having committed the occurrence in broad daylight in the presence of witnesses named therein‑‑‑One prosecution witness not named in the F.I.R. had been examined in the Court‑‑ ‑No reason was available to disbelieve the testimony of the said three eye‑witnesses‑‑‑Accused alone knew the burial place of the deceased persons whose dead bodies were exhumed on their pointation‑‑‑Extra‑judicial confession made by accused was not joint‑‑‑Incriminating recoveries of Belcha, Kassi and Tractor were also effected at the instance of accused‑‑‑Motive against the accused wag established‑‑‑Convictions and sentences of accused under Ss: 302 & 201, P.P.C. were upheld in circumstances‑‑­Accused were acquitted of the charge under Ss.364/149 & 395, P.P.C.

1977 SCMR 20; PLD 1978 SC 21; PLJ 1974 Cr.C. (Lah.) 460; 1976 PCr.LJ 1462; 1987 MLD 1966 and 1991 PCr.LJ 1217 ref.

(b) Criminal trial‑‑‑--

‑‑‑‑Principle has to build its own case and not to claim benefit of any weakness of defence.

Sardar Muhammad Ishaque Khan for Appellant.

Jan Muhammad Asghar Khan for the State.

Date of hearing: 15th August, 2001.

2002 M L D 107

[Lahore]

Before Nazir Ahmad Siddiqui, J

ALLAH DITTA---Appellant

Versus

H AQ NAWAZ and 9 others---Respondents

Regular Second Appeal No. 132 of 1983; decided on 6th August, 2001.

(a) Punjab Pre-emption (Act I of 1913)----

----Ss. 4 & 13---Pre-emption suit---Single suit would be maintainable against sale effected through two sale-deeds.

Ghulam Akbar v. Iqbal Ahmad 1986 CLC 2169 ref.

(b) Punjab Pre-emption (Act I of 1913)----

----S. 7---Existence of custom of pre-emption ---Proof---Prevalence of custom in the locality where suit land was situated i.e. Chah Tall Wala, had to be proved through cogent evidence---Appellants' witnesses did not make any statement in this regard nor any solid evidence was brought on record to show that locality in question was within the limits of Municipal Committee, Multan prior to enforcement of Punjab Pre-­emption Act, 1913---Appellate Court's judgment and decree dismissing appellant's suit were based on due appreciation of law and facts available on record in circumstances.

Nazir Ahmad v. Fateh Muhammad 1985 CLC 2503; Inam Naqashband v. Haji Sh. Ijaz Ahmed PLD 1995 SC 314; Hakim Ali v. Muhammad Saleem and another 1992 SCMR 46; Nazir Ahmad v. Fateh Muhammad 1994 SCMR 529; Mst. Maqsooda Begum v. Maulvi Abdul Haque and others PLD 1968 Lah. 897; Hakim Muhammad Ashraf and 7 others v. Haji Ahmad Bakhsh 1987 CLC 2156; Pervez Akhtar v. Muhammad Arif PLD 1977 Lah. 394; Gopal Singh v. Moal Raj AIR 1924 Lah. 557; Kishan Diyal v. Allah Bakhsh (1890) 87 PR; Umar Bakhsh v. Abdul Karim (1898) 70 PR; Allah Ditta v. Muhammad Nazir (1910) 84; Maqsooda Begum v. Abdul Haq PLD 1986 Lah. 897 and Malik Ahmad Yar and others v. Mst. Salma Shafiq and another 2000 CLC 718 ref.

Mian Shamsul Haq Ansari for Appellant.

Malik Naseem Muhammad for Respondents.

Date of hearing: 31st July, 2001.

2002 M L D 118

[Lahore]

Before Muhammad Sair Ali, J

MUZAFFAR KHAN‑‑‑Petitioner

Versus

MUHAMMAD AMIR ‑‑‑ Respondent

Civil Revision No.796 of 2000, heard on 19th September, 2001

(a) Punjab Pre‑emption Act (IX of 1991)‑‑­

‑‑‑‑S.13‑‑‑ Civil Procedure Code (V of 1908), S.115‑‑‑Talbs‑‑‑Proof‑‑­Oral evidence in proof of Talbs, appreciation of ‑‑‑Pre‑emptor's suit was dismissed by Trial Court for having failed to prove requirements of Talbs in accordance with law‑‑‑Appellate Court decreed the suit holding that requirements of Talbs had been fulfilled‑‑‑Contention of vendee was that Appellate Court had not considered the discrepancies in evidence of pre­emptor regarding dates of Talbs‑‑‑Validity‑‑‑Appellate Court had overlooked to specify and refer to particular portions of depositions of witnesses bearing upon dates of knowledge of pre‑emptor and exact date of pronouncement of Talbs leading him to conclude that requirements of timely Talbs had been fulfilled by pre‑emptor ‑‑‑Appellate Court had not attended and endeavoured to meet the specific reasoning advanced by Trial Court‑‑‑Appellate Court found that Trial Court had dismissed the suit on the basis of "minor discrepancies about the time", but it neither made reference to any of the "discrepancies" termed as minor nor opined` as to how and why did it consider such discrepancies to be minor‑‑‑High Court disapproved rejection of evidence of witnesses qua date of knowledge and Talbs in such‑like manner and set aside impugned judgment and decree and remanded the case to Appellate Court for re­decision of appeal.

(b) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 13‑‑‑Performance of Talb‑e‑Muwathibat and Talb‑i‑Ishhad‑‑‑Proof­‑‑In each and every fact and discrepant statement bearing upon date and time of knowledge of pre‑emptor and Talab‑e‑Muwathibat must be taken into account to adjudge upon performance of pre‑emptor as per S.13 of Punjab Pre‑emption Act.. 1991‑‑‑"Minor fact" having a bearing upon material fact for determination of exact time and date also becomes relevant and material fact‑‑‑Evidence of witnesses qua date of knowledge and Talbs of pre‑emptor cannot be rejected calling the same "minor discrepancy about the time" without identifying and particularizing the discrepancies and their nature.

(c) Words and phrases‑‑‑

‑‑‑‑"Minor"‑‑‑Meanings.

Black's Law Dictionary, Sixth. Edn. Centennial Edn. (1891­1991) ref.

(d) Words and phrases‑‑‑

‑‑‑‑"Material fact or issue of fact"‑‑‑Connotation.

(e) Word and phrases‑‑

‑‑‑‑"Discrepancies"‑‑‑Meanings.

Black's Law Dictionary ref.

Abdul Aziz Mian for Petitioner.

Malik Noor Muhammad Awan for Respondent.

Date of hearing: 19th September, 2001.

2002 M L D 121

[Lahore]

Before Mian Saqib Nisar, J

SHOUKAT ALI and 33 others‑‑‑Petitioners

Versus

PROVINCE OF PUNJAB, through District

Collector, Okara and 2 others‑‑‑Respondents

Civil Revision No. 1492 of 2000, decided on 29th May, 2001.

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

‑‑‑‑Ss. 42 & 54‑‑‑Limitation Act (IX of 1908), Art.14‑‑‑Right of easement‑‑‑Suit for declaration and permanent injunction ‑‑‑Limitation‑‑­Claim of the plaintiffs was that they had acquired the right of easement in respect of passage in question which was in their use since long and that transfer of said passage to defendants by the Authority was illegal‑‑‑Suit was decreed by the Trial Court, but the Appellate Court reversed the finding of the trial Court on the ground of limitation holding that mutation in respect of passage in question having been attested before more than three years from filing the suit, same was barred by time in view of Art. 14, Limitation Act, 1908‑‑‑Validity‑‑‑View taken by the Appellate Court was not correct because the plaintiffs in their plaint had stated that the cause of action had accrued to them a week before the filing of the suit when the defendants closed the passage, it was thus that point of time when the cause of action would accrue to the plaintiffs to enforce their right of easement‑‑‑Finding of Appellate Court was erroneous and could not be sustained.

(b) Easements Act (V of 1882)‑‑‑

‑‑‑‑Ss. 12, 14 & 15‑‑‑Specific Relief Act (I of 1877), Ss. 42 & 54 ‑‑‑Right of easement in respect of passage ‑‑‑Entitlement‑‑‑Suit for declaration and permanent injunction‑‑‑ Plaintiffs had claimed that they had acquired the right of easement to use the passage in dispute by afflux of time and transfer of said passage to the defendant by the Authority was illegal and unlawful‑‑‑Validity‑‑‑Grievance of the petitioners was that the width of the metalled road constructed by respondents was 15 feet whereas the passage in dispute was about 40 feet and it was on the basis of width of the road that petitioners were claiming the right of easement‑‑­Metalled/Pakka road had been constructed quite close to disputed passage which could be used by the plaintiffs for the purpose of access to their Abadi‑‑Parallel or adjacent constructed road having provided effective access to the Abadi of the plaintiffs they could not claim any right of easement qua a particular passage and could not prevent the defendants from using the said passage‑‑‑Right of easement to the plaintiffs was qua access to their Abadi, which in no manner had been affected on account of the closure of the disputed passage because of construction of metalled road.

Sarfraz Ahmed Khan Rana for Petitioner.

Malik Khizar Hayat, A.A.‑G.

Mian Ashiq Hussain for Respondent No.3.

2002 M L D 124

[Lahore]

Before Ijaz Ahmad Chaudhary, J

SHAMIM AKHTAR‑‑‑Petitioner

Versus

GOVERNMENT OF THE PUNJAB‑‑‑Respondent

Writ Petition No. 14504 of 1993, decided on 11th September, 2001.

West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act (VII of 1956)‑‑‑

‑‑‑‑S. 3‑‑‑-- Constitution of Pakistan (1973),. Art. 199‑‑‑Constitutional petition‑‑‑Requisition of property‑‑‑Property which had already been taken over by the Government for its officers or offices or for running educational institution and was already in control and occupation of Government, could not be requisitioned‑‑‑Order passed for requisitioning of said property even without prior notice to the owners thereof, was set aside being illegal and without jurisdiction.

PLD 1978 Lah. 87 and PLD 1997 Lah. 207 ref.

Khalil‑ur‑Rehman Sheikh for Petitioner.

Zahid Farani Sheikh, A.A.‑G. for Respondent.

2002 M L D 127

[Lahore]

Before Nasim Sikandar and Mansoor Ahmad, JJ

COLLECTOR OF CUSTOMS, SAMBRIAL, DISTRICT SIALKOT‑‑‑Petitioner

Versus

CUSTOM, EXCISE AND SALES TAX APPELLATE

TRIBUNAL, LAHORE and others‑‑‑Respondents

Customs Appeal No.2860 of 2001, decided on 27th September, 2001.

Interpretation of statutes‑‑‑

‑‑‑‑ Explanation to statutory provisions‑‑‑Function and retrospectivity of‑‑­Proper functioning of the explanation was either to make plain or elucidate a statutory provision‑‑‑Such explanation only functions to explain the meaning and effect of the main provisions and to clear up any doubt or ambiguity in the same‑‑‑Explanation generally is retrospective in nature inasmuch as it seeks to explain and to remove a doubt existing in the mind of the public functionaries as well as the citizens.

Dreamland Cinema, Multan v. Commissioner of Income Tax, Lahore PLD 1977 Lah. 292 and Commissioner of Wealth Tax v. Suresh Mohan Thakur 1995 PTD 1027 ref.

Akram Malik for Petitioner.

Malik Muhammad Sheer Joiya for Respondents.

2002 M L D 145

[Lahore]

Before M. Javed Buttar, J

Mst. ALLAH RAKHI through Legal Heirs

and others‑‑‑Petitioners

Versus

N/Sub. (Retd.) MUHAMMAD IQBAL

through Legal Heirs and 5 others‑‑‑Respondents

Civil Revisions Nos.44‑D and 43‑D of 1986, heard on 1st June, 2001.

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Art. 144‑‑‑Specific Relief Act (I of 1877), Ss.42 & 54‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.42‑‑‑Adverse possession‑­‑Suit for declaration and permanent injunction‑‑‑Petitioners claimed ownership of suit land on the basis of entries in record of rights from 1939 onwards in favour of their predecessor as tenant without paying any rent to other owners due to his ownership, and in the alternative claimed ownership on the basis of maturity of title of their predecessor due to his adverse possession for more than 12 years‑‑‑Trial Court dismissed the suit and petitioners' appeal was also dismissed by Appellate Court‑‑­Validity‑‑‑Predecessor of petitioners had been shown as tenant‑at‑will in Column No.4 of record of rights for period from 1939‑40 to 1964‑65, and during such period, he had also been co‑sharer till he sold his share, and to the extent of share of other co‑sharers, he had been cultivating the suit land as their tenant‑‑‑Entry of in Column No.8 of Record .of Rights merely showed that he was not paying rent as he was also co‑owner, but it did not establish his ownership of the whole of suit land in exclusion of other shareholders‑‑‑Presumption was in favour of entries in column of ownership, and if predecessor of petitioners had become owner of suit land from 1939 onwards, then such fact would have been mentioned in some independent order or proceedings and in column of ownership as well‑‑‑Possession of petitioners' predecessor neither as co‑sharer nor as tenant without payment of rent for such period could be considered as adverse possession against his co‑sharers or owners of land.

(b) West Pakistan Land Revenue Act (XV11 of 1967)‑‑‑

‑‑‑‑S. 42‑‑‑Record of Rights "‑‑Conflict between entry in column of "Lagan" and ownership‑‑‑Effect‑‑‑Entry in column of ownership contradicting entry in column of "Lagan", in absence of any additional evidence, would give rise to presumption in favour of original owners entered in column of ownership.

Shafaullah and 13 others v. Saifur Rehman and 7 others PLD 1991 SC 1106 ref.

(c) Adverse possession‑‑‑

‑‑‑‑ Possession of land by co‑sharer cannot be considered as adverse possession against other co‑sharers, rather they will be deemed to be in possession of land through their such co‑sharer.

(d) Adverse possession‑‑‑

‑‑‑‑ Possession by tenant for a long period without payment of rent to landowners would not by itself mean that he was in adverse possession of land for such period against owners thereof.

Muhammad Anwar v. Sardar Khan and others 2000 YLR 401 ref.

Sardar M. Naseem Khan for Petitioners.

Tehmina Razzak Bhatti for Respondents.

Date of hearing: 1st June, 2001.

2002 M L D 155

[Lahore]

Before Sheikh Abdur Razzaq and Bashir A. Mujahid, JJ

SANA ULLAH KHAN and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1110 of 1996, Criminal Revision No. 37 and Murder Reference No.48 of 1997, heard on 23rd October, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)/34‑‑‑Appreciation of evidence‑‑‑Sentence, reduction of‑‑­Accused were nominated in the promptly recorded F. I. R. ‑‑‑Occurrence had taken place in daylight‑‑‑Parties were closely related inter se and there was no question of mistaken identity‑‑‑Eye‑witnesses whose presence at the spot at the relevant time had been established, could not be termed as interested and inimical due to their relationship with the deceased‑‑‑Ocular account of occurrence was consistent on material points‑‑‑Substitution of accused by letting off the real culprits did not appeal for reason‑‑‑Ocular evidence was sufficient to maintain the conviction of accused even without further corroboration‑‑‑Conviction of accused was upheld accordingly‑‑‑Was not certain that the injuries were caused to the deceased by, two persons with different guns of which benefit was to be extended to the accused‑‑‑Motive was also more to the deceased to take revenge from the complainant party‑‑‑Sentence of death of accused was reduced to imprisonment for life in circumstances in view of safe administration of justice‑‑‑Payment of compensation to the legal heirs of the deceased being a mandatory requirement of law, accused were directed to pay the same which had been ignored by the Trial Court.

Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660 and Nabi Bakhsh and another v. The State and others 1988 SCMR 213 ref.

Kh. Sultan Ahmed for Appellants.

M. Asghar Bokhari for Respondent.

Muhammad Aslam Malik for A.‑G. for the State

Date of hearing: 23rd October, 2001.

2002 M L D 167

[Lahore]

Before Karamat Nazir Bhandari, J

KHURSHID AHMAD and 3 others‑‑‑Petitioners

Versus

SAUDAGAR ALI ‑‑‑Respondent

Civil Revision No. 1177 of 1992, decided on 5th October, 2001., (a) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S.35‑‑‑Punjab Pre‑emption Ordinance (IX of 1991), S.36(1)‑‑‑Revival of suit‑‑‑Term "decided afresh"‑‑‑Connotation‑‑‑Term "decided afresh" had to be given liberal interpretation, so that it would provide for decision of cases on merits keeping in view facts and circumstances of each case‑‑‑Normally, the Court would recommence the proceedings from the stage at which the revived suit was dismissed‑‑‑If a suit was dismissed at the earliest stage without inviting written statement, then Court would have to start from that stage and invite written statement.

(b) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S.35‑‑‑Punjab Pre‑emption Ordinance (IX of 1991), S.36(1)‑‑‑Revival of suit‑‑‑Stage from which proceedings should recommence‑‑‑Trial Court on 21‑6‑1990 dismissed the suit, when the same was at the stage of recording rebuttal evidence and the statement of petitioners as per its order dated 18‑3‑1990‑‑‑Suit, after enforcement of Punjab Pre‑emption Ordinance, 1991 was restored on petitioners' application and adjourned to 8‑6‑1991, on which date Trial Court dismissed the same treating issue of "Talb" as preliminary and finding that no evidence had been led on such issue‑‑‑Appeal filed against decree was dismissed by Appellate Court‑‑‑Validity‑‑‑Trial Court had ignored that before dismissal of suit on 21‑6‑1990, the Court itself had allowed the petitioners to examine themselves and produce evidence in rebuttal‑‑‑To ensure that the case was "decided afresh" .as ordained by S.35 of Punjab Pre‑emption Act, 1991; or S.36 of Punjab Pre‑emption Ordinance, 1991, Trial Court oug1u to have taken notice of order dated 18‑3‑1990 on the file and must have fixed the case for rebuttal evidence and the statement of plaintiffs‑‑‑Trial Court had proceeded to decide the suit in a manner violative of the command to the effect that suit must be decided afresh‑‑‑High Court accepted the revision petition‑and set aside impugned judgments and decrees, and remanded the suit to Trial Court to decide it in accordance with law.

Government of N.‑W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 and Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287 ref.

Syed Muhammad Mohsin Zaidi for Petitioners.

Ras Tariq Javed Bajwa for Respondent.

Date of hearing: 26th September, 2001.

2002 M L D 185

[Lahore]

Before Abdul Shakoor Paracha, .l

Mian MOAZZAM‑UD‑DIN and others‑‑‑Petitioners

Versus

Haji SADIQ JILANI and others‑‑‑Respondents

Civil Revision No. 1818 of 1992, decided on 1st October, 2001.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S.17‑‑‑Civil Procedure Code (V of 1908), S.12(2)‑‑‑Challenge to award‑‑‑Remedy‑‑‑Proceedings of Trial Court making the award rule of the Court and the decree passed in consequence thereof could be challenged on the ground of fraud and misrepresentation by filing application under S.12(2), C.P.C.

Government of Sindh v. Ch. Fazal Muhammad and another PLD 1991 SC 197; Muhammad Yasin v. Sh. Hanif Ahmad and 4 others 1993 SCMR 437; Abdul Basit and another v. Muhammad Ashraf Dar and another 2000 CLC 920 and Nazir Ahmad v. Muhammad Sharif and others 2001 SCMR 46 ref.

(b) Arbitration Act (X of 1940)‑‑‑‑

‑‑‑‑Ss.30 & 33‑‑‑Objection to award‑‑‑Misconduct attributed to sole arbitrator was open to objection to be submitted at relevant time under the provisions of Arbitration Act, 1940.

(c) Arbitration Act (X of 1940)‑‑‑‑

‑‑‑‑Ss.17, 30 & 33‑‑‑Civil Procedure Code (V of 1908), S.12(2)‑‑­Challenge to award‑‑‑Remedy‑‑‑Proceedings making the award rule of the Court was challenged through application under S.12(2), C.P.C., on ground of fraud and misrepresentation‑ Trial Court dismissed the application being not maintainable‑‑‑Validity‑‑‑Application under S.12(2), C.P.C., was maintainable, and by dismissing the same Trial Court had not exercised jurisdiction vested in it and committed material irregularity and illegality‑‑‑High Court in exercise of revisional jurisdiction set aside impugned order and remanded case to Trial Court for decision of application under S.12(2), C.P.C., on merits.

Muhammad Akram Khawaja for Petitioners.

Ch. Inayatullah for Respondents.

Date of hearing: 1st October, 2001.

2002 M L D 193

[Lahore]

Before Abdul Shakoor Paracha, J

Mst. WAZIR BEGUM and others---Petitioners

versus

SAJJAD AHMED and others---Respondents

Civil Revision No. 1573 of 1990, heard on 28th September, 2001.

Punjab Pre-emption Act (I of 1913)---

----Ss. 4, 15 & 19---Qanun-e-Shahadat (10 of 1984), Art.114---Civil Procedure Code (V of 1908), S.115---Right of pre-emption ---Waiver--­Estoppel---Pre-emptor himself had admitted his presence at the time of sale and also that bargain was struck in his presence ---Vendee's witnesses were unanimous on the point that pre-emptor was present with the vendee at the time of sale---Finding of trial Court endorsed by Appellate Court that mere presence of pre-emptor did not constitute waiver was not correct---By clear conduct on the part of pre-emptor, it was proved on record that he was not interested in the purchase of suit property ---Pre-emptor having definite knowledge of sale had actually acquiesced in it by taking active participation in completion of sale in favour of vendee ---Right of pre-emption would not be available to pre­emptor, who through his conduct had waived such right---Concurrent findings of fact were based on misreading of evidence and misinterpretation of law of waiver and estoppel, thus, were liable to be set aside in exercise of revisional jurisdiction under S.115, C.P.C

Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 403; Amanat Ali and 3 others v. Haji Muhammad Ali 1984 CLC 362.; Muhammad Bakhsh v. Nisar Ahmad 1985 CLC 1974; Atta Muhammad v. Muhammad Aslam and others 1985 MLD 1535.- Muhammad Din through his Legal Heirs v. Taj Muhammad 1989 MLD 4319; Qamarud Din and 4 others v. Taj Muhammad 1989 MLD 3059; Baqri and 4 others v. Salehon and 3 others PLD 1972 SC 133; Fazal Ahmad and others v. Muhammad Akram 1988 CLC 1001 and Samar Gul and others v. Mohabat Khan and others 2000 SCMR 974 ref.

Altafur Rehman Khan for Petitioners.

Nemo for Respondents.

Date of hearing: 28th September, 2001.

2002 M L D 202

[Lahore]

Before Muhammad Farrukh Mahmud, J

Mst. ZUBAIDA BEGUM‑‑‑Petitioner

versus

ADDITIONAL DISTRICT JUDGE and others‑‑‑Respondents

Writ Petition No.7244 of 2001, decided on 29th August, 2001.

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

‑‑‑‑S.12‑‑‑"Hizanat", right of‑‑‑Contest between mother and grand­mother of minors‑‑‑Mother was a natural guardian and had a right of "Hizanat" vis‑a‑vis her minor daughters‑‑‑Mother being an educated lady and teacher by profession who had not remarried could easily meet expenses of bringing up of her daughters, whereas grandmother had no such qualifications except love and affection for the daughters of her deceased son‑‑‑No one could give love to children more than the mother‑‑‑Contention that both sisters should be distributed between the two claimants was a mechanical approach‑‑‑Separating two real sisters from each other would be too cruel‑‑‑Both the minors had a right to share the joy of childhood, and it would be in their welfare, if they were brought up under same roof and were not deprived of their mutual rove and affection.

Haji Muhammad Shafi and another v. Mst. Maqbool Afzal and others 1986 SCMR 1634 ref.

Ahmad Yar Rafi for Petitioner.

2002 M L D 224

[Lahore]

Before. Jawwad S. Khawaja, J

RAZA MEHDI and- another---Petitioners

versus

THE STATE and 3 others---Respondents

Criminal Miscellaneous No.315-Q of 2000, decided on 15th February, 2001.

Penal Code (XLV of 1860)---

----Ss. 420/406---Criminal Procedure Code (V of 1898), S.5'61-A--­Quashing of FA.R.---F.I.R. was registered at a belated stage and the contents thereof did not make out a case of breach of trust---Dispute between the accused and the complainant relating to money was of civil nature which could only be adjudicated upon by a competent Civil Court ---F.I.R. in question, in the circumstances, amounted to abuse of legal process and the same was quashed accordingly.

Shahid Ikram Siddiqui for Petitioners

Javaid Aslam Qureshi for Respondent No.4.

Ijaz Ahmed Chaudhry, Addl. A.-G. with Muhammad Kamran Malik for the State.

2002 M L D 240

[Lahore]

Before Ijaz Ahmad Chaudhary, J

DASTGIR‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No. 5450‑B of 2001, decided on 10th October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss.406/468/471‑‑‑Pre‑arrest bail, confirmation of‑‑‑Case of the accused was that he being ex­-servant of the complainant had to receive from the complainant certain amount and that he having left the job, the complainant who was his ex‑employer had falsely implicated him in .the case simply to avoid payment of amount due towards the complainant‑‑‑Prima facie the case of the accused seemed to be of a civil nature which had been converted into a criminal case‑‑‑Accused had succeeded in making out a case for his false involvement with mala fide intention and ulterior motive‑‑‑Bail before arrest already granted to the accused, was confirmed in circumstances.

Muhammad Ramzan Chaudhry for Petitioner.

Mian Khalid Hussain for the State.

2002 M L D 249

[Lahore]

Before Ch. Ijaz Ahmad, J

ABID HUSSAIN alias ABID KAREEM‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous Nos.802/B/(BWP) and 360/B/(BWP) of 2001, decided on 4th October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10(2) & 11‑‑‑Bail, grant of‑‑‑Name of the accused was mentioned in the F.I.R. and specific role was attributed to him with specific motive of offence of abduction of the lady who was daughter of the complainant‑‑‑Victim was abducted by the accused when he was armed with gun‑‑‑Statement recorded by the Investigating Officer under 5.161, Cr.P.C. had connected the accused with the commission of offence‑‑‑Alleged Nikah of the accused with the abductee was performed subsequently in the presence of existence of previous legal Nikah of the abductee with her husband' and second Nikah could not be performed without obtaining divorce from the previous husband in accordance with Injunctions of Islam‑‑‑In absence of divorce from the previous husband, the accused who alleged his Nikah with the abductee, was proved to be guilty of offence of Zina‑‑‑Mere filing of suit for jactitation by the abductee against her husband was not a ground to grant bail to the accused‑‑‑Principle of consistency was also not attracted in the case as the co‑accused were granted bail as they were found innocent by the Investigating Officer whereas the accused was found to be guilty‑‑‑Medical ground was also not available to the accused as Medical Officer had referred the matter to hospital for the treatment of the accused‑‑‑Accused was not entitled to grant of bail in circumstances.

Zareen Khan v. The State 1980 SCMR 305 ref.

Kh. Ehsan‑ul‑Haq Sajid for Petitioner.

Muhammad Nawaz for the Complainant.

Malik Akhtar Hussain Awan, A.A.‑G.

2002 M L D 256

[Lahore]

Before Ijaz Ahmad Chaudhary, J

ZAHID SHAHZAD‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal. Miscellaneous No.3380‑B of 2001, decided on 1st October, 2001.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.380, 411 &. 458‑‑‑Bail, grant of‑‑‑Accused were involved in a case of serious nature‑‑­Allegations against the accused were that they entered into a house when ladies were alone in the house and after terrorising them on pistol‑point snatched away jewellery of heavy amount from them‑‑­Accused who were also involved in other criminal cases had failed to point out any reason for their false implication in the present case‑‑­Discretionary relief of bail could not be granted to the accused who were involved in a case of heinous offence‑‑‑Statutory ground was also not available to the accused as nature of case against them had shown that they were hardened criminal persons and their involvement in other cases would disentitle them to grant of bail‑‑­Bail application of the accused was dismissed and bail already granted to the co‑accused was cancelled.

NLR 1992 Cr.C.529 ref.

Muhammad Zubair Khan, Advocate.

Ghulam Asghar for the State.

Rana Muhammad Afzal (for M. Imran) for Petitioner.

2002 M L D 262

[Lahore]

Before Ijaz Ahmad Chaudhary, J

AZAM HUSSAIN ‑‑‑Petitioner

versus

THE MEMBER (COLONIES), BOARD OF REVENUE, PUNJAB, LAHORE and 4 others‑‑‑Respondents

Writ Petition No. 12613 of 2001, decided on 4th October, 2001.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Public auction‑‑‑Enhancement of bid before High Court‑‑‑Privatization Board put State land to public auction‑‑‑Highest bid received was for a sum of Rs.16,00,000‑‑‑Petitioner being in possession of the land as lessee claimed to have been granted proprietary rights as per Government policy‑‑‑Petitioner assailed the auction proceedings being illegal, void and ultra vines‑‑‑During the proceedings of Constitutional petition before High Court the petitioner and the highest bidder started bidding and the bid was raised from Rs.16,00,000 to Rs.43,70,000 by the highest bidder‑‑‑Validity‑‑‑Public functionaries were bound to keep in mind the interest of the country and the nation and were bound to be above personal interest‑‑‑High Court directed the Privatization Board to take into consideration the amount which had been enhanced by the efforts made by the Court‑‑‑High Court also took notice of the fact that how the Government property was being sold on cheaper rates and warned the Authorities to be careful in future and not to sell the Government property on cheaper rates‑‑­Authorities were further directed to ensure that all steps would be taken by them and the properties of the Government would be sold as per market prices‑‑‑Petition was disposed of accordingly.

Malik Noor Muhammad Awan for Petitioner.

Zahid Farani Sheikh; A.A.‑G. for Respondent.

Muhammad Ayub, Secretary, Punjab Privatization Board.

Ali Hasnin, Law Officer, PPB.

2002 M L D 284

[Lahore]

Before Ijaz Ahmad Chaudhary, J

MUHAMMAD TARIQ ZAKHMI and another---Petitioners

Versus

ELECTION TRIBUNAL/DISTRICT AND SESSIONS JUDGE, HAFIZABAD and 13 others---Respondents

Writ Petition No. 14679 of 2001, heard on 12th October, 2001.

(a) Punjab Local Government Elections Rules, 2000---

----Rr. 39(5), 40(6) & 71---Recounting of votes---Recording of evidence whether a mandatory requirement---Where election petition was filed in which specific allegations had been levelled that the votes had not been correctly counted by the Presiding Officers and valid votes had been rejected illegally and unlawfully, recounting could be ordered in circumstances.

Muhammad Asim Kurd alias Galoo v. Nawabzada Mir Lashkari Khan Raisani and 11 others 1998 SCMR 1597 ref.

(b) Punjab Local Government Elections Rules, 2000---

----Rr. 39(5), 40(6) & 71---Re-counting of votes---Recording of evidence---Principle---Where no allegation of tampering with of the votes after the election had been levelled by the petitioner, there was no need for recording of evidence before passing order for re­counting of the votes.

(c) Punjab Local Government Elections Rules, 2000---

----Rr. 39(5), 40(6) & 71---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Election dispute---Re-counting of votes---Non-recording of evidence---Election petition was filed against returned candidate, in which specific allegations had been levelled that the votes of the unsuccessful candidates had not been correctly counted by the Presiding Officers and valid votes had been rejected illegally and unlawfully---Election Tribunal passed order for re-counting of votes and directed the unsuccessful candidate to deposit a sum of Rs.20,000 as security---Validity---Where the unsuccessful candidate contended that the votes had not been correctly counted, the order passed by the Election Tribunal did not suffer from any illegality or infirmity---High Court declined to interfere with the order passed by the Election Tribunal--­Constitutional petition was dismissed in circumstances.

Kanwar Ijaz Ali v. Irshad Ali and 2 others PLD 1986 SC 483; Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another PLD 1986 SC 542; Zulfiqar Ali v. Election Tribunal/Civil Judge 1st Class, Khanpur and 5 others 2000 MLD 746 and Julius Salik v. Returning Officer and others 1991 MLD 589 ref.

Muhammad Asim Kurd alias Galoo v. Nawabzada Mir Lashkari Khan Raisani and 11 others 1998 SCMIt 1597 ref.

Ch. Shaukat Rafique Bajwa for Petitioners.

Muhammad Ahsan Bhoon and Sh. Mumtaz Hussain for Respondent No. 3.

Rana Javed Iqbal for the Remaining Respondents.

Date of hearing: 12th October, 2001.

2002 M L D 290

[Lahore]

Before Ali Nawaz Chowhan, J

Mst. ASMA NADEEM---Petitioner

versus

INTERNATIONAL ISLAMIC UNIVERSITY and others---Respondents

Writ Petition No. 3136 of 2001, decided on 30th November, 2001.

(a) Educational institution---

----Non-awarding of degree---Despite issuance of result notification, University declined to issue degree to the candidate---Contention of the University was that at the end of the notification a note had been affixed whereby the candidate was informed that the notification was not the final result and errors and omissions were expected--­Validity---No prestigious University would issue such-like warnings on its notifications because it was expected that before the university would issue a notification, all errors were found to be non-existent--­Error as envisaged by such note would be construed an arithmetical error and not an error of policy---Where the candidate had qualified her examination and result notification had been issued in her favour declaring her to be successful, High Court directed the University to award her degree in terms of its own notification---Constitutional petition was allowed in circumstances.

(b) Educational institution

--Withholding of degree---Locus poenitentiae, principle of--­Applicability---After issuance of result notification and other connected letters declaring the candidate successful for awarding of degree, the University had no legal justification for withholding of degree---Principle of locus poenitentiae could not be pressed into service in circumstances.

Iqtadar Karamat Cheema v. The University of the Punjab through Vice-Chancellor, Lahore and 4 others 2000 CLC 1589; Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another 1997 SCMR 15 and Mrs. Kulsoom Ara v. The Controller of Examination, University of the Punjab, Lahore PLD 1995 Lah. 520 ref.

Mian Abdul Rauf for Petitioner.

Rehan-ud-Din for Respondents.

2002 M L D 296

[Lahore]

Before Nasim Sikandar and Mansoor Ahmad, JJ.

COLLECTOR OF CUSTOMS, MULTAN‑‑‑Appellant

versus

MUHAMMAD TASLEEM‑‑‑Respondent

Civil Appeal No.4 of 1998 (Previous Civil Appeal No.253 of 1997), decided on 16th October, 2001.

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 181, provisos [as added by Finance Act (VII of 1992)] & 223‑­‑Order issued by Central Board of Revenue‑‑‑Validity‑‑‑Order issued by the Central Board of, Revenue in exercise of the powers conferred by the two provisos of S. 181 of the Customs Act, 1969, [as added by Finance Act (VII of 1992)] is not an instruction nor an order to the Officer which he is obliged to observe under S.223 of the said Act-‑­Such order can be read as part of S.181 of the Customs Act, 1969, and has the force accordingly.

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S.223, proviso‑‑‑Direction/instruction given by Central Board of Revenue‑‑‑Status and scope ‑‑‑Provisions of proviso to S.223 of the Customs Act, 1969‑‑‑Applicability‑‑‑Section 223, proviso, Customs Act, 1969 is attracted only when the direction or instruction given by Central Board of Revenue interferes with the discretion of appropriate Officer of Customs in exercise of this quasi‑judicial functions‑‑­Where Central Board of Revenue does not figure in the hierarchy of the forums provided for adjudication of assessees' liabilities to tax, any interpretation of law by Central Board of Revenue cannot, be treated as a pronouncement by a forum competent to adjudiate upon‑‑‑Instructions issued by the Central Board of Revenue are binding as long these are confined to administrative matters.

Central Insurance Company v. C.B.R. 1993 PTD 766 ref.

(c) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 181 & 219‑‑‑Power vested in Central Board of Revenue‑‑­Scope‑ ‑‑Power of Central Board of Revenue under S.181 of the Customs Act, 1969, though apparently similar to one vested in ii under 5.219 of the Customs Act, 1969 (power to make rules) is nevertheless clearly distinctive‑--‑Firstly the power is not subject to the conditionalities of S.219 of the Customs Act, 1969; secondly, under 5.181 of the Customs Act. 1969, the Central Board of Revenue exercises a power to make an order which by reason of its specific mention in the body of the provision, stands at a higher pedestal than a rule framed under S.219 of the Customs Act, 1969‑‑‑Once order is validly made, it partakes the colour and credibility of a statutory instrument‑‑‑Such order represents the blend of z subordinate legislation with the superior legislation which is not separable.

(d) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 181, 194‑A & 196‑‑‑Order issued by Central‑Board of Revenue under S.181 of the Customs Act, 1969‑‑‑Object and scope ‑‑‑ Such order is binding upon the appropriate officer directing confiscation of goods and is also binding both when it specifies the goods where such option is not to be given as also when it fixes the amount of fine which in lieu of Confiscation is to be imposed‑‑‑Appellate Tribunal cannot directly or indirectly allow a relief which the appropriate officer cannot give to the assessee‑‑‑In order to regulate system in the perspective of financial or social requirements of people of the country, provisos to 5.181 of the Customs Act, 1969 allow discretion to the executive limb of State‑‑‑Order so made reflects the policy of the State, and, therefore, neither the departmental officer nor the Tribunal can deviate from the same‑‑‑High Court in its appellate jurisdiction under S.196 of the Customs Act, 1969, can also not allow a relief which the original officer cannot grant in view of any provisions of the Act‑‑‑Although the appellate jurisdiction of the Tribunal under S. 194‑A of the Customs Act, 1969, has been couched in all embracing terms and words, nevertheless; being a creature of statute it cannot travel beyond the statute to declare directly or indirectly any of the provisions to be illegal or inapplicable where these are clearly attracted.

(e) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S.181, proviso‑‑‑Order issued by Central Board of Revenue‑‑­Relief against such order‑‑‑Jurisdiction of Customs Authorities‑‑­Scope‑‑‑Customs Appellate Tribunal cannot, in cases covered by the first proviso to 5.181 of the Customs Act, 1969, give a relief against the order of the Central Board of Revenue merely for the reason that after confiscation the goods will be sold through auction and will therefore, find their way to the market‑‑‑‑Such approach is not correct in. a number of cases where the imported consignment will invariably be destroyed being offensive to the human health, morality or tranquillity‑‑‑Giving such relief can also not be seen with favour as it is likely to encourage unscrupulous entrepreneurs.

(f) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 181 & 223‑‑‑Provisions of Ss. 181 & 223 of the Customs Act are not in conflict with each other‑‑‑Discretion to appropriate officer is allowed by S.181 of the Customs Act, 1969, while the provisos to the section control that discretion‑‑‑Where law itself provides for a control on the discretion of appropriate officer, any order issued by Central Board of Revenue under any of the two provisos of S.181 cannot in any manner be said to be an interference with the discretion of an adjudicating authority.

(g) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss.181 & 194‑B‑‑‑Order passed by Central Board of Revenue‑‑­Confiscation of goods by Customs Authorities‑‑‑Part of the jurisdiction of the Tribunal conferred under 5.194‑B of the Customs Act, 1969, cannot be made as redundant by proviso to S.181 of the Customs Act, 1969‑‑‑Tribunal still has the jurisdiction to rule, if the goods are liable to be confiscated for the reasons given by the appropriate officer‑‑‑Once the Tribunal comes to the conclusion that the goods are liable to be confiscated, it cannot interfere with the order of the appropriate officer made in the light of an order by the Board specifying the goods or class of goods where option of payment of fine is not to be given.

(h) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S.181‑‑‑Option to pay fine in lieu of confiscated goods‑‑‑Bona fide purchaser without notice‑‑‑Principle‑‑‑Burden to prove‑‑‑Vehicles without customs duty were confiscated by Customs Authorities and no option as provided‑‑in S.181 of the Customs Act, 1969, was given to the vehicle owners‑‑‑Customs Authorities had maintained the findings of fact that the owners had not been, able to establish "lawful import of the vehicles"‑‑‑Validity‑‑‑High Court also agreed with the Customs Appellate Tribunal that principle of "bona fide purchaser in good faint and without notice" was not applicable to the goods confiscated under the, provisions of Customs Act, 1969‑‑‑Tribunal had rightly accepted the plea of burden of proof as canvassed by the Customs Authorities‑‑‑Appeal was decided accordingly.

Abdur Rauf Khan v. Collector, Central Excise and Land Customs 1980 SCMR 114 fol.

Sh. Izhar‑ul‑Haq for Appellant.

Nemo for Respondent.

Date of hearing: 16th October, 2001.

2002 M L D 307

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD ISMAIL and 2 others‑‑‑Petitioners

versus

BASHIR AHMED and 6 others‑‑‑Respondents

Writ Petition No. 430 of 1988, heard on 8th February, 2001.

Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑Ss. 10 &. 11‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Implementation of order passed by High Court in Constitutional petition‑‑‑Land allotted to respondent was cancelled by Settlement Authorities on Mukhbari application filed by the petitioner‑‑‑Such order of cancellation of allotment was set aside by High Court‑‑‑Settlement Authorities in compliance of the order passed by High Court, re‑allotted the land to the respondents‑‑‑Validity‑‑‑Where the land had been allotted to the respondents in lieu of their verified Produce Index Units, the question of taking away of land did not arise‑‑ ‑Settlement Authorities had rightly implemented the order passed by High Court‑‑‑Constitutional petition was dismissed in circumstances.

M. Sultan Wattoo for Petitioners.

M. Maftuh‑ur‑Rahim for Respondents.

Date of hearing: 8th February, 2001.

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2002 M L D 351

[Lahore]

Before Muhammad Sair Ali, J

WALI MUHAMMAD and 4 others‑‑‑Appellants

versus

MUHAMMAD ASHRAF‑‑‑Respondent

Regular Second Appeal No. 61 of 1984, decided on 5th October, 2001.

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

‑‑‑‑S. 100‑‑‑Second appeal‑‑‑Failure to assail finding of Trial Court on specific issue‑‑‑Effect‑‑‑Where neither appeal was filed against the specific finding on any issue nor any cross‑objection was filed, observation of Trial Court on such issue became final and the same could not be agitated through second appeal.

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 21‑‑‑Partial pre‑emption ‑‑‑Scope‑‑‑Ordinarily partial pre‑emption is not allowed and pre‑emptor must seek pre‑emption of entire land under sale and pay the entire price as paid by vendees‑‑‑Pre‑emptor is mandated by law to take the whole bargain‑‑‑Exceptions and limitations to the principle of law are extremely limited and narrow‑‑‑Deviations from the general rule have been allowed only in extraordinary and restricted circumstances.

PLD 1973 SC 444 and Malik Hussain and others v. Ram Jaridar and others PLD 1970 SC 299 ref.

(c) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 21‑‑‑Civil Procedure Code (V of 1908), S.100‑‑‑Second appeal‑‑­Partial pre‑emption ‑‑‑Deviation from general rule ‑‑‑Applicability‑‑‑Non­pleading of principle of partial pre‑emption ‑‑‑Trial Court having not found the superior right of pre‑emption, dismissed the pre‑emption suit filed by the pre‑emptor ‑‑‑Appellate Court reversed the findings of the Trial Court and partially decreed the suit‑‑‑Validity‑‑‑Examination of pre‑emptor's plaint, and his evidence did not reveal that he either pleaded, asserted or deposed to avail a right of partial pre‑emption on the basis of necessity in terms of any of the allowed exceptions of the general rules‑‑‑Rule of necessity could not be extended to a pre‑emptor as an endowment or gift of partial pre‑emption without showing reasons, basis and justification to allow him the exceptionality from the‑ general rules‑‑‑Appellate Court in the present case was not justified to allow partial pre‑emption to the pre‑emptors ‑‑‑Judgment and decree passed by the Lower Appellate Court were set aside and the suit was dismissed‑‑­Appeal was allowed accordingly.

PLD 1990 SC 299; PLD 1968 SC 140 and PLD 1981 SC 153 ref.

(d) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4 & 21‑‑‑Suit for partial pre‑emption ‑‑‑Divisible sale‑‑‑Condition and prerequisites‑‑‑Court to find out whether a sale is divisible ‑is to see two things viz. whether share of each vendee is specified and whether the proportion of price contributed or paid by each vendee is indicated separately‑‑‑Where any of the two ingredients is lacking, then the sale remains one joint individual sale and suit for pre‑empting share of only one vendee is not maintainable as in the absence of specification of separate sale price paid by each vendee, the unity of such a sale cannot be broken‑‑‑Suit for partial pre‑emption with regard only to a part of suit land cannot be maintained in circumstances.

Ch. Qadir Bakhsh for Appellant.

Ch. Muhammad Abdullah for Respondent

Date of hearing: 19th June, 2001

2002 M L D 357

[Lahore]

Before Naseem Sikandar and Mansoor Ahmad, JJ

AL SHAMS SOAP AND CHEMICAL INDUSTRIES (PVT.) LTD., LAHORE‑‑‑Petitioner

versus

CUSTOMS, CENTRAL EXCISE AND SALES TAX APPELLATE TRIBUNAL, LAHORE and another‑‑‑Respondents

Civil Miscellaneous No. 589 of 2001 in Customs Appeal No. 6 of 2000, heard on 18th September, 2001.

(a) Central Excises Act (I of 1944)‑‑‑

‑‑‑‑S.36‑C‑‑‑Central Excise Rules; 1944, Rr.7, 9, 43, 52, 52‑A, 26, 198, 236, 237, 244 & 246‑‑‑Seizure of goods and imposing of penalty‑‑­Appeal‑‑‑Tribunal did not consider the arguments put forth and did not address itself to the issues earlier framed by it‑‑‑Operative part of the order of the Tribunal had borne witness to the fact that the Tribunal did not apply its mind either to the facts of the case or to the contentions raised before it‑‑‑Operative part of the order, in fact, was so general in nature that it could be suffixed to any kind of facts falling for determination of a judicial or quasi‑judicial forum‑‑‑Tribunal as a final fact‑finding forum must have supported its agreement with the order of the Collector by reasons because that was the only way that it could show that justice was being done to an aggrieved party, but that had not been done‑‑‑Tribunal though was not required to record detailed reasons when it was in agreement with the finding of the forum below, but it must record its reasons for agreement in the perspective of the grounds taken before it‑‑‑Mere desire not to interfere with the order of the Departmental Authorities or the forum below, would mean nothing and that desire must have some rationale‑‑‑Order of the Tribunal was set aside and case remanded to decide afresh after taking into consideration both factual as well as legal grounds which would be raised by the appellants before it.

(b) Practice and procedure‑‑‑

‑‑‑‑ Appellate forum though was not required to record detailed reasons when it was in agreement with the finding of the forum below, but it must record its reasons for agreement in the perspective of the grounds taken before it‑‑‑Mere desire not to interfere with the order of the Departmental Authorities or the forum below would mean nothing and that desire must have some rationale.

Syed Ali Zafar and Haider Zaman Qureshi for Appellant.

Syed Jawher Ali Naqvi for Respondent.

Date of hearing:‑ 18th September, 2001.

2002 M L D 363

[Lahore]

Before Sheikh Abdur Razzaq, J

FAZAL DIN and 9 others‑‑‑Petitioners

versus.

ADDITIONAL DEPUTY COMMISSIONER (GENERAL)/ADDITIONAL SETTLEMENT COMMISSIONER LANDS, RAHIMYARKHAN and 5 others‑‑‑Respondents

Writ Petition No.315 of 1987/BWP; heard on 25th April, 2001.

(a) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑

‑‑‑‑S.2‑‑‑Expression "pending cases"‑‑‑Case remanded by High Court is also to be treated as pending case.

(b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑

‑‑‑‑S.2‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Cancellation of allotment in year 1987‑‑‑Petitioners were allotted land in year 1958, in lieu of their verified claims‑‑‑Since the allotment, the petitioners were in possession of the land‑‑‑Settlement Authority initiated inquiry, against the allotment of the petitioners in the year 1986, and passed order for cancellation of the allotment in the year 1987‑‑‑Validity‑‑‑Settlement Authority could only exercise its power, had the case been pending in the year 1986, or the case had been remanded by High Court‑‑‑Where neither the case was pending, nor the same was remanded. Settlement Authority had no jurisdiction either to entertain or to pass any order in respect of land allotted to the petitioners‑‑‑Order of cancellation of allotment was coram non judice and was not, sustainable in the eyes of law.

Sardar Wahid Ali v. Abdul Shakoor and 2 others 1999 CLC 858 and Mst. Bushra Begum v. Settlement Commissioner and 5 others 1998 MLD 442 rel.

Municipal Committee, Multan through its Chairman v. Burmah Shell Storage and Distributing. Co. of Pakistan Ltd. and another PLD 1976 Lah. 71,6; Chief Land Commissioner, Punjab, Lahore v. Makhdotim Syed Nazar Hussain Shah and 13 others 1975 SCMR 352; Muhammad Yousuf v. The Additional Deputy. Commissioner (Collector), Peshawar and others 1972 SCMR 613; Tanvir Ahmad Siddiky v. Province of East Pakistan PLD 1968 SC 185 and Sultan Hassan Khan and 2 others v. Mst. Nasim Jahan and 17 others 1994 SCMR 150 ref.

Muhammad Jaffar Hashmi for Petitioner.

M.A. Farazi for Respondent No. 1.

Muhammad Mahmood Bhatti for Respondents Nos.2 to 6

Date of hearing: 25th April, 2001.

2002 M L D 375

[Lahore]

Before Muhammad Sair Ali, J

MAQBOOL HUSSAIN ‑‑‑Petitioner

versus

AHMAD ZAMAN KHAN‑‑‑Respondent

Civil Revision Petition No.365‑D of 1988, decided on 8th August, 2001

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

‑‑‑‑O.XX, Rr. 5, 9 & 12‑‑‑West Pakistan Land Ravenue Rules, 1968, R.67‑A‑‑‑Suit for possession and mesne profits‑‑‑Respondents claimed that petitioner had raised unauthorised construction over the suit land‑‑­Petitioner filed wtitten statement resisting the suit on several grounds including misdescription of suit land, which gave rise to framing of 8 issues in the case‑‑‑Respondent produced in evidence copies of Register Haqdaran‑e‑Zamin, Report of demarcation proceedings and Naqsha demarcation‑‑‑Trial Court decided three issues in favour of respondent and decreed the suit while leaving remaining issues undecided for want of evidence thereupon‑‑‑Appellate Court dismissed appeal filed by petitioner‑‑‑Validity‑‑‑Such documents could be termed as titled documents proving ownership of respondent‑‑‑Copy of Register Haqdaran‑e‑Zamin produced in evidence was photocopy and was inadmissible in evidence‑‑‑Demarcation report and Naqsha had been prepared at the back of petitioner without notice to him, which could not be relied upon for decision of controversy of title and description of suit land between the parties‑‑‑Respondent had not produced in evidence application for demarcation to show parties thereto, notices served upon petitioner to prove his participation in demarcation proceedings nor had summoned concerned Revenue Officer or record from Revenue Office to prove due compliance with mandatory provisions of R. 67‑q of West Pakistan Land Revenue Rules, 1968‑‑‑Respondent, after making general statement in examination‑in‑chief, had denied knowledge of each and every fact put to him including description/identity/boundaries of suit land, petitioner's alleged occupation, modalities of demarcation and service of notice‑‑‑Courts below had not considered evidence of petitioner in support of his case‑‑‑Record showed existence of adequate material and evidence for resolution of issues left undecided by Courts below, who had thus, failed to comply with mandatory provision of O.XX, R.5, C.P.C.‑‑‑Courts below had not only failed to exercise jurisdiction vested in them, but had also exceeded .their jurisdiction in passing impugned judgments and decrees‑‑‑High Court remanded the case to Trial Court for its fresh decision in accordance with law.

(b) West Pakistan Land Revenue Rules, 1968‑‑‑

‑‑‑‑R. 67‑A(4)(c)(5)‑‑‑Demarcation of land‑‑‑Service of notice mandatory‑‑‑Before starting demarcation proceedings, under sub­rule 4(c) of R. 67‑A of the Rules, 1968, Revenue Officer shall cause a notice in Form 33‑B to be issued to the parties to application and to any other person whose presence is considered by him necessary‑‑‑Service of such notice is mandatory under sub‑rule (5) of R.67‑A.

Munir Ahmad Khan for Petitioner.

Muhammad Akhtar Khan for Respondent.

Date of hearing: 24th July, 2001.

2002 M L D 384

[Lahore]

Before Abdul Shakoor Paracha, J

SABIR ALI SHEIKH‑‑‑Appellant

versus

Haji NAWAB DIN‑‑‑Respondent

First Appeal from Order No.47 of 2000, decided on 10th September, 2001.

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

‑‑‑‑S.2(j)‑‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.2(i)‑‑‑Sindh Rented Premises Ordinance (XVII of 1979), S.2(j)‑‑‑"Tenant"‑‑‑Connotation‑‑‑Relationship of landlord and tenant clearly envisages a bilateral relationship arising from contract between landlord and tenant or from a Statute‑‑‑Tenancy is not a unilateral relationship, but it depends upon the consent of both the landlord and tenant.

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

‑‑‑‑Ss.2(c) & 17‑‑‑Eviction of tenant‑‑‑Title to property, proof of‑‑­Person basing his claim on the right to receive rent of the property would have to satisfy the Rent Controller about his title with respect to it.

Ahmed Shah v. Mst. Bibi Sakhian and another PLD 1990 Lah. 48; Ghazi Inam Nabi Pardesi and 15 others v. Dr. Maj. Syed Ahmed Hassan and another PLD 1975 Kar.530; Rehmatullah v. Ali Muhammad and another "1983 SCMR 1064 and Province of the Punjab through Education Secretary and others v. Mufti Abdul Ghani PLD 1985 SC 1 ref.

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

‑‑‑‑S.17‑‑‑Ejectment petition‑‑‑Denial of relationship of landlord and tenant on basis of agreement to sell‑‑‑Effect‑‑‑Tenant could not be protected from ejectment merely by asserting agreement to sell in his favour or filing the suit for specific performance, unless sale‑deed was executed in his favour and agreement to sell had been enforced.

Ch. Muhammad Aslam Zia for Appellant.

Nemo for Respondent.

Date of hearing: 10th September, 2001.

2002 M L D 393

[Lahore]

Before Muhammad Nawaz Abbasi, J

HASSAN JAMEEL‑‑‑Petitioner

versus

THE BOARD OF TRUSTEES through Chairman, (Additional Secretary) Cabinet Division, Islamabad and 3 others‑‑‑Respondents

Writ Petition No. 1216 of 2001, decided on 18th July, 2001.

Abandoned Properties (Taking Over and Management) Act (XX of 1975)‑‑‑

‑‑‑‑Ss.13 & 14‑‑‑Constitution . of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Abandoned property pool‑‑‑Inclusion of property in the pool‑‑‑Petitioner claimed to be owner of the disputed plot of land as the same was purchased by his father from a Bengali national before 16‑12‑1971, to whom it was allotted‑‑‑Only document produced by the petitioner in support of his claim was agreement to sell and no other title document was produced‑‑‑Application qua such claim was not filed till 17‑8‑1998‑‑‑Petitioner initially moved to Capital Development Authority for transfer of the disputed plot on 5‑9‑1975 i.e. about six months after promulgation of Abandoned Properties (Taking Over and Management) Act, 1975, and subsequently on coming to know that the plot was being managed as abandoned property, the petitioner moved application to the Authorities first time in the year 1998‑‑‑Petitioner to prove his title produced special power of attorney and affidavit executed by the allottee through official agencies of Bangladesh Government and Government of Pakistan‑‑‑Validity‑‑‑Mere fact that the application was moved to the Capital Development Authority for transfer of plot and subsequently the documents were sent to the petitioner through the official agencies of the two Governments would not be proof of genuineness of the transaction of sale‑‑‑Special Power of Attorney and the affidavit of the allottee would be of no consequence unless it would be proved that the same were in the hands of the allottee and the sale took place before 16‑12‑1971‑‑­Attestation of the documents by Magistrate at Dacca would not ipso facto be an evidence of correctness of transaction of sale‑‑‑Where the essential fact relating to the genuineness of the transaction of sale was not proved by the petitioner through evidence, the findings of fact arrived at by the Board of Trustees not suffering from misreading and non‑reading of evidence, could not be challenged before High Court under its Constitutional jurisdiction‑‑‑Finding on pure question of fact given by competent forum in appeal even if erroneous would not be interfered with by High Court in exercise of its jurisdiction under Art. 199 of the Constitution‑‑‑High Court declined to interfere with the findings of the Authorities‑‑‑Constitutional petition was dismissed in circumstances.

Inayat Hussain Naqvi v. Board of Trustees and another PLD 1980 Kar. 399 and 1987 MLD 558 ref.

Ch. Afrasiab Khan for Petitioner.

Ch. Altaf Ahmad for Respondents.

Mrs. Naheeda Mehboob Elahi for the Intelligence Bureau.

2002 M L D 403

[Lahore]

Before Naseem Sikandar and Mansoor Ahmad, JJ

Messrs LAHORE POLY PROPYLENE' INDUSTRIES‑‑‑Appellant

versus

ADDITIONAL‑COLLECTOR (ADJUDICATION) CENTRAL EXCISE COLLECTORATE‑‑‑Respondent

Civil Appeals Nos.297 to 302 of 2001, decided on 27th September, 2001.

Central Excise Rules; 1944‑‑‑

‑‑‑‑R.10(1)‑‑‑Limitation Act (IX of 1908), Art. 15‑‑‑Non‑payment of central excise duty‑‑‑Show‑cause notice‑‑‑Limitation‑‑‑Limitation prescribed under a general or special statute such as R.10(1) of Central Excise Rules, 1944, would operate both for the assessee as well as for the department ‑‑‑Assessees in the present case, had challenged levy which was finally found justified‑‑‑Plea of the assessees that interim relief allowed to them by the High Court ultimately operated to frustrate the levy for the period in question could not be granted, firstly as act of the Court could not operate to the prejudice of any of the parties including the department, secondly such an interpretation would amount to negating not only the final order passed by the High Court, but the Supreme Court as well.

Zahur Textile Mills v. Federation of Pakistan PLD 1999 SC 880 ref.

Noman Akram Raja for Petitioner.

A. Karim Malik for the Revenue.

2002 M L D 406

[Lahore]

Before Maulvi Anwarul Hack, J

NIAMAT ALI through Attorney ---Petitioner

versus

Mst. AISHA BIBI and 7 others---Respondents

Writ Petitions Nos. 10287 and 10286 of 1995, heard on 12th October, 2001.

West Pakistan Land Revenue Rules, 1968---

----R.67-B---Constitution of Pakistan (1973), Art.199---Constitutional petition--Demarcation of land---Proper procedure---Private respondents were dispossessed from land as a result of demarcation proceedings conducted in their absence---Appeal filed by respondents before Additional Commissioner was accepted, whereas revision petition filed by petitioner before Board of Revenue was dismissed ---Validity---Rule 67-B of West Pakistan Land Revenue Rules. 1968, provides that after filing of application for demarcation of land and after notice to the parties, validity and correctness of and report ought to be considered--­:d to dispossess the respondents without adopting such procedure, Additional Commissioner and Member, Board of Revenue had rightly found such proceedings to be coram non judice---High Court dismissed the Constitutional petition with a direction to Collector to immediately restore the possession of respondents and thereafter proceed in the matter in accordance with direction contained in the order of Additional Commissioner.

A.G. Tariq Chaudhry for Petitioner.

Nemo for Respondents.

Date of hearing: 12th October, 2001.

2002 M L D 414

[Lahore]

Before Mian Saqib Nisar, J

PROVINCE-OF PUNJAB through Secretary to Government of the Punjab, Communication and Works Department, Lahore and 2 others---Appellants

versus

Messrs USMAN AND SONS through Managing Director and others---Respondents

First Appeals from Order Nos.238, 239 and 240 of 2000, heard on 3rd October, 2001.

Arbitration Act (X of 1940)---

----Ss. 14(2), 17 '& 39---Limitation Act (IX of 1908), Art. 158---Civil Procedure Code (V of 1908), O.XXVII, R.4---Filing award in Court for making the same rule of the Court---Objections to the award--­Limitation---Objections were rejected by the Trial Court ' holding the same to- be barred by time having been filed after thirty days of the notice of filing the award in view of Art. 158 of Limitation Act, 1908--­Appellants were Government Authorities and according to provisions of O.XXVII, R.4, C.P.C., notice was to be served on appellants through Secretary of the. concerned Department or through District Attorney/Government Pleader, but the notice was not so served--Even if notice was deemed to have been duly served, it would only be relevant for the purpose of the proceedings qua the directions to the Arbitrators to file the award in the Court which was the first stage in dealing with the application under S. 14(2) of Arbitration Act, 1940---After filing of the award it was the duty of the Court to have issued a fresh notice to the appellants intimating them about the award having been filed in the Court enabling them to file objections to the award- First notice contemplated under S.14(2) of Arbitration Act, 1940 was the one which directed the filing of the award, but when the award was filed, a second notice had to be issued---Notice before filing of the award was premature and would not be relevant and a substitute for the mandatory notice of filing of award in the Court---If the parties were present before the Court even through the recognized Agent/Pleader, when order of the filing of the award was passed, such order could be deemed to be sufficient compliance of the issuance of second notice---If the person who appeared in Court in response to first notice was not at all an -authorised person to represent the appellants Trial Court, in circumstances, was not justified to reject the objections of the appellants on the score of limitation by invoking the provisions of Art.158 of Limitation Act, 1908---Order of the Trial Court was set aside in appeal with the observations that objections of the appellants would be deemed to be pending before the Trial Court which would be decided on merits in accordance with law.

Province of West Pakistan (Punjab) and others v. Mian Abdul Hamid & Co. 1985 CLC 1170 ref.

Ch. Muhammad Ashraf, A.A.-G. for Appellants.

Riaz Karim Qureshi for Respondents.

Date of hearing; 3rd October, 2001.

2002 M L D 418

[Lahore]

Before Muhammad Sair Ali, J

ISHAQUE BAIG---Appellant

versus

Mst. SUGHRAN and 8 others ---Respondents

Regular Second Appeal No.74 of 1986, decided on 8th August, 2001.

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

----O.VIII, Rr.2, 3, 4 & 5---Written reply---Where parties and subject­ matter in both the suits were identical respondent's plaint in their own suit could not take the place of written statement in appellant's suit and legal consequences of filing a non-rebutting, non-specific, vague and general written statement could not be avoided by the respondent.

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

----O.VIII, Rr.3 & 5---Defence not raised in the written statement--­Effect---Where no defence was raised in written statement, the same would be taken to have been admitted and could not be subsequently relied upon by the defendants as a matter of right---Was enjoined upon defendant to traverse allegation made in the petition, expressly or by necessary implication, otherwise, same would be deemed as an admission of the allegation.

Mst. Gul Resha and another v. Mst. Hayadara and others 1968 SCMR 9'79; Lakhmi Chand v. B. Ram LAI Kapoor Vakil AIR 1931 All. 243; Muhammad Altaf and others v. Painda Khan through Legal Heirs 1989 MLD 4227; National Bank of Pakistan v. General Tractor and Machinery Co. Ltd. and another 1996 CLC 79; Malik Muhammad Miskeen and 2 others v. Government of Pakistan through Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and 10 others PLD 1993 Azad J & K 1; Badat & Co. Bonuliay's case AIR 1964 SC 538 and AIR 1956 Nag. 27 ref.

(c) Qanun-e-Shahadat (10 of 1984)---

----Art. 103---Civil Procedure Code (V of 1908), O. VIII, Rr. 3 & 5--­Exclusion of oral evidence by the documentary evidence---Absence of specific denial in written statement:- Defendants in their written statement did not specifically deny the receipt of entire sale price, entry of sale in mutation register (though not sanctioned because of pending consolidation proceedings) and transfer of possession thereto ---Effect--­Where. documentary, evidence was produced by the plaintiff which the defendant did not specifically deny the same was treated to have been admitted by the defendants as the documents did not require proof thereto under Art. 103 of Qanun-e-Shahadat, 1984.

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

----S. 42---Civil Procedure Code (V of 1908), S.100---Agreement to sell---Concurrent findings of facts by the Courts below---Only execution of agreement to sell was controversial between the parties---Such agreement was concurrently held by the Courts below to have been validly and genuinely executed in favour of the plaintiffs by the late vendor who was predecessor-in-interest of the defendant---Against findings on the issue of the agreement to sell no proceedings were filed by the defendants and the same had become final and conclusive---Effect---Where findings of lower Appellate Court on other issues had been set aside its findings on issue of maintainability of the suit against the, plaintiffs and in favour of the defendants were also set aside---Suit of the plaintiffs was maintainable under the law---Judgment and decree passed by the Lower Appellate Court were set .aside and that of the Trial Court were affirmed---Second appeal was allowed in circumstances.

Amin-ud-Din Khan for Appellant.

Sh.-Dilawar Hussain for Respondents:

Date of hearing: 24th July, 2001.

2002 M L D 434

[Lahore]

Before Mian Saqib Nisar, J

Khawaja MASOOD AHMAD and another---Appellants

versus

SAJAD SARWAR and 2 others---Respondents

Second Appeals from Order Nos. 117, 118 and 119 of 2000, heard on 19th September, 2001.

(a) Co-sharer---

----Remedy against co-sharer in possession---Person acquiring possession of immovable property at the very inception as co-owner could not be dispossessed from the same without proper partition and a decree/order of a competent Court in that regard.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13 & 15(6)---Ejectment---Tenants initially admitted the tenancy, but later on took up the plea that for having purchased the share of some co-owners of demised premises, such relationship of landlord and tenant had ceased to exist---Rent Controller and Appellate Court discarded such plea of tenants and passed ejectment order---Validity---Tenants could not resist ejectment application on such ground---Tenancy would stand terminated either mutually by landlord and tenant or by surrendering the possession of demised premises by tenant, which he had taken at the inception under tenancy relationship---No exception could be taken to the view formed by Courts below---High Court dismissed the appeals for having no force.

Ghulam Mustafa and another v. Mst. Muhammadi Begum and another 1990 CLC 246; Tajamal Hussain v. Syed Ibrar Hussain 1992 ALD 420; Muhammad Nawaz and 2 others v. Sh. Abdul Latif and another 1971 SCMR 198; Dr. Arslan Razzaq v. Ali Hussain PLD 1993 Lah. 97; Umar Hayat Khan v. Inayatullah Butt and others 1994 SCMR 572; Nazir Ahmad v. Mst. Sardar Bibi and others 1989 SCMR 913; Ghulam Mustafa and others v. Mst. Muhammadi Begum and others 1991 SCMR 432 and Dr. Muhammad Siddique v. Additional District Judge, Faisalabad and 3 others 1990 CLC 1156 ref.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Ejectment---Joint property---Person entering upon such property as tenant under one of its co-sharers continues to be a tenant till such time either tenancy is terminated by an express agreement between the landlord and tenant or he surrenders possession thereof-- -Tenant purchasing share from one co-sharer during subsistence of tenancy does not cease to be a tenant, particularly where the ejectment proceedings were already initiated against a tenant but who, with an object to circumvent such proceedings, acquired a share in property from a co-­owner.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Ejectment---Tenant initially admitted the tenancy, but after purchasing share of some co-owners of shop in dispute, they filed suit for partition---Rent Controller and Appellate Court passed ejectment order against tenants---Contention was that ejectment application and suit for partition should have been decided together by same Court---Such contention was raised neither before any of the forums below nor in appeal filed before the High Court---Stage of decision of both such matters together had already passed and on such plea alone, order of ejectment could not be set aside.

C.M. Latif Rawn for Appellants.

Tariq Shamim for Respondents.

Date of hearing: 19th September, 2001.

2002 M L D 438

[Lahore]

Before Zafar Pasha Chaudhary and Mian Muhammad Jehangir, JJ

MUHAMMAD ASLAM and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No. 129, Murder reference No. 155 and Criminal Revision No. 456 of 1996, heard on 3rd October, 2001.

Penal Code (XLV of 1860)---

----S.302/34---Appreciation of evidence---Ocular evidence was trustworthy and credible---Occurrence was the result of a flare-up having taken place suddenly on a dispute regarding the possession of a piece of land---Imposition of the lesser sentence of imprisonment for life on the accused was supported by the circumstances emerging from the prosecution case itself---Conviction and sentence of accused were maintained in circumstances.

Shahryar Sheikh for Appellants.

Malik Muhammad Jahangir for the State.

Sher Afghan for the Complainant.

Date of hearing: 3rd October, 2001.

2002 M L D 442

[Lahore]

Before Riaz Kayani and Bashir A: Mujahid, JJ

EHSAN ULLAH---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.3107-B of 2001, decided on 26th June, 2001.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Bail---Accused had not caused any fire-arm injury either to the deceased or anybody else---Simple injuries were attributed to accused having been caused to prosecution witnesses with the butt of his gun---Vicarious liability of accused for causing death of the deceased was, therefore, a matter of further inquiry and probe---Accused was admitted to bail accordingly.

Shahryar Sheikh for Petitioner.

Malik Muhammad Ishaque for the State.

2002 M L D 445

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUSHTAQ AHMAD---Petitioner

versus

THE STATE ---Respondent

Criminal Miscellaneous Bail No. 110 of 2001, decided on 4th July, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code , (XLV of 1860), 5a. 440, 144, 149, 337-A(ii) & 337-H---Bail, Cancellation of---Case was of two versions in which both the parties had received injuries, but the injuries on the person of the accused were suppressed by the complainant and it was yet to be seen as to who was the aggressor--­Fight between the parties started over a construction on the disputed land and it had been concealed in the F.I. R. that the accused were busy in the construction on the disputed land and it was the complainant party which reached the place of occurrence and tried to stop them---Was -yet to be seen as to which side was the aggressor particularly when the accused reported his version to the police on the very day---Contention of the petitioner that it was an offence under S.7-B of the Anti-Terrorism Act, 1997, was repelled, as neither offences under said section or under S.324, P.P.C. did appear on the record.

Muhammad Amir v. The State PLD 1972 SC 277 ref.

Sardar Muhammad Akram Khan Pitafi for Petitioner.

2002 M L D 450

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD ZAHID ‑‑‑ Petitioner

versus

THE STATE ‑ Respondent, Criminal Miscellaneous No l i 28‑‑I3IBWP of 2001, decided on 13th December, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

----‑S.497‑‑‑Penal Code , (XLV of 1860), S.302/34‑‑‑Bail, g n of‑‑­Accused did not cause any injury to the deceased‑‑‑Report of post­mortem had revealed that the deceased did not receive any blunt weapon injury‑‑ ‑Whether the accused had shared common intention with the co‑accused, would be determined by the Trial Court after, recording the evidence‑‑‑Allegation against the accused needing further inquiry, the accused was admitted to bail.

Sardar Riaz Ahmad for Petitioner.

Ghazanfar Ali Khan for the State.

2002 M L D 454

[Lahore]

Before Muhammad Farrukh Mahmud, J

ZAFARIQBAL ‑‑‑ Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No. 2350-B of 2001, decided on 7th November, 2001.

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

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), S.459‑‑‑Bail‑‑‑Accused as per F. I. R. had given a blow with the butt of his rifle on the head of the complainant only after the complainant had grappled with him‑‑‑Accused had joined the investigation and: nothing incriminating was recovered from him‑‑‑All the Police Officers, had found the accused innocent in different investigations and a discharge report had been forwarded to the S.S.P.‑‑‑Police opinion although was not binding on the Court, yet ;it was not irrelevant for bail purposes and the benefit of doubt, if any, was to be extended to the accused even at bail stage‑‑‑Allegations .levelled against the accused needed further inquiry as, contemplated under S.497(2), Cr.P.C;.‑‑‑Accused was admitted to bail accordingly.

Dr. Muhammad Aslam v. The State 1993 SCMR 2288; Muhammad Ilyas v. Ijaz Ahmad' Butt and another 1992 SCMR 1857 and Manzoor and 4 others v. The State PLD 1972 SC 81 ref.

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

‑‑‑‑Ss. 497/498‑‑‑Bail‑‑‑Police opinion‑‑‑Opinion of police undoubtedly is not binding upon the Courts, but the same is not irrelevant for the purposes of bail and the benefit of doubt, if' any, should be extended to the accused even at bail stage.

Dr. Muhammad Aslant v. The State 1993 SCMR 2288; Muhammad. Ilyas v. Ijaz Ahmad Butt and. another 1992 SCMR 1857 and Manzoor and 4 others v. The State PLD 197281. ref.

Ch. Pervez Aftab for Petitioner.

Sardar Mehboob and Tahir Mehmood for the Complainant.

Muhammad Tayyub Ghauri for the State.

2002 M L D 462

[Lahore]

Before Asif Saeed Khan Khosa and Muhammad Farrukh Mahmud, JJ

SAJID TUFAIL alias ABUZAR and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 18 of 2000, heard on 17th October, '2001.

Penal Code (XLV of 1860)‑‑‑

-----S.302(b)/34‑‑‑Appreciation' of evidence‑‑‑Accused, having, already been identified by the eye‑witnesses at the time of occurrence, holding of identification parade in the case was not needed‑‑-Eye­witness had given a very truthful, straightforward and trustworthy account of occurrence and minor contradictions therein could safely be ignored‑‑‑Solitary witness like the said eye‑witness could be believed as it was the quality of the witness which was important and not to the quantity‑‑‑Quite natural and unexaggerated story had been given in the F.I.R. which also contained the name of the said eye­witness of the occurrence‑‑‑Ocular testimony inspired confidence and was fully. supported and corroborated by the evidence of recovery of the weapon of offence, medical evidence, the motive and other related circumstances of the case‑‑‑Prosecution, thus, had proved its case against the accused beyond any shadow of doubt‑‑‑No mitigating circumstances were available in favour of accused‑‑‑Conviction of accused and sentences of death awarded to them were maintained in circumstances.

Iqbal alias Bhalla and 2 others v. The State 1994 SCMR 1; Sartraz alias Sappi and others v. The State 2000 SCMR 1758; Mushtaq alias Shaman v. The State PLD 1995 SC 46; Rab Nawaz v. The State 1991 PCr.LJ 826, Ali Ahmed alias Ahmed Mia v. The State PLD 1962 SC 102: Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State 1971 SCMR 651); Weram v. The State 1985 PCr. LJ 372 and Fateh Shah and 2 others. The Stat 1993 PCr. LJ 1036 ref.

Ch. Pervaiz Aftab for the Appellants.

Mehmud‑ul‑Hassan Qurcshi for the State.

Dates of hearing: 10th, 11th, 15th and 17th October, 2001.

2002 M L D 477

[Lahore]

Before Muhammad Farrukh Mahmud, J

NAJAM‑UL‑HASSAN‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Revision Application No.205 of 2000, heard on 7th August 2001.

Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑Arts. 132 & 133‑‑‑‑Criminal Procedure Code (V of 1898), Ss.439 & 540‑‑‑Penal Code (XLV of 1860), Ss. 419/420/409/468/471‑‑­Cross‑examination‑‑‑Recalling of witnesses for cross‑examination‑‑­On the date when the Trial Court recorded the statements of two prosecution witnesses, the petitioner/ accused was not represented by any counsel‑‑‑After recording of said statements of the prosecution witnesses the accused was asked to cross‑examine the witnesses himself and he could put only two questions, to prosecution witnesses, but the Trial Court did not put a single question to both the prosecution witnesses in order to ascertain the truth ‑‑‑Effect‑‑‑Cross-­examination was the most valuable right of the accused and was the only vehicle through which the veracity of a witness could be tested ‑‑‑Cross‑examination was a specialized art which could be practiced only by an expert‑‑‑Giving an opportunity to the accused to cross‑examine the prosecution witnesses himself, would be against the interest of justice‑‑‑Application of the accused/petitioner for recalling of prosecution witnesses for the purposes of. cross‑examination was accepted and the Trial Court was directed to recall the witnesses so that they could be cross‑examined.

Malik Muhammad Anwar v. The State PLD 1991 Kar. 351; Muhammad Fazil Khan v Mst. Amir Jan 1991 PCr.LJ 1849; Altai Hussain Shamim v. The State PLD 1992 Kar. 91 and Sajjad alias Shahzad and others v. The State. 1989 PCr.LJ 1872 ref.

Mian Arshad Latif for Petitioner.

Yaqub Ayaz Siddiqui for the State.

Date of hearing: 7th August, 2001

2002 M L D 484

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD SHARIF ‑‑‑Petitioner

versus

Khawaja AZIZ UD DIN and 13 others‑‑‑Respondents

Civil Revisions Nos.2491 and 2492 of 1994, heard on 12th October, 2001.

(a) Administration of justice‑‑‑

‑‑‑‑ When basic order is without lawful authority, the superstructure built on it must fall on ground automatically.

Cresent Sugar Mills and Distillery Ltd., Faisalabad v. Central Board of Revenue, Islamabad and 2 others PLD 1982 Lah. 1 and Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak.) 104 ref.

(b) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑‑

‑‑‑‑S.22‑‑‑Civil Courts, jurisdiction of‑‑‑Finality attached to orders passed by Settlement Authorities‑‑‑Order passed by the Settlement Authorities was on the basis of orders passed by superior Courts‑‑­Such order. was assailed before Civil Courts‑‑‑Validity‑‑‑Finality attached to the order was only if the order was passed with jurisdiction within the four‑corners of law and in respect of matters which the Settlement Authorities were empowered to determine under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958‑‑‑Where the Settlement Authorities passed the orders in favour of both the parties on the basis of order of the superior Courts, only Civil Courts had jurisdiction to determine the validity 'of orders passed by the Settlement Authorities regarding whether the same were passed within the parameters prescribed by superior Courts or not.

(c) Civil Procedure Code (V of'1908)‑‑‑

‑‑‑‑S.115‑‑‑Revision‑‑‑Demarcation proceedings‑‑‑Validity‑‑‑Where demarcation report was prepared in absence of respondents, the same was not sustainable in the eyes of law.

The University of Dacca v. Zakir Ahmed PLD 1965 SC 90 and Pakistan and others v. Public at Large and others PLD 1987 SC 304.

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

‑‑‑‑S.115‑‑‑Revision‑‑‑Scope‑‑‑Parameters of revisional powers determined‑‑‑Concurrent findings of fact by the Courts below‑‑­Interference by High Court in exercise of revisional jurisdiction‑‑­Validity‑‑‑Interference in such findings can be made when the evidence is misread and the finding is based on surmises and conjectures or based on inadmissible evidence or there exists error or defect in the procedure which may possibly have introduced error or defect in the decision on merits‑‑‑Findings of question of fact or of law, howsoever erroneous, the same may be recorded by the Court of competent jurisdiction, the same cannot be interfered with by High Court, in exercise of its revisional jurisdiction under S.115, C.P.C. unless the finding suffers from jurisdictional defect, illegality or material irregularity.

N.S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras PLD 1949 PC 26 ref.

(e) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑‑

‑‑‑S.22‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Demarcation of property‑‑‑Proceedings in absence of plaintiffs‑‑‑Settlement Authorities conducted demarcation proceedings in absence of plaintiffs and report was prepared‑‑‑Report prepared by the Settlement Authorities was assailed before Civil Court‑‑‑Both the Courts below concurrently set aside the demarcation report‑‑­Validity‑‑‑Where no illegality or infirmity in the judgments passed by the Courts below, was pointed out, High Court declined to interfere in the same‑‑‑Revision was dismissed in circumstances.

Ghulam Rasool and others v. Jannat Bibi 1990 SCMR 744; Lady .Dr. S. K. Qureshi and others v. Khalid Rauf and another 1987 SCMR 1664; Ghulam Mohi‑ud‑Din v. Sh. Muhammad Mushtaq 1988 CLC 2304; Hamid Hussain's case 1974 SCMR 356; The Province of East Pakistan v. Kshiti Dhar Roy and others PLD 1964 SC 636; Devachand Muljimal v. The D.S. & R.C. and others PLD 1965 SC ‑356; Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698; Zafar‑ul‑Ahsan v. The Republic of Pakistan PLD 1960 SC (Pak.) 113; Muhammad Idrees Khan v. Settlement Commissioner, Hyderabad and 2 others 1981 CLC 1510 and Syed Ali Moazzam v. M.A. Effandi and others PLD 1965 (W.P.) Lah. 193 ref.

Ch. Muhammad Abdullah for Petitioner.

Ch. Tanveer Ahmad for Respondents.

Date of hearing: 12th October, 2001.

2002 M L D 500

[Lahore]

Before Tanvir Bashir Ansari, J

MUHAMMAD AZEEM and others‑‑‑Petitioners

versus

Mst. ZOHRAN and others‑‑‑Respondents

Civil Revision No.360‑D of 1990, heard on 11th October, 2001

(a) Islamic Law‑‑‑

‑‑‑‑Gift‑‑‑Restriction imposed by donor after attestation of mutation‑‑­Donor restricted the donee to mortgage or sell the gifted land‑‑­Validity‑‑‑Where alienation was made by the donor in favour of the donee under Shariat, no legal effect would flow from the endorsement of the restriction upon the right of donee ‑‑‑Such restriction was void.

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

‑‑‑‑S.45‑‑‑Mutation, assailing of‑‑‑Limitation‑‑‑Where mutation was attested on 25‑1‑1932 and the suit was filed on 31‑7‑1984, such suit was barred by time.

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

‑‑‑‑S.45‑‑‑Gift mutation, assailing of‑‑‑Suit‑land was transferred in favour of the defendant by her husband vide gift mutation attested on 25‑1‑1932‑‑‑Plaintiffs were legal heirs of one of the daughters of the donor and they assailed the mutation in civil suit filed on 31‑7‑1984‑‑‑Contention of the plaintiffs was that the defendant was entitled only to the extent of 1/8th share in the suit property‑‑‑Trial Court decreed the suit, in favour of the plaintiffs whereas the Appellate Court allowed the appeal and dismissed the suit‑‑­Validity‑‑‑Plaintiffs failed to point out any misreading or non‑reading of evidence on record‑‑‑Appellate Court had appreciated the evidence on record and the inference drawn by such evidence was lawfully made‑‑‑Judgment and decree passed by the Appellate Court did not suffer from any illegality or infirmity‑‑‑High Court .declined to interfere with the same.

G.N. Gohar and Malik M.H. Zafar Misson for Petitioners.

Muhammad Javed Iqbal Qureshi for Respondents.

Date of bearing: 11th October, 2001.

2002 M L D 507

[Lahore]

Before Tanvir Bashir Ansari, J

MUHAMMAD NAWAZ‑‑Petitioner

versus

ADDITIONAL DISTRICT JUDGE and others‑‑‑Respondents

Writ Petition No.2631 of 2001, heard on 1st October, 2001.

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

‑‑‑‑O.II, R.2‑‑‑Same cause of action‑‑‑Filing of second suit‑‑­Validity‑‑‑Filing of a subsequent suit on the same cause of action and for the same relief is barred under the provisions of O.II, R.2, C.P.C.

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

‑‑‑‑O.II, R.2 & O.VII, R.11‑‑‑Constitution of Pakistan. (1973), Art. 199‑‑‑Constitutional petition‑‑‑Plaint, rejection of‑‑‑Splitting up a cause of action‑‑‑ Filing of second suit on the same cause of action against the same parties‑‑‑Plaintiff on the same cause of action, during the pendency of suit for declaration, filed another suit for perpetual injunction‑‑‑Application of the defendant for rejection of the subsequent plaint was dismissed by both the Courts below‑‑­Validity‑‑‑Plaintiff could not file a suit on the same cause of action while a previous suit on the same cause of action was pending‑‑­Plaintiff, in view of the embargo placed by O.II, R.2, C.P.C., had to sue for all the available reliefs in one suit and splitting up a cause of action was not permissible‑‑‑Both the Courts below failed to appreciate the objection raised by the defendant in its correct legal perspective‑‑‑Orders passed , by both the Courts below were set aside and plaint in the subsequent suit was rejected under O.VII, R.11, C.P.C.‑‑ Constitutional petition was allowed accordingly.

Tariq Mehmood Khan for Petitioner.

Malik Muhammad Hanif Ghaffari for Respondents.

Date of hearing: 1st October, 2001.

2002 M L D 512

[Lahore]

Before Tanvir Bashir Ansari, J

MUHAMMAD ABDULLAH KHAN‑‑‑Appellant

versus

Rais ABDUL GHAFFAR and others‑‑‑Respondents

Regular Second Appeal No.33 of 1989, heard on 26th September, 2001.

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4 & 21‑‑‑Superior right of pre‑emption ‑‑‑Co‑owner in estate‑‑­Failure to prove co‑sharer in Khata‑‑‑Both the Courts below having found pre‑emptors as co‑owners in the estate, decreed the suit in their favour‑‑‑Validity‑‑‑If a pre‑empter could not prow; to be a co‑sharer in Khata the `same could not deprive him of his superior right on the basis of his being a co‑owner of the estate‑‑‑There being no misreading‑ of material evidence on record, appeal was dismissed in circumstances.

M. Jaffar Hashmi for Appellant.

Ijaz Ahmed Ansari for Respondents.

Date of hearing: 26th September, 2001

2002 M L D 518

[Lahore]

Before Tanvir Bashir Ansari, J

GHULAM RASOOL‑‑‑Appellant

versus

ABDUL GHANI ‑‑‑ Respondent

Regular Second Appeal No.11 of 1986, decided on 25th September, 2001.

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

‑‑‑‑S.100‑‑‑Second appeal‑‑‑Findings of Courts below on question of fact‑‑‑.Interference in exercise of jurisdiction under S.100, C.P.C.‑‑‑Scope‑‑‑When no misreading or non‑reading of evidence has been indicated, such findings cannot be interfered with.

(b) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S.12‑‑‑Specific Relief Act (I of 1877), S.27(b)‑‑‑Conveyance deed, non‑registration of‑‑‑Plea of being bona fide purchaser for value without notice‑‑‑Transfer elf suit‑land by grantee‑‑‑Grantee had paid the full amount of dues to the Government and had fulfilled all other conditions of sale except the drawing up and registration of conveyance deed which was not a condition within his power to fulfil‑‑‑No substantial condition was there which the grantee had failed to fulfil‑‑‑Grantee transferred the subject land in favour of the defendant, subsequent to registration of sale‑deed in favour of the plaintiff‑‑‑Both the Courts below had decided the matter in favour of the plaintiff‑‑‑Defendant contended to be a bona fide purchaser for value without notice and claimed protection of S.27 of the Specific Relief Act, 1877‑‑‑Validity‑‑‑Where the grantee had paid all the dues to the Government, he had been vested with proprietary rights and was competent to transfer the suit‑land in favour of the plaintiffs by means of registered sale‑deed executed in their favour‑‑‑When sale­-deed in favour of the plaintiffs was competently made, the subsequent transfer of the said land by grantee in favour of third party was without legal authority‑‑‑Mutation in favour of the defendant and all subsequent transactions of exchange, or sale based upon such mutation were nullity‑‑‑Both the Courts below had rightly decided the matter in favour of the plaintiffs‑‑‑Held, when foundation was without basis, the superstructure made upon it must also fall‑‑­Judgments and decrees passed by both the Courts below were maintained.

Ali Muhammad v. Mst. Rabia Bibi and 3 others PLD 1971 BJ 38; Faiz Ali v. Mst. Rafia Jan and 2 others PLD 1956 Lah. 94; Ilam Din v. Muhammad Din PLD 1964 SC 842; Said Ali Shah v. Muhammad Shafi 1989 SCMR 1594 and Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak.) 104 ref.

Sh. Hakim Ali for Appellant.

Malik Abdul Ghafoor Awan for Respondent.

Date of hearing: 25th September, 2001.

2002 M L D 526

[Lahore]

Before Tanvir Bashir Ansari, J

DEWAN ALI ‑‑‑Petitioner

versus

D.C. and others‑‑‑Respondents

Civil Revision No.217‑D of 1979 and Writ Petition No. 1329 of 1999, decided on 26th.September, 2001.

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

‑‑‑‑S. 39‑‑‑Punjab Settlement Manual, para. 267‑‑‑Nature of land, determination of‑‑‑Entry in Special Jamabandi‑‑‑Effect‑‑‑True nature of land is‑to be determined on the basis of actual use to which it is, or has been put by its owners‑‑‑Entry in special Jamabandi is one such determining factor and entry of such land as Banjar Jadeed or Banjar Qadeem in Jamabandi has to be considered and appreciated.

Farida Begum v. Nasir‑ud‑Din PLJ 1974 Lah: 322 and Abdul Saeed v. Choudhary Muhammad Latif Khan and others 1983 CLC 2491 ref.

(b) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑Ss.22 &: 25‑‑‑Limitation Act (IX of 1908), Arts. 14 & 120‑‑‑Nature of land‑‑‑Determination‑‑‑Jurisdiction of Civil Court‑‑‑Assailing of order passed by public functionaries‑‑‑Limitation‑‑‑Disputed land was agriculture in nature‑‑‑ Plaintiffs assailed allotment in favour of defendants on the ground that the allotted land was in Abadi Deh and was not agricultural in nature, hence R.L.II issued in favour of the defendants was illegal‑‑‑Both the Courts below found that despite there being construction on the land; the same was agricultural in nature and suit as well as appeal were dismissed respectively‑‑‑Validity‑‑‑Plaintiffs had neither alleged in their plaint any specific allegation of fraud, nor the same had been proved on record which could vitiate the transfer in favour of the defendant‑‑‑Where the suit against the allotment order dated 10‑6‑1972 was filed on 13‑10‑1975, the suit was time‑barred‑‑­Time prescribed under Art.14 of the Limitation Act, 1908, for filing of suit against order of public functionary was one year and that resort could not be made to Art. 120 of the Limitation Act, 1908, to avail of six years as period of limitation‑‑‑Finding of both the Courts below that after the promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, the transfer which took place prior to the repeal of the evacuee laws was not a pending matter and could not be re‑opened or challenged before a Court was without exception.

Captain Asmat Hayat Khan and others v. Yousaf Masih and others 1994 SCMR 456; Abdullah and others v. Muhammad Nawaz and others 1994 SCMR 83; Ghafoor Bux v. Haji Muhammad Sultan and others 2001 SCMR 398; Tufail Muhammad v. Abdul Aleem Khan and others 1991 SCMR 1; Boota Ram v. Bagga Singh and another AIR 1948 Lah. 103 and Jamal Din and another v. Mst. Pari Jan and 4 others 1984 SCMR 403 ref. '

Aejaz Ahmed Ansari for Petitioner.

M. M. Bhatti for Respondents.

Mian Muhammad Bashir, Asstt. A.‑G. on behalf of Province of Punjab.

Date of hearing: 25th September, 2001.

2002 M L D 539

[Lahore]

Before Muhammad Saeed Akhtar and Maulvi Anwarul Haque, JJ.

Mst. RAZIA KHATOON and 6 others‑‑‑Appellants

versus

PROVINCE OF N.‑W.F.P. through Secretary Transport, N.‑W.F.P. Secretariat, Peshawar and 2 others‑‑‑Respondents

Regular First Appeal No. 18 of 1988, heard on 12th July; 2001.

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

‑‑‑‑S.1‑‑‑Fatal accident‑‑‑Facts to be proved‑‑‑To maintain an action under. Fatal Accidents Act, 1855, plaintiff must prove that the deceased person was injured by the wrongful act and neglect or default of the defendant; that he died in consequence of such injury; that at the time he died he had a right to recover damages and that the beneficiaries have suffered pecuniary loss from his death‑‑All such things must be proved and failure in anyone of them is fatal to the pause of action.

(b) Fatal Accidents Act (XIII of 1855)‑‑‑

‑‑‑‑S.1‑‑‑Fatal accident‑‑‑Death due to rash and negligent driving‑‑­Judgment in criminal case‑‑‑Defendant bus driver failed to keep. reasonable distance from the motorcycle and hit the same from the rear side resulting into the death of pillion rider‑‑‑Trial Court dismissed the suit on the ground that the defendant had been acquitted by the Criminal Court in the criminal case registered against him‑‑‑Validity‑‑‑Driver of the vehicle under the Highway Code was supposed to keep a reasonable distance from the vehicle going in front‑‑‑By not keeping the reasonable distance from the motorcycle, the defendant could not control the bus and ran over the pillion rider‑‑‑Bus in the present case was being driven in a rash and negligent manner‑‑‑Degree of care for the safety of others which the law required people to observe in conducting their affairs varied according to the circumstances‑‑‑No absolute standard of degree of care was required but the same varied directly with the risk involved‑‑‑Degree of care required in the present case having not been met, the judgment and decree of the Trial Court were set aside and the suit was decreed.

(c) Fatal Accidents Act (XIII of 1855)‑‑‑

‑‑‑‑S.1‑‑‑Maxim: "res ipsa loquitur"‑‑‑Connotation‑‑‑Maxim "res ipsa loquitur" means thing speaks for itself‑‑‑Where real cause of death was solely within the knowledge of the defendant and was not known to the plaintiff, the maxim "res ipsa loquitur" was applicable.

Muhammad Yaseen. v. Medicare Clinic Ltd. 1988 CLC 139 and Punjab Road Transport Corporation, Lahore v. J.V. Gardener and 2 others 1998 CLC 199 ref.

(d) Fatal Accidents Act (XIII of 1855)‑‑‑

‑‑‑‑S.1‑‑‑Fatal accident‑‑‑Maxim "res ipsa loquitur"‑‑‑Applicability-‑­Death of pillion rider on motorcycle was caused at "U" turn when bus driven by the defendant ran over the deceased‑‑‑Effect‑‑Where the fats remained unexplained by the driver of the bus particularly when the motorcyclists were at the "U" turn and there was a traffic signal warning the driver to slow down the speed, the maxim "res ipsa loquitur" was applicable.

(e) Practice and procedure‑‑‑‑

‑‑‑‑Criminal as well as civil liability‑‑‑Judgment recorded in criminal case was not admissible for determining the liability in civil cases.

Deputy Inspector‑General of Police, Lahore v. Anis‑ur‑Rehman Khan PLD 1985 SC 134 ref.

Raja Altaf Hussain Satti for Appellants.

Muhammad Aslam Uns for Respondents.

Date of hearing: 12th July, 2001.

2002 M L D 550

[Lahore]

Before Ch. Ijaz Ahmad, J

Ch. MUHAMMAD ASHRAF‑‑‑Petitioner

versus

PUNJAB PRIVATIZATION BOARD through Secretary, Government of Punjab and another‑‑‑Respondents

Writ Petition No.17311": of 2001, decided on 24th September, 2001.

(a) Contact Act (IX of 1872)‑‑‑

‑‑‑‑Ss.2(b) & 188‑‑‑Auction‑‑‑Auction proceedings‑‑‑Subject to confirmation‑‑‑Highest bid‑‑‑Legal right, accrual of‑‑‑Validity‑‑‑By giving highest bid which was not accepted, no legal right to grant of contract was accrued in favour of the highest bidder as the auction was subject to confirmation‑‑‑Bid made at auction is in the nature of offer which does not mature into contract at all till its acceptance‑‑‑Auctioneer acts as agent of the seller and if he has authority to accept the bid, concluded contract comes into being the moment bid is accepted either by the words of mouth or by any other method‑‑‑Where the auctioneer is not vested with the power to accept the bid which is with another person or authority, the contract only comes into being when the bid is accepted by that authorized person.

Munshi Muhammad's case 1971 SCMR 533; Meraj Din's case 1970 SCMR 542; Babu Pervaiz Qureshi's case 1974 SCMR 337; Rehmat Ali and 2 others v. The Revenue Board, West Pakistan, Lahore 1973 SCMR 342; Muhammad Din & Sons, Shahdara, Lahore Mills v. Province of West Pakistan PLD 1960 Lah. 823; Dr. Azeem Shah v. Municipal Committee, Multan PLD 1968 Lah. 1419 and Muthu Pillai v. Secretary of State through Collector of Madura AIR 1923 Mad. 582 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Contractual rights‑‑‑Such rights are not enforceable by recourse to Constitutional jurisdiction of High Court.

Messrs Moman Motors Co. v. Regional Transport Authority PLD 1962 SC 108; Jaiey & Company v. Union of India AIR 1972 Cal. 253 and M. Muzaffar Din Industries v. Settlement Rehabilitation, Lahore 1968 SCMR 1136 ref.

(c) Mala fides‑‑‑

‑‑‑‑ General allegation of mala fides is not maintainable in the eyes of law.

Saeed Ahmad Khan's case PLD 1974 SC 151 ‑and Amanullah's case PLD 1990 SC 1092 ref.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Auction proceedings‑‑‑Rejection of bid‑‑‑For privatization of Tourist Resort, public auction was held which was subject to confirmation of Privatization Board‑‑‑Petitioner, was highest bidder but his bid was not confirmed and the same was rejected‑‑‑Validity‑‑‑Authorities had rejected the bid in terms of tender notice‑‑‑Where the petitioner failed to point out that the rejection order was passed by the Authorities in violation, of the terms and conditions of tender notice, the Constitutional petition was not maintainable‑‑‑Petition was dismissed in circumstances.

Petrosin Products (Pvt.) Ltd. v. Federation of Pakistan through Secretary 2000 CLC 1412 and Muhammad Din & Sons, Shahdara, Lahore Mills v. Province of West Pakistan PLD 1969 Lah. 823 distinguished. , Ali Mir's case 1984 SCMR 433 ref.

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

‑‑‑‑Arts. 189 & 190‑‑‑Judgment of Supreme Court is binding on each and every organ of the State.

Hasham Sabir Raja for Petitioner.

2002 M L D 556

[Lahore]

Before Naseem Sikandar and Muhammad Saeed Akhtar, JJ

COLLECTOR OF CUSTOMS---Appellant

versus

CUSTOMS, EXCISE AND SALES TAX APPELLATE TRIBUNAL, CUSTOM HOUSE, LAHORE and another---Respondents

Customs Appeal No.211 of 2001, heard on 30th August, 2001

(a) Customs Act (IV of 1969)---

----S.179---Categories of officers adjudicating cases involving confiscation of goods or imposition---Powers of officers---Three categories of the officers given with reference to limits of their pecuniary jurisdiction under the provisions of S.179 of the Customs Act, 1969, do not make them an officer subordinate to the other---Collector (Adjudication) empowered to adjudicate cases without any pecuniary limit does not, by that reason, become the appellate, revisional or supervisory authority of the Additional Collector or the Deputy Collector as far the adjudication of cases is concerned.

(b) Customs Act (IV of 1969)---

----Ss.179 [as amended by Notification S.R.O. No.448(I)/2000, dated July, 2001] & 195---Executive Collector---Jurisdiction of--Revision of order already passed in proceedings by Competent Authority---Truck recovered from the accused person was released by the Authorities unconditionally after concluding the investigation proceedings---Collector (Adjudication) once again in exercise of powers under S.195 of the Customs Act, 1969, served show-cause notice expressing his intention to revise the earlier order-in-original---Order passed by the Collector (Adjudication) was set aside by the Customs, Excise and Sales Tax Appellate Tribunal---Validity---Collector (Adjudication) was not empowered to interfere in adjudication of matters directly or indirectly by invoking his revisional power under S.195 of the Customs Act, 1969---Revisional jurisdiction remained relevant only to the extent of the Central Board of Revenue after the date as mentioned in the Notification S.R.O. No.448(I)/2000, dated July, 2001---Collector acting on executive side could not transfer the matter which had already been adjudicated upon by the Collector (Adjudication) and the order having been reworded before the amendment in S.179 of the Customs Act, 1969, could himself proceed to revise the same if the conditions of law were answered---

Collector (Adjudication) had no authority to re-open or revise the order of adjudication irrespective of the official designation or the pecuniary limit of the Officer making the order---Order passed by the Customs, Excise and Sales Tax Appellate Tribunal was maintained by High Court.

Jawahar A. Naqvi with Hassan Muhammad Ahsan 'for Intelligence Officer.

Mian Abdul Ghaffar for Respondent.

Date of hearing: 30th August, 2001.

2002 M L D 567

[Lahore]

Before Sheikh Abdur Razzaq, J

WASIF TANVEER BHATTI‑‑‑Petitioner

versus

TARIQ ZAMAN‑‑‑Respondent

Civil Revision No.271‑D of 1999, heard on 4th May, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.8‑‑‑Transfer of Property Act (IV of 1882), Ss. 105, 108 & 111‑‑­Civil Procedure Code (V of 1908), O.XVII, R.3‑‑‑Suit for possession and mesne profits‑‑ ‑Closing of evidence‑‑‑Plaintiff being owner of house in dispute leased out house to the defendant vide lease agreement for period of two years‑‑‑Suit was filed by the plaintiff on expiry of lease period‑‑‑During pendency of suit defendant was ordered to deposit arrears of rent up to specified date, but defendant failed to comply with order of the Court‑‑‑Court, on application by the plaintiff under OAVII, R.3, C.P.C., concurrently decreed suit after closing evidence of the defendant for non‑compliance of order with regard to deposit of rent‑‑­Validity‑‑‑Courts below rightly decreed the suit as non‑compliance of order passed by the Trial Court would entail the penalty provided under O.XVII, R.3, C.P.C.‑‑‑Concurrent judgment and decree of Courts below, not suffering from any misreading and non‑read nag of evidence or jurisdictional defect, could no: be interfered with by High Court in exercise of its revisional jurisdiction.

Abdur Rashid Awan for Petitioner.

Muhammad Akbar Butt for Respondent.

Date of hearing: 4th May, 2000.

2002 M L D 574

[Lahore]

Before Syed Zahid Hussain, J

ASAD MUMTAZ ALI and 2 others‑‑‑Petitioners

versus

Ch. ALI AHMAD, SETTLEMENT COMMISSIONER, WEST PAKISTAN, LAHORE and 12 others‑‑‑Respondents

Writ Petition No. 672‑R of 1969, heard on 6th July, 2001.

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑‑

‑‑‑‑S. 2(4)‑‑‑Settlement Scheme No.l, para.19‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Settlement laws‑‑‑Excess area, allotment of‑‑‑Non‑payment of price‑‑‑Predecessor‑in‑interest of the petitioners had not made full payment for excess area transferred to him over and above three times the plinth area‑‑‑Only on the basis of memo. issued in favour of the predecessor‑in‑interest of the petitioner they had claimed right over the excess area in their possession‑‑‑Authorities issued revised policy and said memo. was rescinded‑‑‑Validity‑‑‑Where full payment was not made, the transfer of excess area was not allowed to stand‑‑‑Merely with the issuance of memo. no indefeasible right had accrued in favour of the predecessor‑in‑interest of the petitioners‑‑‑Inchoate offer contained in the memo. was dependent upon fulfillment of the condition of payment of price which had neither been acted upon nor carried into effect‑‑‑Memo. was legitimately rescinded and withdrawn‑‑‑Permanent Transfer Deed issued in favour of the predecessor‑in‑interest of the petitioners did not include the excess/extra land‑‑‑High Court declined to interfere with the order passed by the Authorities in circumstances.

Secretary, Ministry of Finance v. Muhammad Himayatullah Faruki PLD 1969 SC 407 and Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others PLD 1991 SC 973 distinguished.

Sher Afzal Khan and others v. Haji Razi Abdullah and others 1984 SCMR 228; Muhammad Rasheed v. Abdul Salam and others PLD 1991 SC 953; Sahebzada Syed Muhammad Matin Mirza v. Jahangir R. Rustomji and another PLD 1980 SC 64; 'Muhammad Bashir v. Settlement and Rehabilitation Commissioner, Lyallpur and others PLD 1983 SC 143; Muhammad Din and others v. Ghulam Muhammad Naseem Sindhu and others PLD 1991 SC 1; Noor Muhammad Arain and another v. Muhammad Mubarik Khan and others 1994 SCMR 376 and Mian Irshad Ali v. Government of Pakistan through Secretary, Ministry of Rehabilitation, Islamabad and 13 others PLD 1975 Lah. 7 ref.

(b) Locus poenitentiae, principles of‑‑‑

‑‑‑‑Applicability‑‑‑Where order passed by Authority was never implemented, principle of locus poenitentiae was available to the Authority.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑ Finding of fact‑‑‑Scope‑‑‑Where the findings were amply supported by the material on record, such findings could not be interfered with by High Court in Constitutional jurisdiction.

M. Maqbool Sadiq and Irfan Khalil for Petitioner.

Nemo for Respondent No. 1.

Syed Zain‑ul‑Abidin for Respondent No.7.

Rana Aish Bahadur for Respondent No.8.

Aslam Hayat for Respondent No.9

A.R. Shaukat for Respondent No. 10.

Dates of hearing: 5th and 6th July, 2001.

2002 M L D 584

[Lahore]

Before Shaikh Abdur Razzaq, J

KHUDA BAKHSH‑‑‑Petitioner

SECRETARY TO THE GOVERNMENT OF PAKISTAN, MINISTRY OF REIGIOUS AFFAIRS AND MINORITIES AFFAIRS, ISLAMABAD and 10 others‑‑‑Respondents

Writ Petition No, 349 of 1989/BWP, heard on 19th March, 2001.

(a) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)‑‑‑

‑‑‑‑S. 17‑‑‑Revision‑‑‑Order passed by Federal Government‑‑‑Such order can be revised in exercise of power vested in the Federal Government vide S.17 of the Evacuee Trust Properties (Management and Disposal) Act, 1975.

(b) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)‑‑‑

‑‑‑‑S. 17‑‑‑Revision‑‑‑Limitation‑‑‑Scope‑‑‑Where the revision petition was filed beyond 15 days of the impugned order, order passed on such revision was not sustainable.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition ‑‑‑Laches‑‑‑Applicability‑‑‑Order assailed in. the Constitutional petition was passed behind the back of the petitioner‑‑‑Effect‑‑‑Where the petitioner was neither impleaded as party, nor he was afforded opportunity 'of being heard, Constitutional petition filed after a period of 2/1‑2 years did not suffer from laches.

(d) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)‑‑‑

‑‑‑‑Ss. 4(2)(e) & 17‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑ ‑‑Lease of Evacuee Trust Agricultural Land Disputed land was leased out in the year 1980, to the petitioner in public auction for a period of three years‑‑‑Possession of the land was not landed over to the petitioner and, the same was retained by the respondents‑‑‑Matter remained pending before different forums and finally the lease was restored in favour of the respondents by order dated 21‑10‑1986, passed by Federal Government in exercise of revisional jurisdiction‑‑‑Validity‑‑‑Petitioner was granted lease rights for three years from 9‑6‑1980 to 8‑6‑1983‑‑‑Expiry of period did not mean that illegal order could be allowed to hold the field‑‑‑Order passed by Federal Government was set aside‑‑‑Constitutional petition was allowed accordingly.

Aejaz Ahmad Ansari for Petitioner.

Muhammad Akram Qureshi for Respondent No. 1.

Muhammad Mahmood Bhatti for Respondents Nos. 2 to 11.

Date of hearing: 19th March, 2001

2002 M L D 589

[Lahore]

Before Muhammad Nawaz Abbasi, J

MUHAMMAD TUFAIL and 2 others‑‑‑Petitioners

versus

MAULA BAKHSH and 45 others‑‑‑Respondents.

Civil Revision No.171‑D of 1986, heard on 25th April, 2001.

(a) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S.41‑‑‑Transfer by ostensible owner‑‑‑Benefit of S.41, Transfer of Property Act, 1882‑‑‑Essential ingredients‑‑‑Provision embodied in S.41 of Transfer of Property Act, .1882, is exception to the general rule that a person cannot confer better title than the one he holds‑‑‑Essential ingredients required for getting benefit of the provision enlisted.

The following essential ingredients would require for getting benefit of section 41, Transfer of Property Act, 1882:‑‑

(a) The transferor was the ostensible owner.

(b) The transferor was acting as such by the consent, express or implied is the real owner

(c) The transfer was for consideration.

(d) The transferee had acted in. good faith taking reasonable care to ascertain that the transferor had the power to transfer.

In addition to the above essentials, it would be ascertained, whether equitable doctrine contained in section 41 of the Transfer of Property Act, 1882, would be applicable in the facts of a particular case. In case of missing of any one of the above‑referred essential ingredients, the transferee will not be entitled to the protection of section 41 of the Transfer of Property Act.

Khair Din and another v. Mst. Zenab Bibi and 2 others PLD 1973 Lah. 586 ref.

(b) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S.41‑‑‑Purchase of land by ostensible owner‑‑‑Reliance on Revenue Record‑‑‑Effect‑‑‑Where transferors were being shown as owners in disputed Khasra number, ostensibly there was no defect in their title‑‑­Transferee of the disputed land while placing reliance on the Revenue Record entered into the transaction bonafidely and thus he being a bona fide purchaser for value 'was protected under law.

(c) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S.41‑‑‑Transfer by ostensible owner‑‑‑Onus to prove‑‑‑Initial onus is on transferee to show that the transferor is the ostensible owner and that the transferee has acted in good faith with reasonable care‑‑‑If the burden to the extent of the two ingredients is discharged satisfactorily, the same is shifted on the party seeking to defeat the title of the transferee of the property‑‑‑Provisions of S.4I of the Transfer of Property. Act, 1882, apply to all the subsequent purchasers from ostensible owner and mere denial of title is not enough, despite the fact that the defect was known to the original purchaser‑‑‑Where the ultimate purchaser has acted bonafidely' with reasonable care, such purchaser is protected by the provisions of S.41 of‑the Transfer of Property Act, 1882.

(d)'Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S.41-‑‑Transfer by ostensible owner‑‑‑Onus to prove‑‑‑Concurrent findings of facts by the Courts below‑‑‑Transferors were shown to be the owners of the suit‑land in Revenue Record and the same made to believe transferee that the transferors were lawful owners‑‑‑Both the Courts below found that the transferee was entitled to the protection of S.41 of the Transfer of Property Act, 1882,, and the suit was decreed in his favour by both the Courts below‑‑‑.Validity‑‑‑Where the transferee while acting in good faith entered into transaction of sale, the onus was shifted on the defendant to defeat the title of the transferee by proving that he had the prior knowledge of the defect in the title of transferor‑‑‑In the present case, nothing was brought on record to show that either the transferee did not act in good faith or failed to take reasonable care or that he had prior knowledge of the defect in the title of the transferors‑‑­Transferee being bona fide purchaser was entitled to the protection of S.41 of the Transfer of Property Act, 1882‑‑‑High Court declined to interfere with the concurrent judgments and decrees passed by the two Courts below in circumstances.

M. Aslam Malik for Petitioners.

Sardar Zaheer Ahmad Khan for Respondents.

Date of hearing: 25th April, 2,001.

2002 M L D 597

[Lahore]

Before Muhammad Saeed Akhtar, J

Raja MUHAMMAD SALEEM‑‑‑Appellant

versus

RUKIA RAUF and 6 others‑‑‑Respondents

First Appeal from Order No. 125 of 2000, decided on 3rd August, 2001

(a) Interpretation of statutes‑‑‑

‑‑‑‑ Word not defined in a statute‑‑‑Mode of construction‑‑‑In absence of definition, Court has to resort to its ordinary dictionary meaning and the interpretations made by superior Courts.

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

‑‑‑‑S.17(2)(ii)(a)‑‑‑Expression subletting'‑‑‑Connotation‑‑‑Expressionsubletting' is parting with physical possession of rented premises or a part thereof, simple permission to a person to use demised premises cannot be held to have sublet the premises‑‑‑Sub‑lease connotes the right to exclusive possession and enjoyment of property.

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

‑‑‑‑S.17(2)(ii)(a)‑‑‑Ejectment of tenant‑‑‑Subletting of premises‑‑­Displaying neon sign at the roof of premises‑‑‑Proceedings against the tenant were initiated on the ground that the premises was rented out as hotel and neon sign affixed at the roof of the premises' was subletting the premises‑‑‑Ejectment application was allowed by the Rent Controller‑‑­Validity‑ ‑‑Where mere privilege or licence to display the neon sign was conferred and the tenant retained the legal possession of the whole of the premises at all material times, the tenant who retained such possession did not commit breach of the statutory condition‑‑‑No sub‑ letting of the premises was made by the tenant and the order passed by the Rent Controller was set aside in circumstances.

1992 CLC 482; PLD 1980 Kar. 126; Jackson v. Simons (1923) 1. Ch. 373; Stening v. Abraham (1931) 1 Ch. 470; Chaplin v. Smith (1926) 1 KB 198; Mobed and another v. Shah Behram and others PLD 1974 SC 351 and Abdullah Bhai and others v Ahmad Din; PLD 1964 SC 106 ref.

1993 MLD 2425; 1986 CLC 1109; 1996 SCMR 97; 1995 SCMR 330; PLD 1995 Kar. 388; 1981 SCMR 845 and PLD 1995 SC 609 distinguished.

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

‑‑‑‑S.17(2)(u)(a)‑‑‑Subletting of premises‑‑‑Pre‑conditions‑‑‑To constitute the breach, there must be a substantial parting with substantial part of premises‑‑‑Tenant must wholly oust himself and part with legal possession of any part of the premises‑‑‑Where the same is absent, it does not amount to subletting.

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

‑‑‑‑S..17(2)(ii)(b)‑‑ Using premises for a purpose other than for which the same had been leased‑‑‑Fixing of neon sign‑‑‑Effect‑‑‑Where the building was still being used as hotel, affixing of neon sign on the roof could not be termed as conversion of the use for a purpose other than for which it was leased.

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

‑‑‑‑S.17(2)(ii)(a)‑‑‑Ejectment of tenant‑‑‑Subletting of premises‑‑­Waiver‑‑‑Sub‑tenancy acquiesced by landlord‑‑‑Right to object was no longer available‑‑‑Lessor could waive by conduct the condition of requiring prior permission for subletting.

PLD 1980 Kar. 126 rel.

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

‑‑‑‑S.17(2)(vi)‑‑-Re‑construction‑‑‑Failure to place on record sanctioned plan‑‑‑Landlord raised the plea that the premises was in dilapidated condition and the same was required for reconstruction‑‑‑Validity‑‑‑Where no document/ sanctioned plan had been placed on record to prove the same, plea was not accepted by the High Court.

Muhammad Ittifaque Abbasi for Appellant.

Ms. Naheeda Mahboob Elahi for Respondents, Date of hearing 31st July, 2001.

2002 M L D 607

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD ALI and 4 others‑‑‑Petitioners

versus

LAHORE DEVELOPMENT AUTHORITY through Director‑General and 4 others‑‑‑Respondents

Writ Petition No. 10894 of 1991, decided on 7th August, 2001.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction‑‑‑Subsequent events‑‑‑High Court has ample jurisdiction to look into the subsequent events.

Nasir Jamal v. Zubeida Begum 1990 CLC 1069 ref, (b) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑S.18‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Estoppel, principle of‑‑‑Applicability‑‑‑Acquisition of land‑‑­Filing of reference in Court for compensation of land acquired‑‑­Competent Authority had already announced award qua the land inquestion and during pendency of Constitutional petition, the petitioner had also filed reference under S.18 of the Land Acquisition Act, 1894 before the. Competent Authority‑‑‑Constitutional petition was liable to be dismissed on the principle of estoppel.

Ghulam Rasool's case PLD 1971 SC 376 ref.

(c) Notification‑‑‑

"Notification"‑‑‑Meaning‑‑‑Word "notification" connotes notification which was published under proper Authority in official Gazette.

Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190 and S. Abul A'la Maudoodi and others v. Government of West Pakistan PLD 1964 Kar. 478 ref.

(d) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss.4, 17 & 18‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Acquisition of land‑‑‑Notification was issued after 3 days and during pendency of Constitutional petition, the petitioner had already filed reference in the Court for determination of compensation‑‑‑Validity‑‑‑Where the Notification was published within reasonable time prescribed under law, the petition had no merits‑‑­Petition was dismissed in circumstances.

Muhammad Afzal Bhatti v. Province of Punjab 1997 SCMR 296; Rana Muhammad Sharif v. . Commissioner, Gujranwala Division, Gujranwala and 3 others 2002 CLC 1497 and Allah Ditta's case PLD 1997 Lah. 499 ref.

Shaukat Ali Saqib for Petitioner.

Mian Mehboob Ahmad for Respondents.

2002 M L D 612

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD AZAM KHAN and 18 others---Petitioners

versus

Mist. BANI BIJGUM and 5 others---Respondents

Civil Revision No.223-D of 1991, heard on 30th July, 2001

(a) Limitation Act (IX of 1908)---

----S.19 & Art. 148---Redemption of mortgage---Limitation---Mortgagee rights, selling of ---Acknowledgement in writing---Mutations of mortgage were attested upon the statement made by the transferor as well as by or on behalf of the transferees acknowledging the factum of the transfer of mortagagee rights---While selling the mortagagee rights the original mortagagee and while purchasing the said rights, the contesting respondents acknowledged the factum of mortgage---Trial Court dismissed the suit being time-barred and the judgment and decree passed by the Trial Court was maintained by Appellate Court---Validity---Such mutations whereby the contesting respondents purchased the mortagagee rights did constitute acknowledgement within the meaning of S.19 of the Limitation Act- 1908-- Where the plaintiffs acquired mortgagee rights in the years 1944 and 1945, the suit having been filed on 19-10-1989 was thus within time---Courts below acted with material irregularity in the exercise of their jurisdiction in holding otherwise and thus to non-suit the plaintiffs---Judgment and decree passed by both the Courts below were set aside and the suit was decreed.

Said Shah v. Absaruddin and 6 others 1999 SCMR 70 and Samar Gul v. Central Government and others PLD 1986 SC 35 fol.

Allah Bakhsh v. Member, Board of Revenue and others 1988 MLD 922; Muhammad Zaman and 8 others v. Abdul Malik Khan and 7 others PLD 1991 SC 524 and Zarif Khan and others v'. Muhamamd and others PLD 1983 Pesh. 58 ref.

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

----0 XXXIV, R.7---Redemption of mortgage---Passing of preliminary decree- -Suit was decreed in favour of the mortgagees and the mortgagor was ready to pay the mortgage mone;--Effect---High Court directed the officer to prepare a preliminary decree directing the mortgagor to pay the mortgage money into the Trial Court within :he time specified by the High Court and upon such deposit being made on or before the said date the mortgagees were to put the mortgagor in possession of the suit land---High Court further directed that in case the mortgagor failed to deposit the said amount in the Trial Court on or before the said date the mortgagees would be entitled to apply for final decree in terms of O.XXXIV, R.7, C.P.C. subject to the provisions of O.XXXIV, R.7(2), C.P.C.

Zaheer Ahmad Qadiri for Petitioners.

Muhammad Munir Piracha for Respondents Nos.3 to 6.

Nemo for the Remaining Respondents

Date of hearing: 30th July, 2001.

2002 M L D 617

[Lahore]

Before Abdul Shakeor Paracha, J

MUHAMMAD USMAN‑‑‑petitioner

versus

MUHAMMAD NAWAZ and others‑‑‑Respondents

Civil Revision No. 195 of 1991, heard on 4th October, 2001.

(a) Specific Relief Act (I of 877)‑‑‑

‑‑‑‑S.12‑‑‑Suit for possession‑‑‑Agreement to sell‑‑‑Suit for possession on the basis of agreement to sell not maintainable.

Zafar Ahmad v. Mst. Hajran Bibi PLD 1986 Lah. 399 ref.

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

‑‑‑‑S.12(2) & 0.1, R.10‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Suit for possession based on agreement to sell‑‑‑During pendency of suit, one R. also claiming to have purchased suit property made application for impleading him as party on the ground that he had purchased the suit property and possession was handed over to him‑‑‑Defendant made conceding statement in favour of plaintiff before decision of such application, but Trial Court dismissed the suit as not maintainable‑‑­Plaintiffs filed appeal on 15‑6‑1985 and on 16‑6‑1985 statement of defendant was recorded and 'suit was decreed by Appellate Court‑‑‑R challenged the decree on ground of fraud through application under S.12(2), C.P.C., which was accepted by the Appellate Court and decree was set aside‑‑‑Validity‑‑‑Trial Court was under legal obligation to decide miscellaneous application filed by parties during pendency of suit‑‑‑Trial Court, at the time of rejection of plaint on 15‑6‑1985, had not passed any order on the application of R ‑‑‑Appeal was filed on 15‑6‑1985 and on the next date, i.e. on 16‑6‑1985 in a clandestine manner .on the conceding statement and decree was obtained from Appellate Court only to frustrate the right of R. to get his application adjudicated‑‑‑R was not party to the suit, but he could file application under S.12(2), C.P.C.‑‑‑Appellate Court had not committed any material irregularity or jurisdictional error in accepting application under S.12(2), C.P.C. in circumstances.

Khawaja Muhammad Yousaf v. Federal Government through Ministry of Kashmir Affairs and others 1999 SCMR 1516 and Mst: Kishwar Sultana v. Muhammad Nazir and another 2000 CLC 1719 ref.

Irfan Sheikh for Petitioner.

Allah Wasaya Malik for Respondents.

Date of hearing: 4th October, 2001.

2002 M L D 623

[Lahore]

Before Ijaz Ahmad Chaudhary, J

JAVAID IQBAL and another‑‑‑Petitioners

versus

ASSISTANT COMMISSIONER/RETURNING OFFICER, UNION COUNCIL CHUNIAN and 5 others‑‑‑Respondents

Writ Petition No. 13407 of 2001, decided on 28th September, 2001.

Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑Rr. 11, 39 & 40(3)‑‑‑Punjab Local Government Elections Ordinance (V of 2000), Ss. 12. & 21‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Re‑counting of votes‑‑‑Directions issued by Chief Election Commissioner‑‑‑Petitioners being dissatisfied with the counting of votes, immediately challenged the same before the Chief Election Commissioner who passed direction to the Returning Officer for re‑counting of the votes‑‑‑Returning Officer did not comply with the directions passed by the Chief Election Commissioner and instead of re­counting the votes, notified the result of election‑‑‑Validity‑‑‑Votes in the present case, were not re‑counted and the result was notified against the directions of the Chief Election Commissioner, petitioners were deprived of their right which accrued to them before issuance of Notification in their favour for re‑counting of votes‑‑‑Where the Returning Officer failed to act upon the orders of the Chief Election Commissioner, the notification of election result would be illegal, void, without lawful authority and of no legal effect‑‑‑Such order passed by the Returning Officer was set aside‑‑‑Constitutional petition was allowed accordingly.

1999 SCMR 2999 and 1999 MLD 2602 ref.

Dr. Z. Badar Awan for Petitioner.

Miss Azra Riaz for Respondent No.5.

Rana Muhammad Arif on behalf of Qazi Muhammad Shafique for Respondent No.3.

Ch. Muhammad Jehangir Wahla, A.A.‑G.

Nayyar Iqbal DDO (R), Chunian.

2002 M L D 625

[Lahore]

Before Ijaz Ahmad Chaudhary, J

NAWAZ alias BATTA and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.4390‑B of 2001, decided on 24th September 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10/11‑‑‑Bail, grant of‑‑‑Alleged abductee in her own statement recorded during the investigation under 5.164, Cr.P.C. had not supported the prosecution and had stated that she had contracted marriage with the accused with her own free‑will and consent‑‑­Nikahnama was also produced before the concerned Authorities‑‑­Subsequent statement made by the alleged abductee in which she had stated that the accused alongwith five others had committed Zina‑bil‑Jabr with her could be examined during the trial when she would be subjected to cross‑examination‑‑‑Accused had succeeded for the time being in making out case for grant of bail‑‑‑Case against the accused being of further inquiry they were admitted to bail.

Nazar Abbas Syed for Petitioners.

Abdullah for the State.

2002 M L D 632

[Lahore]

Before Maulvi Anwarul Haq, J

GHULAM QADIR‑‑‑Petitioner

versus

AHMAD ALI and 8 others ‑‑‑Respondents

Civil Revision No,:2450 of 1985, heard on 27th September, 2001

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXIII, R.1, Ss. 11 & 115‑‑‑Withdrawal of suit‑‑‑Principles of res judicata‑‑‑Applicability‑‑‑Suit for specific performance of agreement to sell filed by the petitioner was dismissed as withdrawn and subsequently the present suit was filed against the petitioner‑‑‑Trial Court passed a decree for a sum of Rs.8,000 in favour of the petitioner‑‑‑Appellate Court allowed the appeal on the ground that the earlier suit was dismissed and principle of res judicata was applicable against the petitioner‑‑‑Validity‑‑‑Withdrawal of suit was governed by O.XXIII, R.1, C.P.C. and consequence of withdrawal of suit by plaintiff under O.XXIII, R.1(1), C. P. C. were stated in O.XXIII, R.1(3), C.P,C.‑‑‑Where plaintiff withdrew from suit unconditionally then he would be precluded from instituting fresh suit in respect of the same subject‑matter and as such it was the only penal consequence provided by law in the matter of unconditional withdrawal of a suit by the plaintiff‑‑­Where the Court had decided nothing while permitting the plaintiff to withdraw a suit, such withdrawal of suit did not operate as res judicata‑‑‑When suit was withdrawn, there was no final decision by a Court‑‑‑Petitioner had not filed the present suit, rather he was defending the suit filed against him by the respondents‑‑‑No law existed which debarred a defendant from raising and pressing a defence unless and until it was shown that the matter had been finally decided in the earlier suit‑‑‑Judgment passed by the Lower Appellate Court proceeded on erroneous assumption and the Court had acted with material irregularity in exercise of jurisdiction‑‑­Appellate Court failed to decide the appeal on its merits with reference to pleadings and evidence on record, impugned judgment and decree were set aside.

Ustad Muhammad Iqbal for Petitioner.

Muhammad Zafar Chaudhry for Respondents.

Date of hearing: 27th September, 2001.

2002 M L D 636

[Lahore]

Before Syed Zahid Hussain, J

MAQSOOD AHMAD---Petitioner

versus

Mst. TAHIRA PARVEEN---Respondent

Civil Revision No. 1364 of 1998, heard on 25th September, 2001.

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

----O.IX, Rr.8, 9 & S.115---Suit dismissed for non-prosecution--­Restoration of---Proceedings on interlocutory matter were pending when the suit was dismissed for non-appearance of the plaintiff---Trial Court declined to restore the suit whereas Appellate Court restored the same in exercise of appellate jurisdiction---Validity---Where certain interlocutory matter had to be considered by the Trial Court, on such date the suit could not be dismissed for non-prosecution---Appellate Court had rightly, for the valid reasons, set aside the order passed by the Trial Court---Even High Court while exercising revisional jurisdiction under S.115, C.P-C. could order the rectification of illegality which had been committed by the Trial Court and order the restoration of the suit---No irregularity or illegality was committed by the Appellate Court in passing the order of restoration---Revision was dismissed in circumstances.

Mst. Ghulam Sakina and b 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; Allah Ditta v. Aziz Din PLD 1981 Lah. 508; Rehmatullah and 2 others v. Lal Muhammad PLD 1986 Quetta 121; Qaim Ali Khan v. Muhammad Siddique 1987 SCMR 733; Hashim Khan v. National Bank of Pakistan 1992 SCMR 707 and Muhammad Afzal v. Small Business Finance Corporation and 4 others 1997 CLC 1080 ref.

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

----O. IX, Rr. 8 & 9---Suit dismissed for non-prosecution---Restoration of---Limitation---Plea raised by defendant was that application for restoration as well as appeal before Appellate Court were filed beyond the period of limitation---Validity---Where order dismissing the suit could not be passed by the Trial Court, the same could be ignored being an order void ab initio, nullity and passed without jurisdiction---Question of limitation would hardly be relevant in circumstances.

Mian Bashir Zafar for Petitioner.

Tahir Qureshi for Respondent, Date of hearing: 25th September, 2001.

2002 M L D 641

[Lahore]

Before Maulvi Anwarul Haq, J

SHAUKAT ALI‑ ZAIDI‑‑‑Petitioner

versus

PAKISTAN through Secretary Establishment, Government of Pakistan, Islamabad and 4 others‑‑‑Respondents

Writ Petition No. 17358 of 1993, heard on 26th September, 2001.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Competitive examination‑‑‑Waiting list‑‑‑Grievance of the petitioner was that he being one of the candidates qualified for the post of Judicial Members for Income Tax Appellate Tribunal had been declared as alternative candidate and there being a vacancy created in the department the petitioner was not so appointed‑‑­Validity‑‑‑Maintaining of waiting list by Service Commission even in case of qualifying examination, was not approved by Supreme Court in case titled Musa Wazir and 2 others v. N.‑W.F.P. Public Service Commission, reported as 1993 SCMR 1124‑‑‑After date of decision in Musa Wazir's case no further recommendation could be made by the Commission on the basis of the waiting list of candidates‑‑‑Petitioner was asking for relief, the grant whereof stood prohibited under the judgments passed by Supreme Court referred above‑‑‑‑Constitutional petition was dismissed in circumstances.

Musa Wazir and 2others v. N.‑W.F.P. Public Service Commission 1993 SCMR 1124 and Dr. Faizur Rehman v. N.‑W.F.P. Public Service Commission 1996 SCMR 589 ref.

Zamir Hussain for Petitioner.

Nemo for Respondents.

Date of hearing: 26th September, 2001.

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2002 M L D 657

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

SHAHAMAT ALI ‑‑‑Petitioner

versus

CHIEF LAND COMMISSIONER/SENIOR MEMBER, BOARD OF REVENUE, PUNJAB LAHORE and 5 others‑‑‑Respondents

Writ Petitions Nos.4211 of 1995, heard on 10th October, 2001.

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

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Concurrent findings of fact by the Tribunal below‑‑‑Interference by High Court‑‑‑Scope‑‑‑Petitioners had sold land in question in violation of terms and conditions of the grant‑‑­Validity‑‑‑Where all the Tribunals below had given concurrent findings of fact against the petitioners, the Constitutional petition was not maintainable‑‑‑High Court had no jurisdiction to substitute its own findings in place of Tribunals below‑‑‑Constitutional petition was dismissed in circumstances.

Khuda Bukhsh v. Muhammad Sharif and another 1974 SCMR 279 and Board of Intermediate and Secondary Education, Lahore v. M. Mussadaq Naseem Sindhu PLD 1973 Lah. 600 ref.

(b) Land Reforms Regulations, 1972 (M.L.R. 115)‑‑‑

‑‑‑‑Para. 29‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Alternate remedy‑‑‑Petitioner, instead of availing remedy before Federal Land Commission, under para.29 of M.L.R. 115 of 1972, filed the Constitutional petition‑‑‑Such Constitutional petition was not maintainable.

Ch. Muhammad Ismail's case PLD 1996 SC 246 rel.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Grant of land‑‑‑Violation of terms and conditions of grant‑‑‑Government land was granted to the petitioner who sold the same in. violation of terms and conditions of the grant, resultantly the grant was cancelled by the Government ‑‑‑Validity‑‑­Where the petitioner had violated the terms and conditions, he did not approach High Court with clean hands‑‑‑He who seeks equity, must come to the Court with clean hands‑‑‑High Court declined to exercise discretion in favour of the petitioner in circumstances.

Nawabzada Ronaq Ali's case PLD' 1973 SC 236 rel.

Ms. Atia Mehmood for Petitioner.

M. Rashid Ahmed for Respondents.

Date of hearing: 10th October, 2001.

2002 M L D 665

[Lahore]

Before Mrs. Nasira Iqbal, J

SHAUKAT ALI ‑‑‑Petitioner

versus

Mst. MUSSRAT SULTANA and 2 others‑‑Respondents

Writ Petition No.8891 of 2001, decided on 26th October, 2001.

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

‑‑‑‑S.25‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Custody of minor son‑‑‑Guardian Judge handed over custody of minor son A aged 6 years to his mother, who had already got custody of minor son R aged 5 years‑‑‑Decisions of Guardian Judge was affirmed in appeal‑‑‑Validity‑‑‑Father had re‑married and had two daughters from second wife, whereas mother of minors had not re‑married‑‑‑Minor son R. was being looked after properly wile living with real mother and had answered Court's questions intelligently‑‑‑Mother of minors was living in Sargodha, where her father being civil servant was posted, whereas minor A was living with paternal grandmother in the village‑‑‑Both the minors were very close to each other, and it would be in their interest and welfare that they should be brought up together‑‑‑Affection and devotion of real mother for the minors could not be matched by anyone else‑‑‑Mother of minors could give them constant attention, who had committed to bring up the children‑‑‑No infirmity and impropriety was found in orders of Courts below, which could not be interfered in exercise of Constitutional jurisdiction‑‑‑Constitutional petition was dismissed with observations that father might meet both the minors on alternate Saturday in the Court of Guardian Judge, Sargodha, where father was presently posted.

Malik Muhammad Imtiaz Mahal for Petitioner.

Syed Waseem Haider for Respondent No. 1

2002 M L D 667

[Lahore]

Before MansoorAhmad, ASHIQ HUSSAIN SHAH through Legal Heirs and 3 others‑‑‑Petitioners

versus

MUHAMMAD SHAM and 46 others‑‑‑Respondents

Civil Revision. Petition No. 129‑D of 1993, decided on 2nd October, 2001.

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

‑‑‑‑S.8‑‑‑Suit for possession‑‑‑Adverse possession, claim by defendant‑‑­Copy of Register Haqdaran showed that title of the suit land vested with the plaintiffs and possession of the defendants was shown as tenants in one of the column of the Jamabandi‑‑‑Only in one of the entry in the Jamabandi it was mentioned " asharah Malikan Nautore" but in all other columns of Register Haqdara , the defendants were shown as tenants‑‑­Mere entry "Basharah Malik n Bawajah Nautore" would not prove the status of the defendant, because, if the land was held by a tenant under another the tenant would continue to be a tenant even it the possession of the land was acquired by him on account of "Nautore"‑‑‑Basharah Malikan Bawajah Nautore would not amount to adverse possession and once a tenant was always a tenant‑‑‑Trial Court was not justified to dismiss the suit‑‑‑Appellate Court below had rightly reversed judgment and decree passed by the Trial Court‑‑‑In absence of arty infirmity or material irregularity in judgment and decree passed by the Appellate Court below, same could not be interfered with by the High Court in exercise of its revisional jurisdiction.

(b) Adverse possession‑‑‑

‑‑‑‑Proof‑‑‑Entry in Jamabandi by itself was not sufficient to constitute adverse possession‑‑‑Mere entry in the Revenue Record was not an assertion of hostile title and mere non‑payment of rent by the tenant or a mere entry in Jamabandi was not such clear evidence for suggesting the adverse possession.

Lala and others v. Mst. Jantay 1968 SCMR 131 ref.

Qazi Khurshid Alam for Appellants.

Aziz Ahmad Malik for Respondents.

Date of hearing: 12th September, 2001.

2002 M L D 672

[Lahore]

Before Ch. Ijaz Ahmad, J

KABIR KHAN‑‑‑Petitioner

versus

GOVERNMENT OF PUNJAB through Secretary, Local Government and Rural Development Department and another‑‑‑Respondents

Wiit Petition No. 8580 of 1995, heard on 5th October, 2001.

(a) Punjab Local Government Ordinance (VI of 1979)‑‑‑

‑‑‑‑Ss.135 & 166‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Show‑cause notice‑‑‑Constitutional petition was not maintainable against the issuance of show‑cause notice to the petitioner as petitioner had alternative remedies against issuance of said notice before the Authorities under provisions of Punjab Local Government Ordinance, 1979, either by filing reply of the notice or to avail right of appeal/revision before the higher forum‑‑­-Opportunity must be given to the Authority to adjudicate the matter first and the petitioner should approach the High Court after availing all the remedies provided under the statute.

Messrs Car Tunes v. Income Tax Officer PLD 1989 Kar. 337; Maqsood Ahmad v. Settlement Department 1986 CLC 2419; Subedar­Major Gul Zaman v. 'Settlement Commissioner PLD 1976 Lah. 1454, Sindh Employees Social Security v. Dr. Munawar Ali Taj PLD 1975 SC 450; Mst. Shagufta Begum v. Income Tax Officer PLD 1989 SC 360: Nabi Bakhsh Khoso v. National Bank of Pakistan 2000 SCMR 1017; Pak‑Arab Fertilizer (Pvt.) Ltd. v. Deputy Commissioner, Income‑tax 2000 PTD 263; Liaqat Ali v. Assistant Commissioner, Income‑tax 2000 PTD 369; Amin Textile Mills (Pvt.) Ltd v. Commissioner of Income‑tax 2000 SCMR 201; Pir Sabir Shah v. Shad Muhammad Khan, N.‑W.F.P. and another PLD 1995 SC 66; The Collector Customs Karachi v . Messrs New Electronics (Pvt.) Ltd. and 59 others PLD 1994 SC 363; Riffat Askari v. State PLD 1997 Lah. 285; Al‑Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal. 1993 SCMR 29 and

Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC (Pak.) 9 ref.

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

‑‑‑‑Arts. 201 & 189‑‑‑Judgment of superior Courts‑‑Binding force of‑‑­Judgment of the Supreme Court and High Court was binding on each and every organ of the State‑‑‑Authorities would be duty bound to decide the matter in accordance with the dictum laid down by the superior Courts

Ch. Bashir Ahmad for Petitioner.

Malik Akhtar Hussain Awan for Respondents.

Date of hearing: 5th October, 2001.

2002 M L D 676

[Lahore]

Before Abdul Shakoor Pardcha, J

MUHAMMAD ASLAM‑‑‑Petitioner

versus

Malik MAQSOOD AHMED and others‑‑‑Respondents

Civil Revision No. 1871 of 1990, decided on 4th October, 2001.

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

‑‑‑‑Ss. 54 & 55‑‑‑Civil Procedure Code (V of 1908), Ss. 11, 115 & 0.1, R.8‑‑‑Suit for perpetual and mandatory injunction‑‑‑Land dedicated to "Rafah‑e‑Aama/Ghair Mumkin Chhappar"‑‑‑Right to use‑‑‑Extent‑‑­Respondent filed suit claiming to be co‑sharer in Shamlaat Deh land earmarked as Ghair Mumkin Chhappar for use and benefit of inhabitants of the village, which had been forcibly occupied by petitioners‑‑­Respondent produced in evidence copy of judgment and decree passed in a representative suit between parties in respect of suit‑land restraining petitioners from raising construction thereon‑‑‑Trial Court dismissed the suit, but Appellate Court decreed same by accepting the respondent's appeal holding that on the principle of res judicata, it could not be re­heard, and that parties could not claim exclusive possession over Shamlaat Deh land of kind of Ghair Mumkin Chhappar meant for use and benefit of general public‑‑‑Validity‑‑‑Father of petitioner was party to earlier suit, and judgment and decree therein was not challenged by him in appeal, which had attained finality and it could not be re‑heard and decided on the principle of res judicata under S.11, C.P.C.‑‑‑Suit­land had been dedicated to "Rafah‑e‑Aama"/Ghajr Mumkin Chhappar for general use and benefit of all villagers and all 'concerned individuals had to accept the same alongwith all its characteristics, which could not be extinguished merely on the ground of raising construction on it or by its allotment or purchase‑‑‑Petitioners might have some rights in suit land being a co‑sharer, but its characteristics could not be changed and it would remain as Ghair Mumkin Chhappar‑‑‑Judgment and decree of Trial Court were the result of misreading of evidence and contrary to law, which had rightly been set aside by Appellate Court through impugned judgment and decree, which did not suffer from any jurisdictional error, illegality or regularity in circumstances.

Muhammad Sharif and 3 others v Ghulam H4ssam and another 1995 SCMR 514; Atta Muhammad v. Sahibzada Mew Ahmad and others 1992 SCMR 138 and Ali Ahmad and Others Y, Municipal Committee, Talagang through its Administrator and 2 c)thers2001 SCMR 585 ref.

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

‑‑‑‑S.115(a), 2nd proviso [as added by Civil' Procedure Code (Amendment) Act (III of 1992)]‑‑‑Revision‑‑‑Limitation‑‑Section 115, C.P.C., providing limitation of 90 days having subsequently been amended revision petition against judgment and decree used before such amendment would not be hit by principle of laches, as no period of limitation was prescribed in law at the relevant time.

(c) Co‑sharer‑‑‑

‑‑‑‑Joint immovable property‑‑‑Co‑sharer's right ‑‑‑Extent.‑‑Each co­sharer, irrespective of his share in joint property, is deemed to be interested in every inch thereof and he‑ cannot be allowed to act in a manner constituting an invasion on the right of other co‑sharer‑‑­Co‑sharer in possession cannot, change the nature of property in his possession unless partition ,takes place by metes and bounds.

Ali Gohar Khan v. Sher Ayaz and others 1981 SCMR 130 and Muhammad Sharif and 3 others v. Ghulam Hussain qnd another 1995 SCMR 514 ref.

(d) Words and phrases‑‑‑

‑‑‑‑"Ghair Mumkin Chappar"‑‑‑Connotation‑‑‑Land under "Ghair Mumkin Chhappar" can only be claimed for general use and benefit, and no individual has any legal authority or title to rise construction thereon.

Taki Ahmad Khan for Petitioner.

Amjad Pervaiz Malik for Respondent.

Date of hearing: 25th September, 2001

2002 M L D 685

[Lahore]

Before Muhammad Akhtar Shabbir, J

Haji FAQIR BAKHSH‑‑‑Petitioner

Versus

DEPUTY COMMISSIONER, RAHIM YAR KHAN and another‑‑‑Respondents

Writ Petition No. 159 of 2001, decided on 29th January, 2001. .

(a) Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S. 3(2)(c)‑‑‑Punjab Local Government Elections Rules, 2000, Rr.7 & 8‑‑‑Constitution of Pakistan (1973). Art.199‑‑‑Constitutional petition‑‑­‑Delimitation of union council‑‑‑Delimitation of union council had been made by Authority which was a forum of exclusive jurisdiction in the matter of election‑‑‑Said delimitation was made, keeping in view, the compactness of blocks and in the interest of local community‑‑‑Order passed by Authority of exclusive jurisdiction after applying its mind and after appraisal of evidence, could not be interfered with by the High Court when said order was not suffering from any illegality.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑ Scope‑~‑‑Order of a Tribunal o€ exclusive jurisdiction, if passed with application of mind and appraisal of evidence could not be interfered with by the High Court on the ground that some other opinion could be formed about the matter‑‑‑High Court was not competent to interfere with the order of the Tribunal on purely equitable consideration.

Mian Abdul Rehman and others v. Punjab Local Councils Elections Authority NLR 1992 Civil 441; Syed Maqbool Hussain Shah v. Punjab Local Councils Authority and others 1999 MLD 2813; Muhammad Hayat Lak v: Punjab Local Councils Elections Authority and others NLR 1992 Civil 474 and Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139 ref.

Ch. Muhammad Ashraf, Mohandra for Petitioner.

Ch. Shafi Muhammad Tariq and Muhammad Bashir, A.A.‑G. for Respondents.

Date of hearing 29th January, 2001.

2002 M L D 688

[Lahore]

Before Jawwad S. Khawaja, J

M. AYUB YOUNUS ADHI‑‑‑Petitioner

versus

LAHORE STOCK EXCHANGE GUARANTEE LIMITED through Secretary/President and 26 others‑‑‑Respondents

Writ Petition No. 10086 of 2000, heard on 13th December, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXIII, R.1‑‑‑Withdrawal of suit‑‑‑Filing of fresh suit‑‑‑Court allowed withdrawal of suit simply recording intention of the plaintiff to avail remedy available before the appropriate forum for filing fresh suit‑‑‑Court did not record order permitting the plaintiff to file fresh suit‑‑‑Even if the order of the Court could be construed as permitting the plaintiffs to file a fresh suit, the plaintiff would only be entitled to file fresh suit subject to applicability and compliance of legal provisions including those contained in O.XXIII, R.1, C.P.C.

Messrs Ilamuddin & Sons v. Asghar Ali and another 1970 SCMR 233 ref.

Rashdeen Nawaz Kasuri for Petitioner.

Abid Aziz for Respondent No. 1.

Ch. Nusrat Javed Bajwa for Respondents Nos. 10, 13 to 15 and 19

Rana Muhammad Asad Abbas for Respondent No.26

Date of hearing: 13th December, 2000.

2002 M L D 692

[Lahore]

Before Jawwad S. Khawaja, J

Messrs SHADAB TEXTILE MILLS‑‑‑Petitioner

versus

ZILA COUNCIL, SHEIKHUPURA and others‑‑‑Respondents

Writ Petition No.4152 of 2001, decided on 24th October, 2001.

Punjab Local Government Ordinance (VI of 1979)‑‑‑

‑‑‑‑S.116‑‑‑Constitution of Pakistan (1973), Art.199, Fourth Sched., Legislative List, Part I, Entry 48‑‑‑Constitutional petition‑‑‑Imposition of professional tax on Corporation by Zila Council vide Notification No.429/T.O., dated 19‑7‑1999‑‑‑Validity‑‑‑Petitioner being a corporate body was a Corporation, and as such a tax on such body could not be levied by Zila Council, because Federation had the exclusive power to do so by virtue of Entry No.48 of Part I of Federal Legislative List of the Constitution‑‑‑Levy of professional tax by Zila Council on a Corporation such as the petitioner, was not Constitutionally permissible‑‑‑Constitutional petition was allowed in circumstances.

Imran Aziz Qureshi for Petitioner.

Ch. Abdul Waheed for Zila Council.

Zahid Aslam Khan, A.A.‑G.

Date of hearing: 24th October, 2001.

2002 M L D 693

[Lahore]

Before, Muhammad Farrukh Mahmud, J

GHULAM RASOOL---Petitioner

versus

PROVINCE OF PUNJAB---Respondent

Civil Revision No.777 of 2001, decided on 1st January, 2002.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr. 1 & 2 & S.115---Interim injunction, grant of--­Concurrent findings of facts by the Courts below---Dispute was with regard to restoration of watercourse in the fields of defendant---Plaintiff asserted- that the watercourse never existed and the Authorities had wrongly restored the same---Both the Courts below denied interim injunction in favour of the plaintiff---Validity---Assertion of the plaintiff could be looked into after recording of evidence---High Court in such cases would not interfere in the concurrent findings of fact---Plaintiff failed to point out any illegality, non-reading or misreading of evidence nor notified any jurisdictional defect---Balance of convenience was not in favour of the plaintiff and no irreparable loss would be caused to the plaintiff if the watercourse was allowed to run---Order passed by the Authorities prima facie, was valid and legal---High Court declined to grant interim injunction.

Ms. Samina Qureshi for Petitioner.

2002‑M L D 696

[Lahore]

Before Tanvir Bashir Ansari, J

Sahibzada AZHAR SALEEM‑‑‑Petitioner

versus

MUHAMMAD HANIF‑‑‑Respondent

Civil Revision No.466 of 1995, heard on 1st November, 2001

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

‑‑‑‑0. I, Rr.3 & 10‑‑‑Necessary parties, impleading of‑‑‑Principle‑‑‑To avoid multiplicity of litigation and miscarriage of justice, relevant transaction or series of acts or transactions had to be ascertained in respect of which it could be determined as‑to who were necessary or proper parties.

Saleem Begum and others v. Olad Ali Shah and others NLR ,1981 SCJ 598 ref.

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

‑‑‑‑O. XXXVII, Rr.2, 3 & 7‑‑‑Suit for recovery of amount on basis of pronote‑‑‑Leave to defend suit‑‑‑Suits upon bills of exchange, hundies or promissory notes, could be instituted in a specific manner in a procedure which was prescribed to be summary in nature‑‑‑Once leave to defend the suit was granted, suit filed under O. XXXVII, C.P.C. would partake the nature and character of a normal civil suit for recovery of money‑‑‑Procedure as provided under O.XXXVII, R.7 would be the same as the procedure in suits instituted in.‑the ordinary manner.

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

‑‑‑‑S.115‑‑‑Revisional jurisdiction, exercise of‑‑‑Scope‑‑‑Court below having exercised its jurisdiction with material irregularity order passed by such Court was set aside by High Court in exercise of its revisional jurisdiction.

Rana Sardar Ahmed for Petitioner.

Sardar Muhammad Hussain Khan for Respondent

Date of hearing: 1st November, 2001

2002 M L D 700

[Lahore]

Before Mansoor Ahmad, J

GHANZENFER ALI KHAN‑‑‑Petitioner

versus

COLLECTOR CUSTOMS, LAHORE and others‑‑‑Respondents

Writ Petition No. 1012 of 1995, decided on 26th July, 2001.

Customs Act (IV of 1969)‑‑‑

‑‑‑‑S.162 [as amended by Federal Laws (Revision and Declaration) Ordinance (XXVII of 1981)]‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Search warrant ‑‑‑Illaqa Magistrate on application made by Customs Authority issued a search warrant under S.162 of the Act, for seizure of non‑duty paid contraband goods lying in a store‑‑‑Intelligence Officer (Customs) alongwith his staff members raided the store and seized the goods‑‑‑Contention of petitioner was that power to issue warrant under S.162 of the Customs Act, 1969 vested only in Judicial Magistrate and not Illaqa Magistrate‑‑‑Validity‑‑‑Search warrant issued by Illaqa Magistrate was without any lawful authority and all proceedings and action taken thereupon and result followed therefrom were of no legal effect‑‑‑High Court accepted Constitutional petition with direction to Authorities to restore the consignment seized by them through such process of search.

Collector of Customs v. Muhammad Akram RLD 1999 Pesh. 33 and Muhammad Mahfooz v. Collector of Customs (Preventive), Custom House, Karachi and 2 others PLD 1986 Kar. 28 ref.

Kh. Adnan for Petitioner.

K.M. Virk for Respondent

2002 M L D 707

[Lahore]

Before Tanvir Bashir Ansari, J

MUHAMMAD SHARIF‑‑‑Appellant

versus

Mst. ZEENAT BIBI and others‑‑‑Respondents

Regular Second Appeal No. 33 of 1988/BWP, heard on 19th September, 2001.

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

‑‑‑‑S.12‑‑‑Civil Procedure Code (V of 1908), O.XX, R.5‑‑‑Suit for specific performance of agreement‑‑‑Decision of issues jointly‑‑‑Trial court framed issues and decided them jointly‑‑‑Provisions of O.XX, R.5, C.P.C. though required the Court to state its decision on each issue but issues framed by the Trial Court were inter‑linked with the controversy between the parties‑‑‑Trial Court, in order to avoid repetition of facts and evidence considered appropriate to decide all the connected issues together‑‑‑Validity‑‑‑No illegality was found in the procedure adopted by the Trial Court and objection raised in that respect was too hypertechnical to, bear any scrutiny especially when no prejudice had been caused to the opponent by the said regulatory procedure which in fact 'had advanced the cause of justice.

Umer Din v. Ghazanfar Ali 1991 SCMR 1816 and Hafiz Ali Ahmed v. Muhammad Abad PI.D 1999 Kar. 354 ref.

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

‑‑‑‑S.100‑‑‑Second appeal‑‑‑Scope‑‑‑High Court in regular second appeal could interfere only when decision of Court below was contrary to law or usage having the force of law; said decision had failed to determine same material issue of law; and in case of a substantial error or defect in the procedure provided by the Code of Civil Procedure or by any other law for the time being in force which could possibly produce error or defect in the decision of case upon merit‑‑‑‑Intention of the law was not to strike down every insignificant departure in the procedure‑‑­Interference could only be made where injustice would result on account of the irregular exercise of jurisdiction which might have affected the ultimate decision of the case were concurrent findings of Courts below were result of meticulous appraisal of evidence on the record and in absence of any non‑reading or misreading of evidence on the record such findings could not be interfered with in second appeal by the High Court.

Muhammad Jaffar Hashmi for Appellant.

Imtiaz Ahmed Gujjar for Respondents.

Date of hearing: 19th September, 2001.

2002 M L D 712

[Lahore]

Before Asif Saeed Khan Khosa, J

MUNIR---Petitioner

Versus

STATE---Respondent

Criminal Miscellaneous No.6052-B of 2001, decided on 4tb December, 2001.

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

----S. 497(a)---Penal Code (XLV of 1860), S.395---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/11---Bail, grant of---F. I. R. had been lodged with a delay of nine days and even in that belated F.I.R. the accused had not been nominated as one of the perpetrators of the offences in question---Name of the accused had surfaced in the case for the first time through a supplementary statement made after more than three years from the alleged occurrence--­Implication of the accused was on the basis of some statements made by co-accused before the complainant---Statement made by the alleged abductee had shown that the accused was not the principal- accused and his role in occurrence was secondary in nature as compared to the co­accused---Allegations levelled by the alleged abductee, against the accused at such a belated stage, had made the case of the accused .to be one of further inquiry into his guilt---In a case calling for further inquiry into the guilt of accused bail would be granted to him as of right and not by way of grace or concession---Whenever a question of propriety was confronted with a question of right, the right must prevail---Accused was granted bail.

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

----S. .497---Bail, grant of ---Principles---Further---inquiry and commencement of trial---Effect---In a case calling for further inquiry into the guilt of an accused, bail was to be granted to such an accused as of right and not by way of grace or concession---Bail some times was refused to an accused on the consideration of commencement of a trial, but that consideration was to be based purely upon propriety---Whenever a question of propriety was confronted with a question of right, the latter must prevail---Commencement of a trial would pose no insurmountable hurdle in the way of bail when the accused was succeeded in making out a case of further inquiry.

Muhammad Ismail v. Muhammad Rafiq and another PLD 1989 SC 585 reef.

Khalid Aseer Chaudhry for Petitioner.

Latif Sheikh for the State.

Date of hearing: 4th December; 2001.

2002 M L D 721

[Lahore]

Before Riaz Kayane and Bashir A. Mujahid, JJ

ALLAH RAKHA and another‑‑‑Appellants

versus, STATE‑‑‑Respondent

Criminal Appeals Nos. 54‑1, 21‑J of 2001 and Murder Refrence No.9 of 2000, decided on 10th July, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 392/411/457/34‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)(4)‑‑‑Appreciation of evidence‑‑‑Ocular account furnished by the prosecution witnesses, the alleged victims of Zina‑bil‑Jabr by the accused had not been corroborated by the medical evidence‑‑ ‑Offence having not been proved against the accused beyond reasonable doubt, both the accused were acquitted from the charge under S.10(3)(4), Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and their conviction and sentence were set aside‑‑‑Ocular account furnished by the prosecution witnesses with regard to commission of dacoity had fully been corroborated by recovery of looted articles‑‑‑No reason existed to substitute or to falsely implicate the‑ accused‑‑­Conviction and sentence of the accused under. Ss.457/392/34, P.P.C. was proper and justified and same was maintained‑‑‑Conviction of the accused under 5.411, P. P. C. being illegal, was not sustainable under the law and same was also set aside.

S. Masaod Ahmad Gillani for Appellant:

Mian Muhammad Bashir, A.A.‑G. for the State.

Date of hearing: 10th July, 2001.

2002 M L D 732

[Lahore]

Beford Muhammad Sair Ali, J

Haji MUHAMMAP ZAKRIA and another‑-‑Petitioners

versus

JAVED.AHIVIAD and 5 others‑‑‑Respondents

Writ Petitions Nos, 16644 and 14980 of 1993, heard on 24th September, 2001.

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)‑‑‑

‑‑‑‑Ss. 2(J), 10 & 15‑‑‑Constitution of Pakistan (1973), Art.199‑‑­-Constitutional petition‑‑‑Disputed path in Consolidation Scheme was carved out in the middle of petitioners' garden as a passage only to the Land/Dera of one of the respondents, which ended there‑‑‑Such Scheme qua disputed path was neither implemented nor such path was opened for public during the last 33 years, but respondents had been using the alternate/existing path created voluntarily from the land surrendered by predecessor of petitioners=‑‑Such inaction and indolence on the part of Consolidation Authorities and the respondent had created rights in favour of petitioners that their garden would not be bifurcated/fragmented into pieces through opening of disputed path, which was not a path of general public utility‑‑‑Additional Commissioner after spot visit had confirmed such spot realities as having been adopted, maintained, implemented and continued by residents of the village through consensus‑‑ ‑Such a consensus was the basis and spirit of statutory intendment of the West Pakistan Consolidation of Holdings Ordinance, 1960 and the Rules framed thereunder‑‑‑Petitioners' assertions contained in Constitutional petition regarding existing path, its use and non implementation/non‑opening of 'disputed path would be deemed to be admitted by principle of non‑traverse in absence of specific and particularized denial thereof by the respondent‑‑‑Board of Revenue while setting aside the order of Additional Commissioner had not taken account of non‑implementation of such Scheme qua the disputed path‑‑‑Change of disputed path to existing path had not caused any prejudice or injury to the residents of the village including the respondent, whereas change from existing route to disputed route would create disharmony, disputes and bad blood between the landowners‑‑‑Acceptance of Constitutional petition would neither violate the spirit of law nor would there be a departure from the settled law refusing to grant a writ against "change of spot position" to accommodate "better claim" of a party (1988 SCMR 310) but would advance the principle of law to reverse an "unjust order" for abviating the injustice likely to occur by change of spot realities‑‑‑Petitioners being transferees of land were covered by definition of "land owner" under S.2(J) of the Ordinance and right to sue had accrued to them upon threatened invasion‑of opening the disputed path‑‑‑Case was fit one to exercise judicial and equitable jurisdiction under Art. 199 of the Constitution to maintain the preponderance of existing facts and equities between parties as against the abandoned conferment in Consolidation Scheme‑‑­High Court accepted the Constitutional petition, set aside the order of Board of Revenue and upheld the order of Additional, Commissioner.

1988 SCMR 310(1) and 1987 MLD 306 ref.

C.M. Sarwar for Petitioners.

Ch. Aamir Rehman for Respondent.

Date of hearing: 24th September, 2001.

2002 M L D 741

[Lahore]

Before Tanvir Bashir Ansari, J

GHULAM MUHAMMAD ‑‑‑Petitioner

versus

KHAN MUHAMMAD and others‑‑‑Respondents

Civil Revision No. 186‑D of 1985, decided on 22nd October, 2001.

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

‑‑‑‑0.111, R.4‑‑‑Appointment of counsel‑‑‑Revocation of Vakalatnama‑‑-Procedure‑‑Appointment of a counsel made through a Vakalatnama which was duly filed in the Court would remain in force until determined or revoked with the leave of the Court in writing signed by client or the pleader which revocation had to be filed in the Court.

(b) Counsel and client---

‑‑‑‑Counsel had the implied authority to effect a compromise, unless he had been specifically instructed to the contrary.

Dr. Ansar Hassan Rizvi v. Syed Mazahir Hussain Zaidi and 3 others 1971 SCMR 634; Messrs Azhar Asia Shipping Agency and another v. Ghaffar Corporation PLD 1996 SC 213 and Mst. Noor Jahan v. Azmat Hussain Farooqi and another 1992 SCMR 876 ref.

Sardar Muhammad Aslam Khan for Petitioner.

M.M. Pirzada for Respondents.

Date of hearing: 22nd October, 2001.

2002 M L D744

[Lahore]

Before Mrs. Nasira Iqbal, J

GHULAM JAFAR--- Petitioner

versus

SUPERINTENDENT, DISTRICT JAIL JHANG and 2 others---Respondents

Writ Petition No. 17489 of 2001, decided on 10th October, 2001.

Penal Code (XLV of.1860)---

----Ss.302(c) & 353---Constitution of Pakistan x(1973), Art.199--­-Constitutional petition---Release of accused on his having served out his sentence---Accused admittedly had undergone his sentence of 10 years' R.I. awarded to him under S.302(c), P.P.C., but he was being detained on account of non-payment of compensation of Rs.50,000 to the legal heirs of the deceased---Said compensation was directed to be paid by the accused by the Trial Court while convicting him under S.353, P.P.C., which conviction was set aside by High Court in appeal and instead he was convicted under S.302(c), P.P.C., and sentenced 'to undergo 10 years' R.I., which the accused had now served out---Sentence of compensation of Rs.50,000 payable to the legal heirs of the deceased--- P.P.C., was no longer holding the field---Superintendent Jail concerned was consequently directed to release the accused if he was not required in any other criminal case---Constitutional petition was accepted accordingly.

M.A. Zafar for Petitioner.

Zahid Farani Sheikh, A.A.-G.

2002 M L D 749

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeem Ullah Khan SHerwani, JJ

BASHIR AHMAD‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.21‑J and Criminal Revision No. 310 of 1999, heard on 27th February, 2001.

(a) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Event having happened in the house of the deceased, presence of wife and brother of the deceased at the relevant time could not be doubted by any stretch of imagination‑‑­Presence of wife of the deceased by ail means was material and his brother had furnished explanation with regard to his presence at the spot‑‑‑Testimony of wife and brother of the deceased as prosecution witnesses though had not been accepted qua the acquitted accused, but there was nothing to disbelieve the same as against the accused‑‑­Testimony of said witnesses as regards the accused was accepted‑‑­Conflicting motives had been brought forward by the complainant, but the fact remained that there was some dispute between the two sides which resulted into the occurrence‑‑‑Conclusions arrived at by the Investigating Officers with regard to innocence of the accused and his alibi on basis of the evidence of defence witnesses were not backed by sound material or reasons‑‑‑Said conclusions were rightly disbelieved by the Trial Court especially when plea of alibi which could easily be fabricated, was meritless and not worthy of credence‑‑‑No previous enmity existed between the parties and it was a case of single shot‑‑­Accused had also succeeded in casting some doubt on the version of the prosecution‑‑‑Death sentence awarded to the accused was converted into imprisonment for life, in circumstances, and amount of compensation was also reduced.

Muhammad Arshad and 2 others v. The State PLD 1996 SC 122 and Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Motive, proof of‑‑‑Motive was just a piece of evidence and not an element of crime‑‑‑Sometimes murder was proved, but, motive was not discovered or remained shrouded in mystery‑‑‑Not essential for the prosecution to prove motive behind killing in every case.

(c) Maxim‑‑‑

‑‑‑‑‑‑ Allegans contraria non est audiendus"‑‑‑Meaning and connotation‑‑­He who makes mutually contradictory and inconsistent statements is not to be listened to; his testimony deserves to be outrightly rejected.

Muhammad Anwar Khokhar for Appellant.

Abdul Rashid Monan for the State.

Date of hearing: 27th December, 2001.

2002 M L D 759

[Lahore]

Before Ch. Ijaz Ahmad, J

Mrs. ARSHAD REHMAN‑‑‑Petitioner

versus

LAHORE DEVELOPMENT AUTHORITY through Director‑General‑‑‑Respondent

Writ Petition No.4970.of 1995, decided on 21st September, 2001.

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

‑‑‑‑Art.'199‑‑‑Constitutional petition‑‑‑Vested right‑‑‑Order passed by Chief Minister‑‑‑Where Competent Authority had not issued any formal allotment letter of,any plot of land to the petitioner, no vested right lead accrued in favour of the petitioner on the basis of order of the Chief Minister.

Naib Ahmad and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others PLD 1969 SC 599 and Nazir Ahmad alias Jeera Guddi v. The State 1970 SCMR 7 ref.

(b) Lahore Development Authority Act (XXX of 1975)‑‑‑

‑‑‑‑Preamble‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutiorlal petition‑‑‑Vested right‑‑‑Allotment of plot of land‑‑‑Chief Minister ordered the Authorities to allot a plot of land to the petitioner from discretionary quota but the same was not allotted on the ground that the summary for the allotment was not approved by the Chief Minister,‑­Effect‑‑‑Where the order of the Chief Minister was not in terms of the provisions of Lahore Development Authority Act, 1975, and rules and regulations framed thereunder, no valid right accrued to the petition‑‑­Order passed by the Chief Minister was not sustainable‑‑‑High Court dismissed the Constitutional petition directing respondent to return the amount to the petitioner within specified time.

Mukhtar Ahmad and `37 others v. Government of West Pakistan through Secretary, Food and Agriculture, Civil Secretariat, Lahore and another PLD 1971 SC 846 and Zahid Hussain's case PLD.1992 SC 530 ref.

Irshad Chaudhry for Petitioner.

Mian Muzaffar Hussain, Legal Advisor for Respondent

2002 M L D 778

[Lahore]

Before Mrs. Nasira Iqbal, J

Mst. AMBREEN SHAH‑‑‑Petitioner

versus

CHAIRMAN, UNION (ARBITRATION) COUNCIL/

ADMINISTRATOR, UNION COMMITTEE and others‑‑‑Respondents

Writ Petition No. 1588 of 2001, decided on 11th June, 2001.

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

‑‑‑‑S. 5 & Sched.‑‑‑Muslim Family Laws Ordinance (VIII of 1961), Ss.7 & 8‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑‑Talaq in form of "Mubaraat"‑‑‑Withdrawal of notice of Talaq‑‑‑Chairman, Union. Council declined to issue certificate of Talaq to petitioner/lady on ground that since her husband/respondent had filed application for withdrawal of notice of Talaq within period of 90 days of receipt of notice, divorce had been rendered ineffective‑‑‑Document of Talaq had clearly shown that it was not a unilateral pronouncement of Talaq, but it was a Talaq inform of "Mubaraat" which had been entered into by consent of both parties‑‑­Document of pronouncement was a mutual revocation of contract of marriage entered into at time of Nikah and since both parties had mutually revoked contract, one party could not unilaterally revive the contract without consent of other ‑‑‑Talaq in form of "Mabaraat" was irrevocable from the date of its execution and provisions of S.7, Muslim Family Laws Ordinance, 1961 would be inapplicable to such a case‑‑‑If party to Talaq applied for a certificate from Chairman, regarding effectiveness of Talaq, he would have no option but to declare Talaq as effective‑‑‑Application for cancellation or revocation to Chairman and issuance of cancellation certificate was incompetent and was without lawful authority‑‑‑Once triple divorce had been pronounced, Talaq would become irrevocable.

Muhammad Nawaz v. Mst. Faiz Elahi PLD 1978 Lah. 328; Princess Aiysha Yasmeen Abbasi v. Maqbool Hussain Qureshi PLD 1979 Lah. 241; Muhammad Shahbaz Ahmad v. Sher Muhammad 1987 CLC 1496 and Abdul Rashid v. S.H.O., Police Station Sadar, Rehnala 1995 PCr.LJ 1247 ref.

Aleem Baig Chughtai for Petitioner.

Tafazzal H. Rizvi for Respondents.

Date of hearing: 11th June, 2001.

2002 M L D 784

[Lahore]

Before Muhammad Saeed Akhtar, J

Mst. NEELAM NOSHEEN and others‑‑‑Petitioners

versus

Raja MUHAMMAD KHAQAAN and others‑‑‑Respondents

Writ Petition: Nos. 776 and 10()1 to 1003 of 2000, decided on 18th May, 2001.

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

‑‑‑Ss. 5, Sched. & 14(2)(c) ‑‑‑ Suit for maintenance ‑‑‑Right of appeal‑‑‑Bar or abridgement of right of appeal as contained in S.14(2)(c) of West Pakistan Family Court Act, 1964, would apply to the judgment‑debtor and not to the decree‑holder as the Legislature had thought it fit, not to provide an appeal against a decree for a meagre amount‑‑‑If the Family Court had awarded maintenance allowance for Rs.500 p.m. or less the wife or the minor children were entitled to file an appeal before the higher Court‑‑‑interpretation of S.14(2)(c) of the Act to the effect that bar of right of appeal was also applicable to decree-holder (wife and minor ) would entail injustice, hardship and anomaly and such interpretation would defeat the purpose of the Act for which it was enacted.

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

----‑ Preamble & Ss.5. 14‑‑‑Family Courts Act, 1964 nature and purpose of‑‑‑Provisions of West Pakistan Family Courts Act, 1964 were of a beneficial nature which had enlarged the scope ' of jurisdiction of Family Courts and also vested the Court with power of giving substantial relief to wife and children with a right of appeal.

(c) Interpretation of statutes‑‑‑

‑‑‑‑ Construction of statute leading to absurdity has to be avoided, and that which is in accordance with reason and justice has to be adopted.

2001 SCMR 103 ref.

Mirza Farooq Anwar for Petitioner.

Ajmal Kamal Mirza for Respondent No. 1.

Date of hearing: 18th May, 2001.

2002 M T D 787

[Lahore]

Before Bashir A. Mujahid, J

NIGHAT PARVEEN and another‑‑‑Petitioners

versus

SENIOR SUPERINTENDENT OF POLICE, SARGODHA and 2 others‑‑‑Respondents

Writ Petition No. 9603 of 2001, heard on 24th October, 2001.

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

‑‑‑‑S. 11‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Both accused admitted their marriage before the Court and a child had also born in wedlock‑‑‑No useful purpose could be served by allowing to proceed with trial rather same would be misuse of law and process of Court ‑‑‑Challan had been submitted during pendency of Constitutional petition for quashing of F.I.R. which had shown clear mala fide on the part of prosecution‑‑­Constitutional petition for quashing of F.I.R. was allowed in interest of justice in circumstances.

Mansoor‑ul-Islam Khan Joyia for Petitioners.

Nasim Sabir Ch., Asstt. A.‑G. for Respondents Nos. 1 and 2.

Muhammad Sher Cheema for Respondent. No.3.

Date of hearing: 24th October, 2001.

2002 M L D 791

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD SHAM and others‑‑‑Petitioners

versus

CHAIRMAN, PAKISTAN TELECOMMUNICATION

CORPORATION LIMITED ISLAMABAD and others‑‑‑Respondents

Writ Petition No. 3378 of 2000/BWP, 412, 566, 532, 115, 872 of 2000, 2094, 1120, 1543, 1568, 2090, 2271, 2274 and 2272, 2273 of 1999, decided on 25th April, 2001.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Petitioners who were running Extra Department Public Call Offices had challenged notices issued by the Department with regard to conversion of public call office to pay card system‑‑‑Controversy involved had already been finally decided by the Supreme Court in other such‑like cases‑‑‑ Constitutional petitions were dismissed by the High Court with directions that Department would issue fresh notice to the petitioners giving two months' period to convert extra‑department public call officers into pay card phone system.

Mian Abdul Muqtadir for Petitioners.

Masood Gillani for Respondents.

2002 M L D 793

[Lahore]

Before Ijaz Ahmad Chaudhary, J

Mst. ATTIA BIBI and others‑‑‑Petitioners

versus

THE STATE and others‑‑‑Respondents

Writ Petition No. 18614 of 2001, decided on 6th November, 2001.

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

‑‑‑‑Ss. 10/16‑‑‑West Pakistan Family Courts Act (XXXV of 1964), S.5 &: Sched.‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑ ‑‑Quashing of proceedings‑‑‑Lady accused being sui juris had contracted marriage with co‑accused with her free­will and consent arid in said wedlock a daughter had been born‑‑­Family Court had already passed decree in favour of the accused lady in a suit filed for jactitation of marriage against another person who had claimed Nikah with her before her Nikah with the co‑accused‑‑­Judgment of Family Court though had been assailed before Appellate Court, but its operation had not been suspended ‑‑‑Pendency of criminal proceedings against the accused, thus, would be abuse of process of law‑‑‑Criminal proceedings pending against accused were quashed in circumstances.

Zafar Iqbal Chauhan for Petitioners.

Muhammad Jehangir Wahla, Asstt. A.‑G. for Respondents. .

2002 ML D 795

[Lahore]

Before Tanvir Bashir Ansari, J

Mst. AROOJ FATIMA ---Petitioner

versus

S.H.O., POLICE STATION, KOTWALI, BAHAWALPUR

CITY and another---Respondents

Writ Petition No.3668-Q of 2001/BWP, decided on 7th November, 2001.

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

----S. 11---Constitution of Pakistan (1973), Art.109 --- Constitutional petition---Quashing of F.I.R.---Complainant who was father of the petitioner had alleged in F.I:R: that petitioner had already contracted marriage with another person named M---Said other person had denied the factum of his marriage with the petitioner---Petitioner claimed that she had contracted marriage with her free-will under Islamic Law with person named A and in proof of said marriage she-had placed copy of duly registered Nikahnama on record---Father of the petitioner had himself admitted correctness of the Nikahnama---No offence having been made out and F.I.R. having been registered against petitioner with a mala fide intention, same was ordered to be quashed.

Ch. Abdul Ghaffar Bhutto for Petitioner.

M. Bashir, A.A.-G. for the State (on Court's call).

2002 M L D 797

[Lahore]

Before Mian Hamid Farooq, J

PROVINCE OF PUNJAB through Collector, Sargodha ‑‑‑ Petitioner

versus

MUHAMMAD ‑‑‑Respondent

Civil Revision No.615, of 1992, decided on 27th September, 2001.

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

‑‑‑‑Ss. 42 & 54‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 85 & 89‑‑‑Suit for declaration and permanent injunction‑‑‑Documentary evidence‑‑­Statement with regard to total outstanding amount against the plaintiff as arrears was prepared by "Wasal Baki Nawees" which was a public functionary working under the control of the defendant‑Government‑‑‑Said document which was produced by the defendant Government‑itself and was admitted in evidence, would be binding on defendant in suit filed against it‑‑‑Defendant after relying upon said document, could not wriggle out of the vigour of the same.

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

‑‑‑‑S.115‑‑‑Revisional jurisdiction, exercise of‑‑‑Concurrent findings on a question of fact or law recorded by the Court of competent jurisdiction, based on proper appreciation of evidence, oral or documentary, were not liable to be interfered with by the High Court in exercise of its revisional jurisdicti6n when no misreading, non‑reading of evidence or any legal infirmity or material irregularity was pointed out.

Muhammad Rafique v. Aamer Shahzad and others 1999 YLR 610; Abdul Rahim and another v. Mst. Janatay Bibi and others 2000 SCMR 346; Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431; Aziz Ullah Khan and others v. Gul Muhammad Khan 2000 SCMR 1647; Altaf Hussain v. Abdul Hameed and Abdul Majeed through Legal Heirs and another 2000 SCMR 314 and Haji Noor Muhammad v. 'Abdul Ghan'i and 2 others 2000 SCMR 329 ref.

Ch. Muhammad Bashir, A.A.‑G. for Petitioner.

Abdul Wahid Chaudhry for Respondent.

Date of hearing: 27th September, 2001.

2002 M L D 804

[Lahore]

Before Maulvi Anwar‑ul‑Haq and Mian Hamid Farooq, JJ

MUHAMMAD SHARIF‑‑‑Applicant

versus

Sh. BAHADUR ALI‑‑‑Respondent

Regular First Appeal No.205 of 1993 and Civil Miscellaneous Applications Nos. 1‑C and 2‑C of 2001, decided on 22nd October, 2001.

Per Mian Hamid Farooq, J.; Moulvi Anwarul Haq, J. agreeing‑‑‑

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.96. & O.XL1,, Rr. 1, 19‑‑‑Limitation Act (IX of 1908), S.5‑‑‑First appeal‑‑‑ Dismissal is default‑‑‑Re‑admission‑‑‑Delay, condonation of‑‑­Appeal earlier was dismissed for noon‑prosecution, but on application of appellant was re‑admitted to its original number and date was fixed for its hearing‑‑‑Appellant again remained absent on date fixed for hearing and appeal was again dismissed for non‑prosecution‑‑‑Appellant in his belated application for re‑admission of appeal had asserted that he could .not appear to prosecute the appeal as during that period his counsel died‑‑‑Validity‑‑‑High Court on previous occasion re‑admitted appeal mainly relying upon affidavit furnished by the counsel of appellant, but appellant at the next time of hearing repeated the same performance in absenting himself from proceedings‑‑‑Even if counsel of appellant had died,' sufficient time was at the disposal of appellant to institute application for re‑admission of appeal, but he filed the application after lapse of more than one year‑‑‑Conduct of appellant from the very beginning was thus proved to be contumacious‑‑‑No sufficient grounds were shown warranting condonation of delay within parameters of law in application for condonation of delay which otherwise was time‑barred and appellant had failed to explain each day's delay‑‑‑Appeal even otherwise had been rendered infructuous as sale‑deed in question ..Was executed during that period in favour of respondents by Executing Court, and physical possession was also delivered to the respondents.

Abdul Aziz v. Abdul Sattar 1979 SCMR 46 ref.

Waheed Anwar for Applicant.

Kh. Saeed‑uz‑Zafar for Respondent

Date of hearing: 22nd October, 2001

2002MLD 812

[Lahore]

Before Mansoor Ahmad, J

SAID MUHAMMAD ‑‑‑Appellant

versus

AMJAD IQBAL‑‑‑Respondent

Regular Second Appeal No. 16 of 1993, decided on 2nd October, 2001.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 12 & 21(a)(h)‑‑‑Suit for specific performance of contract‑‑­Agreement to sell suit land was executed between the parties‑‑­Defendant/vendor received earnest money and the remaining amount of consideration was required to be paid before the Sub‑Registrar at the time of execution of sale‑deed ‑‑‑Plaintiff/vendee who was willing to pay the balance amount of consideration remained present on the stipulated date in office of Sub=Registrar and also appeared before him, but defendant/vendor did not turn up‑‑‑Defendants denied execution of agreement to sell, but Trial Court decreed the suit‑‑‑Appellate Court set aside judgment and decree for specific performance of‑contract and the decree for specific performance of contract was 'substituted with a decree for recovery of amount invoking provisions, of S.21(a)(b) of Specific Relief Act, 1877‑‑‑Validity‑‑‑Agreement to sell having been found to be genuinely executed by defendant in favour of plaintiff after receiving earnest money, right acquired by plaintiff to seek enforcement of validly executed agreement to sell, could not be denied on the basis of rule contained under S.21(a)(h) of Specific Relief Act, 1877‑‑‑Discretion exercise by Appellate Court was fanciful and was not judicious‑‑‑Once a genuine and valid agreement to sell was established to have been executed by defendant/vendor he was under legal obligation to sell the suit land in favour of plaintiff/vendor‑‑‑Right acquired by vendee could not have been thwarted and there did not exist any mitigating circumstance to decline him the right to seek enforcement of agreement to sell‑‑‑Judgment and decree passed by Appellate Court were set aside and that of Trial Court were restored.

Mst. Rashida Begum and others v. Ghulam Farid PLD 1973 Lah. 637 ref.

Muhammad Zahid Abbasi for Appellant.

Ch. Muhammad Ibrahim for Respondent.

Date of hearing: 11th September, 2001.

2002 M L D 819

[Lahore]

Before Mian Hamid Farooq, J

Mst. SHAMIM AKHTAR and another‑‑‑Appellants

versus

HAQ NAWAZ and another‑‑‑Respondents

Regular Second Appeal No.73 of 1995, heard on 4th October, 2001.

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

---‑‑S.100 & O.VII, R.11‑‑‑Second appeal‑‑‑Dismissal of appeal on account of non‑affixation of court‑fee on memorandum of appeal‑‑­Appellate Court dismissed appeal on the ground that memorandum of appeal was filed without affixation of court‑fee of any amount‑‑‑Appeal was dismissed without affording opportunity to the appellants for making up deficiency of court‑fee despite the fact that an application seeking extension of time for paying court‑fee was filed by the appellants‑‑‑Said application was dismissed by the Appellate Court without assigning any reasons‑‑‑Validity‑‑‑Court, before dismissal of lis on account of non­payment of court‑fee was under legal obligation to provide an opportunity to person concerned to pay the court‑fee‑‑‑Appellants had been non‑suited on mere technicalities and .in circumstances had been condemned unheard in appeal wherein their valuable rights were involved‑‑‑Such type of non‑suiting a litigant on technical ground by invoking penal provision could not be countenanced‑‑‑Judgment of Appellate Court was even violative of provisions of O.VII, R.11, C.P.C. which provided that where plaint was written upon a paper insufficiently stamped and plaintiff on being required by Court to supply requisite stamp paper within time fixed by Court failed to do so in that case, Court was empowered to reject the plaint‑‑‑Said provisions were equally applicable to the Appellate Courts‑‑‑Order of Appellate Court passed in violation of law, thus, could not sustain‑‑‑Order dismissing appeal passed by Appellate Court was set aside in second appeal by the High Court.

(b) Administration of justice‑‑‑

‑‑‑‑ Lis should not be knocked out on technical grounds, but endeavours of Courts should be to decide matters, involving valuable rights of parties, on merits and parties to litigation should not be non‑suited on mere technical grounds.

Muhammad Nazir Janjua for Appellants.

Mian Jamil Akhtar and Rana Tahir Mehmood for Respondents.

Date of hearing: 4th October, 2001.

2002 M L D 829

[Lahore]

Before Malik Muhammad Qayyum, J

PAKISTAN WATER AND POWER DEVELOPMENT AUTHROITY‑‑‑Petitioner

Versus

KOT ADDU POWER CO. LIMITED and others‑‑‑Respondents

Civil Original No. 108 of 1998, decided on 12th April, 2000.

Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑S. 290‑‑‑Arbitration (Protocol and Convention) Act (VI of 1937), S.3‑‑‑Prayer for stay of proceedings pending under 5.290 of the Companies Ordinance, 1984 in view of existence of arbitration agreement between parties‑‑‑Provisions of 5.290 of the Companies Ordinance vested statutory jurisdiction in High Court to take certain measures described therein in order to resolve dispute inter se share­holders or Directors of Company‑ ‑‑Nature of the order, which High Court was competent to pass under S.290 would show that jurisdiction under said provisions had to be exercised by the Court itself, and by no one else, thus, petition under S.290 was not capable of being referred to arbitration‑‑‑ High Court dismissed 'the petition made under S.3 of Arbitration (Protocol and Convention) Act, 1937, holding that proceedings under S.290 of the Companies Ordinance were not liable to be stayed.

Surendra Kumar Dhawan and another _ v. R. Vir and others (1977) 47 Comp. Cas. 276; O.P. Gupta v. Shiv General Finance (P.) Ltd. and others (1977) 47 Comp. Cas 279 and Orix Leasing Pakistan Ltd. v. Colony Thal Textile Mills Ltd., PLD 1997 Lab. 443 ref.

Mirza Mahmood for Petitioner.

Abdul Hafeez Pirzada for Respondent No. 1.

Makhdoom Ali Khan for Respondent No.2.

Date of hearing: 4th February, 2000.

2002 M L D 859

[Lahore]

Before Khalil‑ur‑Rehman Ramday and Mian Saqib Nisar, JJ

Ch. TANVEER KHAN‑‑‑Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY

BUREAU and 2 others‑‑‑Respondents

Writ Petition No. 15969 of 2001, decided on 26th November, 2001.

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

‑‑‑‑S. 497‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), S.18‑‑‑Bail, grant of‑‑‑Accused had claimed bail on ground that he being a sick and infirm person was entitled to grant of bail‑‑‑Medical Board comprising of Medical Superintendent and other experts after examining accused had reported that accused did not suffer from any kind of infirmity or sickness which could justify accused's release on bail‑‑­Accused was not suffering from any such kind of decision which could not at all be treated in jail or which could lead to any serious consequence on account of confinement of accused in jail‑‑‑No case for grant of bail had been made out, in circumstances.

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

‑‑‑‑S.403‑‑‑Constitution of Pakistan (1973), Art. 13‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), S.18‑‑‑Double jeopardy‑‑‑Accused had alleged that he already stood tried and acquitted of offence which had been made basis of present reference on account of which he was being detained and such detention could not be sustained in law‑‑‑Charge‑sheet of earlier reference when compared with the present reference would show that both were different and properties involved in earlier reference were not subject‑matter of the present one‑‑‑Prima facie present reference/trial of accused was not hit by provisions of Art. 13 of Constitution of Pakistan (1973) and provisions of S.403, Cr.P.C.‑‑‑If offence emanated from different set of facts then the case was not one of double jeopardy.

Dr. Z. Babar Awan for Petitioner.

Ahmar Rilal Soofi, Deputy Prosecutor‑General for NAB, Babar Ali, Advocate/Special Prosecutor for NAB with Muhammad Gulshan Khan, I.O./Assn. Director, F.I.A.

Date of hearing: 26th November, 2001.

2002 M L D 877

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD SIDDIQ and 4 others‑‑‑Petitioner

versus

FATIMA BIBI and 2 others‑‑‑Respondents

Civil Revision No. 1025 of 1990, decided on 15th October, 2001.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit by co‑sharer for declaration and determination of his share in suit‑land without seeking relief of possession ‑‑‑ Maintainability ‑‑‑ Limitation‑‑‑Revisional jurisdiction, exercise of‑‑‑Suit was decreed and shares of plaintiffs in suit‑land were determined‑‑‑Appellate Court though could not find anything wrong with determination of shares in suit‑land, but dismissed suit holding that same was not maintainable without seeking relief of possession and that suit was barred by time‑‑‑Appellate Court could not explain as to how suit was barred by time‑‑‑Plaintiffs who were Muslims and co‑sharers in suit‑land were not bound to sue for possession as possession of one co‑sharer would enure for benefit of all co­owners‑‑‑Appellate Court having acted without lawful authority for non­suiting plaintiffs/petitioners its judgment and decree were set aside and that passed by Trial Court was restored by High Court in exercise of its revisional jurisdiction.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Anwar Muhammad and others v. Sharif Din and others 1983 SCMR 626 ref.

Shehbaz Khurshid Chaudhry for Petitioners.

Nemo for Respondents.

Date of hearing: 15th October, 2001.

2002 M L D 879

[Lahore

Before Syed Najam‑ul‑Hassan Kazmi and Mian Saqib Nisar, JJ

MUHAMMAD IBRAHIM and others‑‑‑Appellants

versus

MUHAMMAD ISMAIL and others‑‑‑Respondents

Regular First Appeals Nos. 189 and 228 of 1993, decided on 22nd December, 1999.

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

‑‑‑‑Ss. 96, 97 & O.XX, R.18‑‑‑Preliminary decree‑‑‑Validity‑‑‑Party aggrieved by preliminary decree and not satisfied by order disposing of certain objection could challenge decree in appeal for an authoritative pronouncement, but having failed to do so it would not be open for such party to criticize preliminary decree in appeal against final decree‑‑Corrections of preliminary decree could not be subjected to appeal against final decree‑‑‑Appeal could be either against preliminary decree or against final decree‑‑‑Claim in preliminary decree being barred by time, its legality could not be questioned on assumption of merging of preliminary decree into final decree.

Jamal Din v. Muhammad Yaqoob 1983 CLC 286 and Friend Engineering Corporation and others v. Government of the Punjab and 4 others 1991 SCMR 2324 ref.

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

‑‑‑‑Ss. 2(2), 96, 97 & O. VIII, R.10‑‑‑Closing of defence‑‑‑Order closing defence under O.VIII, R.10, C.P.C. passed by Trial Court was upheld by High Court‑‑‑Respondents/judgment‑debtors could not be permitted to reopen issues in appeal against preliminary decree, they could either challenge order or could await for final decision‑‑‑Defendants having opted to challenge order of closing right of filing written statement in High Court and remaining unsuccessful defendants could not again attack same at the time of appeal against final decree.

(c) Islamic Law‑‑‑

‑‑‑‑Succession‑‑‑Gift‑‑‑Accrual of right of succession‑; ‑Right of succession would accrue on opening of succession upon death of propositus‑‑‑Question of creating any clog in future and anticipatory inheritance right was not visualized by law‑‑‑When the gift was complete and alleged condition creating obstruction in inheritance being void, and unenforceable, was rightly ignored by Courts below.

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

‑‑‑‑O.XX, R.18‑‑‑Partition Act (IV of 1893), S.2‑‑‑Inheritance‑‑­Partition of inherited land‑‑‑Suit for‑‑‑Both parties filed objections against report of Local Commissioner, but Trial Court without deciding same proceeded to order auction of property‑‑‑Course adopted by Trial Court was untenable in law‑‑‑Court after considering objections, in light of evidence was expected to determine if property could be partitioned and if not whether same could be auctioned and also as to what were accounts‑‑‑Court had to grant relief in matter of recovery, settlement and adjustment of rent and income of joint property, but all those important aspects of the matter were not attended to by Trial Court which mechanically passed the final decree‑‑‑Final decree, in circumstances, suffered from legal infirmity and could not sustain‑‑‑Final judgment and decree was set aside and case was remanded to be decided afresh.

Ch. Muhammad Bakhsh for Appellant No. 1.

Riaz Ali Abbasi for Appellants Nos.2 .to 5

Sh. Khurshid Iqbal for Respondent No‑1.

Altaf‑ur‑Rehman for Respondent No.2

Dates of hearing: 11th, 22nd and 24th November, 1999

2002 M L D 886

[Lahore]

Before Ch. Ijaz Ahmad, J

SARFRAZ and others‑‑‑Petitioners

versus

SULTAN AHMAD and others‑‑‑Respondents

Writ Petition No. 3077 of 1983, decided on 15th November, 2000.

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

‑‑‑‑S.164‑‑‑Revisional jurisdiction of Board of Revenue ‑‑‑Scope‑‑­Member, Board of Revenue through its order had reversed orders of Tribunal below in revisional jurisdiction without adverting to reasoning of those Tribunals‑‑‑Member, Board of Revenue had authority only to reverse concurrent findings of facts of Tribunals below in case where they had passed' orders in violation of law laid down by superior Courts or orders were result of misreading or non‑reading of record.

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

‑‑‑‑S.164‑‑‑Revisional jurisdiction of Board of Revenue ‑‑‑Scope‑‑­Principle‑‑‑Member, Board of Revenue had authority to reverse concurrent finding of fact of Tribunals below only after satisfying itself upon three points that order of subordinate Tribunal was within its jurisdiction; that case was one in which Tribunal ought to have exercised jurisdiction; and that in exercise of jurisdiction the Tribunals below had acted illegally of in breach of some provisions of law of with material irregularity, or had committed some error of procedure in course of trial which was material and could affect ultimate decision.

(c) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Preamble‑‑‑Judicial concept of law was that provision of pre‑emption law must strictly be complied with to attract its rigour and even technicalities were also relevant to that law‑‑‑Person who wished to avail himself of a right under such law, was required to be vigilant and see that he complied with all conditions, imposed upon him.

(d) Punjab Ere‑on Act (I of 1913)‑‑‑

‑‑‑‑Ss. 21 & 25‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.164‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for pre‑emption ‑‑‑Failure of pre‑emptor to deposit decretal amount‑‑‑Application for extension of time‑‑-Suit having been decreed, pre‑emptor/decree‑holder who failed to deposit decretal amount within specified period filed application for extension of time, which was concurrently dismissed by Trial Court and Additional Commissioner, Revenue, but Board of Revenue accepted same in revision‑‑‑Application for extensi6n of time filed by pre‑emptors/decree‑holders, did not contain plausible reasons for extension of time‑‑‑Both Tribunals below, in circumstances, had rightly dismissed application for extension of time and order of Member, Board of Revenue reversing concurrent findings of Tribunal below passed in its revisional jurisdiction being not in accordance with law; was set aside by High Court in exercise of its Constitutional jurisdiction.

Shah Wali's case PLD 1966 SC 983; Haji Nawab Khan's case. 1976 SCMR 502; Manzoor Ahmad's case 1999‑MLD 135; Dulla's case PLD' 1994 Lah. 200 and Ghulam Rasool's case 1994 CLC 1311 ref.

M. Sarwar Rana for Petitioners.

Nemo for Respondents.

Date of hearing: 15th November, 2000.

2002 M L D 896

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD SIDDIQ through Legal Heirs and others‑‑‑Petitioners

versus

ABDUL KARIM through Legal Heirs and others‑‑‑Respondents

Civil Revision No. 1352‑D of 1989, heard on 6th November 2001.

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

‑‑‑‑S:42‑‑‑Transfer of Property Act (IV of 1882), Ss. 60 & 91‑‑‑Suit for declaration‑‑‑Redemption of mortgaged property‑‑‑Plaintiffs/respondents had sought declaration that suit land which was mortgaged by original owner to mortgagees was in their possession for a period over sixty years and land having not been redeemed, equity of pre‑emption had extinguished and that plaintiffs who were legal heirs of mortgagees had become owners of said land‑‑‑Defendants/petitioners resisted suit contending that plaintiffs were not, legal heirs of deceased mortgagees and that, predecessor‑in‑interest of defendants who was tenant under original owners/ mortgagors of land had purchased land from original owners‑‑‑Evidence on record had proved that mortgagees stood out of possession of suit land since 1956 and plaintiffs could not prove that defendants were put in possession of suit land by them when much earlier than that the alleged mortgagees had ceased to be in possession of suit land‑‑‑Plaintiffs in circumstances, could not prove that they were possessed of locus standi to file suit‑‑‑Suit was dismissed by Trial Court, but Appellate Court set aside judgment of Trial Court and decreed suit‑‑­Appellate Court having acted with material irregularity in exercise of its jurisdiction while passing judgment and .decree, High Court set aside its judgment and decree in exercise of its revisional jurisdiction.

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

‑‑‑‑S.42‑‑‑Transfer of Property Act (IV of 1882), Ss. 60 & 91‑‑­Limitation Act (IX of 1908), S.28 & Art. 148‑‑‑Suit for declaration‑‑­Redemption of mortgaged property ‑‑‑Expiry of limitation prescribed for redemption of mortgage would extinguish remedy and the right would be extinguished only if provisions of S.28 of Limitation Act, 1908 were to be applicable‑‑‑Provisions of S.28 of Limitation Act, 1908, being not applicable in the case, having been declared repugnant to Injunctions of Islam, no question arose for grant of any declaration to plaintiffs.

Main Iqbal.Hussain for Petitioners.

Muzaffar Iqbal Chaudhry for Respondents, Date of hearing: 6th November, 2001.

2002 M L D 901

[Lahore]

Before Mian Hamid Farooq, J

NISAR AHMAD and 2 others‑‑‑Appellants

versus

MADAN LAL and 6 others‑‑‑Respondents

Regular Second Appeal No. 15 of 1993, heard on 15th November, 2001.

(a) Punjab Pre‑emption Act (I of'1913)‑‑‑

‑‑‑‑Ss.15 & 21‑‑‑Suit for pre‑emption ‑‑‑Superior right bf pre‑emption‑‑­Suit filed by pre‑emptors on ground of collateralship and being co­sharers in joint Khata in suit land was concurrently decreed by Trial Court and Appellate Court ‑‑‑Appellants/vendees had challenged concurrent judgment and decree of Courts below contending that plaintiff was neither co‑sharer nor the agnates and had no superior right to pre­empt sale‑‑‑Such contention was neither taken by vendees before Trial Court in their written statement nor before Appellate Court and not even in memorandum of appeal before High Court in second appeal‑‑­Vendees/appellants, in circumstances, were precluded from raising any new plea at stage of second appeal, which was inconsistent with the one set by them before Courts below‑‑‑Vendees having failed to build up a case on basis of provisions of S.15(b) of Punjab Pre‑emption Act, 1913, and precluded from raising such plea at the stage of second appeal‑‑‑Concurrent findings of fact recorded by two Courts below were not liable to be interfered with by High Court in exercise of its appellate jurisdiction conferred on it under S.100, C.P.C.

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

‑‑‑‑S.100‑‑‑Second appeal‑‑‑Scope‑‑‑Second appeal lay only on ground mentioned in S.100, C.P.C. and not on question of fact‑‑‑Concurrent findings of facts of Courts below were not liable to be interfered with by the High Court in exercise of its appellate jurisdiction conferred on it under S.100, C.P.C.

(c) Pleadings------

----Parties are bound by their pleadings and cannot depart from the same specially at the appeal stage.

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

‑‑‑‑S.100‑‑‑Second appeal‑‑‑New plea inconsistent with the one set by the parties before the Courts below cannot be raised at the stage of second appeal.

Abdul Ghani v. Muhammad Akhtar 1988 SCMR 301; Muhammad Shafi and another v. Sher Ali 1970 SCMR 510 and Maran Bepari v. Madan Gopal and 4 others PLD 1969 SC 617 ref.

Malik Muhammad Hussain Awan for Appellants.

Rai Muhammad Zafar Bhatti for Respondent No. 1

Nemo for Respondents Nos.2 to 6.

Date of hearing: 15th November, 2001.

2002 M L D 907

[Lahore]

Before Muhammad Sair Ali, J

Lady Doctor ASIMA‑‑‑Petitioner

versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 2 others‑‑‑Respondents

Writ Petition No.3688 of 1995, heard on 21st November, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.II, R.2, O.XXXVII, Rr. 1 & 2 & O. VII, R.11‑‑‑Suit for' recover of amount on basis of pronote‑‑‑Rejection of plaint‑‑‑Subsequent to filing suit for recovery of amount, plaintiff filed two other suits, for recovery of rent as well as mortgaged money‑‑‑In earlier suit for recovery of amount defendant moved application under O.VII, R.11, C.P.C. contending that plaintiff was barred under O.II, R.2, C.P.C. to file subsequent two suits‑‑‑Said application was rejected by Trial Court and Appellate Court‑‑‑In earlier suit for recovery of amount defendant had sought rejection of plaint in subsequent two suits which course could not be adopted‑‑‑Defendant through application under O.VII, R.11, C.P.C. could have only sought rejection of plaint in suit for recovery of amount and rejection of plaint in other two suits could not have been sought by invoking provisions of O.VII, R.11, C.P.C. without filing any such application in other two suits.

Ch. Muhammad Zafar for Petitioner.

Tariq Javed Sindhu for Respondents.

Date of hearing: 21st November, 2001.

2002MLD916

[Lahore]

Before Tassaduq Hussain Jilani and Raja Muhammad Sabir, JJ

DILAWAR HUSSAIN ‑‑‑Appellant

versus

STATE‑‑‑Respondent

Intra‑Court Appeal No.30 in Writ Petition No.41945 of 1996, decided on 29th October, 2001.

Law Reforms Ordinance (XII of 1972)‑‑

‑‑‑‑S.3‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Intro‑Court appeal‑‑­ Single Judge of High Court while hearing Constitutional petition against appellant who was Station House Officer of Police Station had directed the Deputy Inspector‑General of Police to look into the conduct of the appellant and "to ensure that such persons were not to be posted as Station House Officers as they were insult not only to Country, Nation Community, but also to the Force they represent"‑‑‑Nothing was on record to indicate that as to what material found favour with the Single Judge to disbelieve the appellant and to pass such an order against him‑‑ Appellant was neither issued any show‑cause notice to explain his conduct nor to file written reply‑‑‑Observation and direction given by Single Judge to Deputy Inspector‑General being arbitrary, could not be sustained in law‑‑‑Order of Single Judge was set aside in Intro‑Court Appeal.

Nemo for Appellant.

M. Qasim Khan, Asstt. A.‑G. for the State.

Date of hearing: 29th October, 2001.

2002 M L D 923

[Lahore]

Before Mian Hamid Farooq, J

MUHAMMAD ALI ‑‑‑Appellant

versus

GHAFOOR AHMED and 3 others‑‑‑Respondents

Regular Second Appeal NoA1 of 1992, heard on 9th October, 2001.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 8 & 12‑‑‑Suit for possession through specific performance of agreement‑‑‑Second appeal‑‑‑Trial Court after recording evidence of parties decreed suit‑‑‑Appellate Court dismissed appeal against judgment of Trial Court‑‑‑Appellate Court while rendering its finding had not at all adverted to evidence produced by defendant/appellant both oral as well as documentary‑‑‑Appellate Court had discussed documents and oral evidence produced by plaintiffs/respondents but had failed to take into account evidence produced by defendant/appellant ‑ ‑Appellate Court did not discuss in its judgment even single document produced by defendant/appellant and had merely relied upon evidence. produced by respondents‑‑‑Appellate Court was under a legal obligation .to take into consideration evidence, both oral as well documentary, produced by respective parties and then to have rendered its findings‑‑‑Judgment and decree passed by Appellate Court were set aside in second appeal by High Court and case was remanded to First Appellate Court to decide afresh in accordance with law after hearing parties.

Ch. Arshad Mehmood for Appellant.

Nemo for Respondents.

Date of hearing: 9th October, 2001.

2002 M L D 938

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD HAYAT‑‑‑Petitioner

versus

FAIZ ALI and another‑‑‑Respondents

Civil Revision No.473‑D of 2001, decided on 22nd November, 2001.

Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss. 6 & 20‑‑‑Suit for pre‑emption ‑‑‑Trial Court decreed suit in respect of whole suit‑land, but Appellate Court decreed suit to the extent of one‑third share of plaintiff in suit‑land on proportionate payment of amount and dismissed suit to the extent of remaining 2/3rd share‑‑‑Plea of plaintiff that defendants/vendees were not co‑sharers in suit land, was not borne out from evidence on record as record had clearly indicated that they were co‑sharers in specified Khewat‑‑‑Contention of plaintiff that suit should have been decreed in equal shares, among plaintiffs and defendants/vendees, was repelled in view of the fact that land would be shared and distributed on per capita basis between vendees and pre­emptors in circumstances.

Feroze Khan and 3 others v. Ahmad Yar 1992 MLD 1570 and Amir Hussain v. Rahim Bakhsh and others ILR 1991 All. 466 ref.

Ms. Zahida Amin for Petitioner.

Date of hearing: 22nd November, 2001.

2002 M L D 941

[Lahore]

Before Mansoor Ahmad, J

Mst. SURAYYA BEGUM and 4 others‑‑‑Petitioners

versus

ABDUL HAQ and another‑‑‑Respondents

Civil Revision No.728 of 1991, decided on 16 November, 2001.

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

‑‑‑‑Ss. 42 & 54‑‑‑Civil Procedure Code (V of 1908), S.9‑‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss. 22 & 25‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), Preamble‑‑‑Suit for declaration and permanent injunction‑‑‑Repeal of Settlement Laws‑ ‑‑Jurisdiction of Civil Court‑‑‑Plaintiffs filed suit contending that they were the sole heirs and owners in possession of property left by their deceased grandfather and that defendants were not entitled to any inheritance as they were not their real sisters‑‑‑Suit was resisted by defendants on the ground that Civil Court lacked jurisdiction in view of express mandatory provisions of Ss. 22 & 25 of Displaced Persons (Land Settlement) Act, 1958‑‑‑Bar of jurisdiction of Civil Court was no more available after repeal of Settlement Laws through Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975‑‑‑Even otherwise Civil Court being a Court of plenary jurisdiction had necessary jurisdiction to entertain and try suit‑‑‑Controversy between parties did not relate to any question falling within ambit of Settlement Authority, but it was a suit for declaration and permanent injunction simpliciter whereby status of defendants as real sisters of plaintiffs was challenged and said controversy could only be determined by Civil Court‑‑­Contention that Civil Court lacked jurisdiction in the matter, was repelled by High Court in circumstances.

Umar Draz. Ali v. Khurshid Ali and others PLD 1960 Lah. 834 Muhammad Siddique and others v. Muhammad Sharif and others 1992 SCMR 2260; Syed Abdur Rashid v. Pakistan through Secretary, Ministry of Refugees and others PLD 1962 SC 42 and Mst. Jameela Khatoon and others v. Sattar Baig and others 1997 CLC 1691 ref.

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

‑‑‑‑Ss. 42 & 54‑‑‑Suit for declaration and permanent injunction‑‑‑Two Courts below after appraising, evidence on record had concurrently found that defendants/petitioners were real daughters of deceased landowners‑‑­Trial Court dismissed suit in which plaintiffs/respondents sought declaration that they were sole heirs and owners in possession of property left by landowner and that defendants who were not real daughters of deceased landowners were not entitled to any inheritance‑‑‑Appellate Court below though had found that the defendants were real daughters of deceased landowners' but question of inheritance was not properly looked into it‑‑‑Judgment and decree of Appellate Court decreeing plaintiffs/respondents' suit which had reflected material irregularity, were set aside in revision by High Court.

Muhammad Hanif Awan for Petitioner.

S.M. Masood for Respondents.

Date of hearing: 13th September, 2001

2002 M L D 949

[Lahore]

Before Bashir A. Mujahid, J

RAFIQUE AHMAD‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.781‑B of 1999/BWP, decided on 2nd September, 1999..

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10‑‑‑Bail, grant of ‑‑‑Co‑accused named in F.I.R. were declared innocent during investigation‑‑‑Alleged eye‑witness .who was father of complainant had exonerated accused from commission of offence‑‑­ Complainant/alleged victim, was a married lady and her medical report had not shown mark of violence on her body‑‑‑Accused was behind bar for the last about 7 months and conclusion of trial in near future was not in sight‑‑‑Case of accused being of further inquiry, accused was admitted to bail, in circumstances.

Syed Muhammad Anwar Jamil Shah for Petitioner.

Azam Javaid for the State

2002 M L D 951

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD IQBAL‑‑‑Petitioner

versus

COLLECTOR, SIALKOT and others‑‑‑Respondents

Writ Petition No.7442 of 2000, decided on 4th October, 2001.

Stamp Act (II of 1899)‑‑‑

‑‑‑‑S.54‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Refund of stamp duty‑‑‑Petitioner purchased certain stamp papers for purpose of execution of sale deed‑‑‑Sale deed having not been effected on account of some litigation, petitioner approached the Authorities for refund of stamp duty, but Authorities dismissed his application without providing opportunity of hearing to him‑‑‑Order passed by Authorities without hearing petitioner, was illegal and void‑‑­Authorities were directed, to hear petitioner and pass fresh order qua application for refund of stamp duty.

N.A. Butt for Petitioner.

Ch. Muhammad Ashraf, A.A.‑G. for Respondents.

Date of hearing: 4th October, 2001.

2002 M L D 953

[Lahore]

Before Syed Zahid Hussain, J

BASHIR AHMAD and 9 others‑‑‑Petitioners

versus

ASSISTANT COMMISSIONER/DEPUTY SETTLEMENT

COMMISSIONER, SHAKARGARH and 11 others‑‑‑Respondents

Writ Petition No. 197/R of 1994, heard on 16th October, 2001.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑

‑‑‑‑S.3‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Allotment of land‑‑‑Land in dispute was proposed to be allotted in favour of respondents and High Court had directed Notified Officer to verify certain facts before confirming allotment in favour of respondents without prejudice to right of third party if any‑‑‑Petitioners had claimed that land in dispute which was situated in Abadi Deh was in their possession since 1946 and was never proposed for allotment to predecessor‑in‑interest of respondents‑‑‑Petitioners had placed some material on record in support of their claim, but Notified Officer not only did not verify the said facts, but had passed adverse order without giving notice to petitioners and without applying his mind‑‑‑Notified Officer under directions of High Court was obliged and duty bound to verify facts, which he failed to do‑‑‑Allotment of land made in favour of respondents could not be regarded to have been made by Notified Officer in correct and true compliance of directions of High Court‑‑­Matter was remitted to Notified Officer to decide afresh in compliance of directions of High Court after hearing parties in accordance with law.

Malik Abdul Wahid for Petitioners.

Muhammad Hanif Khatana, Addl. A.‑G. for Respondent No. l

Nemo for Respondent No.7.

Tasawwar Hussain Qureshi for Respondents Nos.8 to 11..

Date of hearing: 16th October, 2001.

2002 M L D 956

[Lahore]

Before Abdul Shakoor Paracha, J

NUSRAT ALI SHAH‑‑‑Petitioner

versus

VERVAIZ AKHTAR‑‑‑Respondent

Civil Revision. No., 1447 of 1996, decided on 6th November, 2001.

(a) Tort-----

‑‑‑‑ Suit for damages for wrongful confinement‑‑‑Plaintiff was not borrower but loan was obtained by his father against mortgage of his property‑‑‑Arrest and detention of plaintiff by defendant who was Tehsildar, being without lawful authority, plaintiff was entitled for damages for his illegal arrest and detention-‑‑Plaintiff, who was a shopkeeper was at his shop at the time of his illegal arrest and his shop remained closed for about one month and in consequence of that plaintiff sustained loss‑‑‑Court taking into consideration the loss in business and mental torture sustained by plaintiff, determined amount payable to plaintiff and decreed the suit accordingly.

Abdul Rauf v. Abdul Razzak and others 1987 SCMR 1632; Haji Salman Ali and Co. v. Province of Balochistan through Secretary, Irrigation and Power Department PLD 1994 Quetta 13; Chief Officer, District Council, Sheikhupura v. Haji Sultan Safdar 1999 YLR 1963; Ashrafi (Pvt.) Ltd. v. Abdul Majeed Bawani through Legal Heirs 1991 MLD 1101 and PLD 1979 SC 890 ref.

(b) Words and phrases‑‑‑

......Mental shock", meaning and connotation‑‑‑" Mental shock" means a shock to the moral and intellectual sense and "nervous shock" is a shock to nerve and brain structures of body.

Mian Nasir Mehmood for Petitioner.

Hassan Ahmad Khan Kanwar for Respondent.

Date of hearing: 26th October, 2001.

2002 M L D 965

[Lahore]

Before Mansoor Ahmad, J

NAWAB alias BABU through Legal Heirs---Appellant

Versus

MUHAMMAD RAFIQUE through Legal Heirs---Respondent

Regular Second Appeal No. 173 of 1979, heard on 12th October, 2001.

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

----S.12---Suit for specific performance of agreement---Plaintiff had claimed that defendant according to agreement of sale had agreed to sell residential house to him for consideration of Rs.4,000 and that he had paid some amount as advance and remaining consideration was to be paid at the time of execution of sale-deed---Suit was resisted by defendant alleging that agreement to sell was a fabricated one and that he had never executed that agreement---Document alleged to be an agreement, from tenor of .its contents was a receipt showing amount allegedly paid in advance and it also contained covenents for sale of house---Document was written in different inks and thumb-impression of executant thereof and signatures of marginal witnesses were also in different inks---Two lines in document appeared to have been added therein---Probability of deception, .could not be ruled out---Plaintiff produced two marginal witnesses to prove agreement, but as document itself was not above suspension, it could not be given effect to---Relief of specific performance being an equitable relief, plaintiff was not found entitled to residential house for a sutra of Rs.4,000 only---Conclusion and inference drawn by Appellate Court were unwarranted and were based on conjectures---Judgment of Appellate Court being bad in law, was set aside in second appeal by High Court.

(b) Administration of justice---

----Appreciation of evidence---Appreciation of evidence in civil cases was to be based on rule of preponderance of evidence.

Mst. Rehmat Bibi v. Fazal Muhammad and others 1987 SCMR 843 and Mst. Sarwari Begum. v. Jabbar alias Lalia PLD 1965 Lah. 32 ref.

Irfan Masood Sheikh for Appellants.

Ch. Zafar Iqbal for Respondents.

Date of hearing: 12th October, 2001

2002 M L D 967

[Lahore]

Before Karamat Nazir Bhandari, J

GHULAM RASOOL and 6 others---Petitioners

versus

SHARIF AHMAD and 3 others---Respondents

Civil Revisions Nos.1158-D and 1159-D of 1992, decided on 5th October, 2001.

(a) Punjab Pre-emption Act (1 of 1913)---

----Ss. 4, 15 & 21---Civil Procedure Code (V of 1908), O.VI, R.17--­Suit for pre-emption ---Amendment of plaint---Plaintiffs filed application for amendment of plaint so as to include assertion of being owners in Patti and Khata---Plaintiffs, during course of hearing, did not, state anything in support of the application---Amendment otherwise could not be allowed as period of filing suit had expired about two decades ago--­Even otherwise a pre-emptor could not add to his qualifications by amending plaint beyond period of limitation---Application for amendment of the plaint was rejected.

(b) Punjab Pre-emption Act (I of 1913)---

----Ss. 4, 15, 17 & 21---Suit for pre-emption ---Superior right of pre­emption ---Doctrine of sinker---Two suits were filed against same vendees and in respect of same land---First pre-emptors never asserted their superior right of pre-emption on ground of being Pattidar and could not lead evidence to what they had not pleaded and Court could not have granted them decree on basis of plea not asserted in plaint---Assuming that said pre-emptors could be found Pattidar even though not so pleaded, they sunk for having associated a non-Pattidar with them--­Deletion of the non-Pattidars at argument stage could not save penalty--­Courts below, in circumstances, were not justified in holding that first pre-emptors were entitled to decree being Pattidars---First pre-emptor and rival pre-emptors both had been proved to be owners in estate---If both sets .of pre-emptors were equally placed, then in terms of S. 17(c) of Punjab Pre-emption Act, 1913, suit land had to be divided---Judgment and decree passed by Courts below were set aside and fresh decree was passed in favour of first pre-emptors and rival pre-emptors on payment of proportionate price of specified shares.

Lal Khan v. Ghulam Muhammad 1973 SCMR 252 ref.

Syed Zafar Ali Shah for Petitioner.

Ch. Aamar Rehman for Respondents Nos. 1 and 2

Nemo for Respondents Nos.3 and 4.

Date of hearing: 1st October, 2001.

2002 M L D 971

[Lahore]

Before Mian Allah Nawaz, J

MUHAMMAD ASLAM and others---Petitioners

versus

MUHAMMAD TUFAIL and others---Respondents

Civil Revision No. 944-D of 1984, decided on 11th March, 1997.

Punjab Pre-emption Act (I of 1913)---

----Ss. 4, 15 & 21---Civil Procedure Code (V of 1908), S.115---Suit for pre-emption---Superior right of pre-emption, proof of---Plaintiff claimed superior right of pre-emption on ground that he was collateral of vendor of suit-land and that vendee was a stranger---Witness produced by plaintiff in proof of his claim neither belonged to the family of plaintiff nor he had shown any special means of knowledge with regard to genealogy of plaintiff and he even did not describe the pedigree of plaintiff---Appellate Court, in circumstances, was eminently correct in coming to the conclusion that plaintiff had failed to prove his superior right of pre-emption qua vendee---Finding of fact recorded by Appellate Court was fully justified and did not call for interference in revisional jurisdiction of High Court which was intended to cure jurisdictional or legal error.

Mst. Mangti v. Mst. Noori 1995 CLC 210 and Rabia Bibi v. Muhammad Malik 1997 MLD 67 ref.

Rana Muhammad Bashir and Altaf-ur-Rehman for Petitioners.

Mian Ejaz Hussain for Respondent

Date of hearing 11th March, 199?

2002 M L D 975

[Lahore]

Before Amir Alam Khan, J.

Mst. IQBAL BEGUM and others---Petitioners

versus

ADDITIONAL COMMISSIONER (GENERAL), and others---Respondents

Writ Petitions Nos.24269 and 305-R of 1987 and 1211 of 1997 and 26664 of 1997, decided on 15th December, 2001.

(a) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----Ss. 10/11---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), Ss. 2 & 3---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Allotment of land ---Mukhbari application---Compromise---Mukhbari application filed against allotment of land was accepted and allottees and subsequent purchasers of land filed Constitutional. petition against order of Authority which petition was dismissed by High Court---On filing appeal before Supreme Court compromise was arrived at between the parties and Supreme Court remanded case to Notified Officer to decide the case in the light of compromise between the parties---Allotments made in favour of allottees were restored and Mukhbars after receiving amount, withdrew their Constitutional petitions filed against allottees---Compromise whereby Mukhbars had agreed to withdraw all Constitutional petitions having been sanctified by Notified Officer, Constitutional petition could not be entertained for any hearing.

Mst. Iqbal Begum v. Assistant Commissioner and others PLD 1985 Lah. 342 ref.

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

----O.XXXIX, Rr.1 & 2---Stay order---Stay order would operate from the very day it was issued---Order passed subsequently during substance of stay order would be coram non judice.

(c) Evidence---

----Admission---Admission which was found to be made on point of fact of was made in ignorance of a legal right had no binding effect on person making the same.

(d) Administration of justice---

---Nobody could be allowed to play hot and cold in same breath.

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

----Art. 199---Civil Procedure Code (V of 1908), S.9---Constitutional jurisdiction, exercise of---Scope---Question of fact--Appropriate forum for determination---Complicated question of fact which could not be determined without recording evidence, appropriate forum for their determination would be Court of plenary jurisdiction and same could not be determined by High Court in exercise of its Constitutional jurisdiction.

Sh. Zia Ullah for Petitioners.

Muhammad Akbar Tartar, A.A.G. and Malik Abid Wahid for Respondents.

Date of hearing: 15th December, 2001

2002 M L D 988

[Lahore]

Before Muhammad Akhtar Shabbir, J

Mst. MANZOOR ELAHI---Petitioner

versus

MUHAMMAD NAWAZ and others---Respondents

Civil Revision No. 13-D of 1987/BWP, decided on 5th July, 2001.

(a) Islamic Law---

----Dower---Nature---Dower money is a debt payable to wife and wife was within her legal right to press for its payment---Dower is that financial gain which wife is entitled to receive from her husband by virtue of marriage contract itself whether named or not in the contract of marriage in which case proper dower would become due---Dower essentially is the right of wife and not of her parents.

Mst. Bakht-e-Rawida v. Ghulam Habib and 2 others PLD 1992 Kar. 46 and Muhammad Mumtaz v. Mst. Parveen Akhtar and another 1985 CLC 415 ref.

(b) Transfer of Property Act (IV of 1882)---

----Ss. 54 & 122---Transaction whether a sale or gift---Husband at the time of Nikah fixed amount of dower and instead of paying that amount had delivered property in favour of his wife---Such was a transaction of sale and not of a gift because neither direct gift of property had been made by husband to wife nor property was given in dower by him.

Haji Ghulam Hussain v. Mst. Amir Khatun PLD 1976 BJ 37 ref.

(c) Punjab Pre-emption Act (I of 1913)---

---Ss. 15 & 21---Transfer of Property Act (IV of 1882), Ss. 5,4 & 122---Registration Act (XVI of 1908), Ss.17 & 49---Suit for pre-emption--­Superior right of pre-emption ---Plaintiff claimed superior right of pre­emption bong owner in estate qua defendants/vendees---Plaintiff had contended that property transferred in her favour by her husband in lieu of dower was a gift and not sale which was not compulsorily registerable whereas claim of defendants/vendees was that mutation of property in favour of plaintiff was a mutation of sale and not gift---­Transfer of property made by husband of plaintiff through oral sale in violation of provision of S.54, Transfer of Property Act, 1882 would not confer any right or interest on plaintiff which could be made basis for claiming either ownership or co-sharership to claim superior right of pre­emption---Plaintiff, in circumstances, had no locus standi to file suit for pre-emption.

Muhammad Bakhsh v. Zia Ullah and others 1,983 SCMR 988 ref.

M. Shamsher Iqbal Chughtai for Petitioner.

Nemo for Respondents.

Date of hearing: 5th. July, 2001.

2002 M L D 993

[Lahore]

Before Syed Jamshed Ali, J

Mst. ZUBAIDA---Petitioner

versus

Mst. JANAT BIBI and others---Respondents

Civil Revision No.629 of 1994, decided on 18th October, 2001.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), ' Ss.117 to 119---Suit for declaration and permanent injunction---Gift---Burden to prove--­Claim of plaintiff was that house owned by her husband was orally gifted in her favour followed by a memorandum of gift---After death of husband of plaintiff house was transferred in favour of legal heirs of deceased vide mutation---Suit filed by plaintiff was concurrently dismissed by Courts below holding that plaintiff could not produce any evidence in support of oral gift made in her favour by her husband--­Plaintiff in proof of her claim had produced marginal witnesses of memorandum of gift who fully proved its execution---Both Courts below had not disbelieved said witnesses---By proving execution of memorandum of gift, plaintiff had discharged her initial burden and it was for defendants to establish that memorandum of gift was forged and anti-dated, but they could not establish same by any evidence---Appellate Court after holding that execution of memorandum of gift was duly proved, should not have looked for independent evidence of oral gift--­Judgments and decree of Courts below were set aside and suit was decreed by High Court.

Syed Mukhtar Abbas for Petitioner.

Ch Abdus Saleem for Respondents.

Date of hearing: 18th October, 2001.

2002 M L D 999

[Lahore]

Before Ali Nawaz Chowhan, J

MUHAMMAD SALEEM and others---Petitioners

versus

Mst. RAJ BI and others---Respondents

Civil Revision No.355-D of 1988, decided on 12th January, 2001.

Partition Act (IV of 1893)---

----S 4---Suit for partition of inherited property ---Gift---Plaintiffs why claimed to be legal heirs of deceased owner of house, filed suit for its partition---Defendants resisted suit contending that suit house had been gifted away to them by the owner before his death--Suit was decreed by Trial Court, but findings of Trial Court were reversed by Appellate Court holding that house was validly gifted away by deceased owner to defendants/respondents---Plaintiff could not prove that gift deed in favour of defendants was forged one whereas defendants by producing oral as well as documentary evidence on record had proved that house was validly gifted to them---Findings of Appellate Court regarding validity of gift based on evidence on record could not be interfered with in revision.

Tanvir Bashir Ansari for Petitioners.

Ajmal Kamal Mirza for' Respondents.

Date of hearing: 12th January, 2001.

2002 M L D 1002

[Lahore]

Before Muhammad Sair Ali, J

MUHAMMAD SHARIF---Petitioner

versus

Mst. SARDARAN BIBI and others---Respondents

Civil Revision No.841-D of 1992, heard on 4th October, 2001.

Specific Relief Act (I of 1877)----

----Ss. 39, 42 & 54---Qanun-e-Shahadat (10 of 1984), Arts. 17(2) & 79---Suit for declaration, permanent injunction and cancellation of agreement to sell---Claim of plaintiff/was that Iqrarnama regarding sale of plot in question was forged and fictitious---Trial Court dismissed suit, but on appeal Appellate Court set aside judgment of Trial Court and decreed the suit---Plaintiff who appeared as his own witness had failed to discharge onus of issue relating to falsehood of Iqrarnama which otherwise was duly proved through evidence of its marginal witness--­Evidence on record had fully proved that plaintiff had made general power of attorney in favour of brother of defendant/vendee on the same date when agreement (Iqrarnama) to sell plot in question was executed by her in favour of defendant/vendee and plaintiff had admitted that she had thumb-marked blank papers on advice of brother of vendee in whose favour general power of attorney was got registered by plaintiff--­Evidence of defendant/vendee and attesting witness was consistent, coherent, reasonable and confidence-inspiring---Said witnesses fully proved execution of valid agreement of sale, receipt of amount of consideration by plaintiff/vendor and handing over possession of plot to defendant---Appellate Court set aside judgment of Trial Court simply on ground that production of only one attesting witness was insufficient to prove Iqrarnama and that at least two attesting witnesses should have been produced---Agreement to sell was not required to be attested by witnesses under Art.79 of Qanun-e-Shahadat, 1984---Production of two marginal witnesses or scribe in circumstances, was not necessary--­Judgment and decree passed by Appellate Court being - not based on evidence on record and having been passed by misinterpreting law; were set aside in revision by High Court upholding judgment and decree of Trial Court.

Abdul Wali Khan. through Legal Heirs and others v. Muhammad Saleh 1998 SCMR 760 and Manzoor Hussain Khan Mst. Asia Begum and 21 others 1990 CLC 1014 ref.

Hassan Ahmad Khan Kanwar for Petitioner, Mian Atta-ur-Rehman and Ali Akbar Qureshi for Respondents.

Date of hearing. 4th October, 2001.

2002 M L D 1008

[Lahore]

Before Muhammad Farrukh Mahmud, J

SIBTAIN alias BHOLA‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2092‑B of 2001, decided on 10th October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss. 377/342‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12‑‑‑Bail, grant of‑‑‑Matter was reported to police after four months and eleven days without plausible explanation for the delay‑‑‑Medical examination of victim had belied all the allegations levelled in F.I.R.‑‑‑Allegations against accused needing further probe and inquiry, his case fell within ambit of S.497(2), Cr.P.C, entitling him for grant of bail.

Altaf Ibrahim Qureshi for Petitioner:

Raja Sultan Khuram for the State.

Date of hearing: 10th October, 2001.

2002 M L D 1010

[Lahore]

Before Tassaduq Hussain Jillani, J

AHMED YAR---Petitioner

versus

ABDUL RAZZAQ and 2 others---Respondents

Writ Petition No.5833 of 1995, heard on 27th September, 2001.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), S.148---Suit for specific performance of agreement---Failure to deposit remaining decretal amount---Suit was decreed with direction to plaintiff/decree-holder to deposit remaining decretal amount upto stipulated date and in case of his failure to deposit the said amount accordingly, suit would be presumed to be dismissed---Plaintiff, who failed to deposit amount according to the direction of the Court, applied for extension of time for deposit of amount after expiry of the date fixed for deposit of amount---Trial Court and Appellate Court concurrently dismissed the application of decree­holder---Validity---Judgment and decree itself having provided that in the event of non-deposit of amount suit would stand dismissed, same already stood dismissed before filing of application for extension of time and Court had become functus officio---Application for extension of time was rightly dismissed in circumstances.

Hamid Ali Khan v. Muhammad Anwar 2000 CLC 1633; AIR 1923 Oudh 16; AIR 1974 Bombay 104; 1992 MLD 31; PLD 1997 Lah. 177; PLD 2001 SC 489 and Muhammad Nawaz v. Muhammad Sadiq 1995 SCMR 105 ref.

Muhammad Younis Sheikh and Ch. Muhammad Siddique Safdar for Petitioner.

Rana Muhammad Khalid Ayyaz and Ch. Muhammad Anwar-ul-­Haq for Respondents.

Date of hearing: 27th September, 2001

2002 M L D 1014

[Lahore]

Before Raja Muhammad Sabir, J

FAKHAR ABBAS ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2322‑B of 2001, decided on 18th October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss. 324/394/459/34‑‑‑Bail, grant of‑‑‑Accused was not named in F.I.R., but was implicated on statement of co‑accused whose identity card was found at the place of occurrence‑‑‑Accused had not fired at the complainant‑‑­Worth of statement of co‑accused was to be evaluated during trial‑‑‑Case of accused being of further inquiry he was admitted to bail.

Altaf Ibrahim Qureshi for Petitioner.

Zulfiqar Ali Bhutta for the State.

Date of hearing: 18th October, 2001.

2002 M L D 1015

[Lahore]

Before Muhammad Farrukh Mahmud and Asif Seed Khan Khosa, JJ

NAZEER AHMAD alias NAJJA---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1123-B of 2001, decided on 6th June, 2001

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860). Ss 382 & 392/411---Bail, grant of---Accused had not been nominated in F.I.R. as one of perpetrators of offences in question---No test identification parade had been conducted in case so as to positively implicate accused in alleged offences---Order passed by Trial Court refusing bail to accused had shown that complainant had already sworn an affidavit exonerating accused--­Alleged recovery effected from accused during investigation only attracted provisions of S.411, P.P.C., which did not attract prohibitory clause contained in S.497(1), Cr.P.C.---Accused was admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Syed Shams-ud-Din for the State.

Date of hearing: 6th June, 2001.

2002 M L D 1025

[Lahore]

Before Asif Saeed Khan Khosa, J

ANWAAR‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.6424‑B of 2001, decided on 29th November, 2001 , Criminal Procedure Code (V of 1898)---

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), S.324/34‑‑‑Bail, grant of‑‑­F.I.R. was lodged with a. delay of one day and allegation levelled against accused in the F.I.R. was that of raising joint Lalkara with the co­accused‑‑‑Accused had not caused any, injury to any person during incident and last Investigating Officer had found the accused innocent‑‑­Whether accused shared a common intention with the co‑accused and whether accused was vicariously liable for offence allegedly committed by the co‑accused, were the ones which would be determined by Trial Court at time of trial‑‑‑Case against accused calling for further inquiry into his guilt, he was admitted to bail.

Nazar Abbas Syed for Petitioner

Saeed Ahmad Malik for the State.

2002 M L D 1026

[Lahore]

Before Zafar Pasha Chaudhry, J

Mst. SABBAN BIBI --- Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1883-B of 2000, decided on 6th September, 2000.

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

----S.497---Penal Code (XLV of 1860), Ss. 302/452/148/149---Bail, grant of---Bail was sought on ground that accused was a woman and only Lalkara was attributed to her---Question of vicarious liability of accused was to be determined after holding trial---Case against accused, in circumstances, was of further inquiry---Bail was opposed on ground that not mere proverbal Lalkara was attributed, but it was in fact an effective exhortation as a result of which occurrence had taken place--­As to what was real significance of exhortation, was a question which would be determined at time of trial---Case of accused was covered by 1st proviso to S.497, Cr.P.C.---Accused was in judicial lock-up for last two months and had no previous criminal history---Accused was. admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Sardar Muhammad Sarfraz for the Complainant.

Syed Altaf Khan for the State.

Date of hearing: 6th September, 2000.

2002 M L D 1027

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeemullah Khan Sherwani, JJ

SAMAR JAN WILLIAM and others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.218-J, of 2000 and Murder Reference No.518-T of 1999, decided on 28th November, 2001.

(a) Penal Code (XLV of 1860)---

----Ss. 302/201/365-A---High Court (Lahore Rules and Orders Vol. III, Chap. 13, Rr. ' 5 & 13---Appreciation of evidence---Confessional statements of accused recorded by Magistrate in accordance with High Court Rules and Orders and by giving half an hour time to accused to think over before making statements, proved to be voluntary and genuine---No previous background of enmity existed between the parties and it was not a case of false implication---Case though was of circumstantial evidence, but prosecution had fully proved the same through last seen evidence furnished by prosecution witness, recovery of ransom money from accused, immediate arrest of accused, recovery of scooter and other articles including wrist-watch belonging to deceased, recovery of chain with which deceased was strangulated and done to death and above all confessional statement of accused recorded by Magistrate under 5.164, Cr.P.C.---Prosecution having successfully proved that accused had abducted deceased for ransom and thereafter murdered him, conviction and sentence awarded to him by trial Court were maintained.

AIR 1946 Pat. 169; PLD 1962 Pesh. 91; PLD 1967 Kar. 233; PLD 1972 SC 363; AIR 1.988 SC 1965; 1998 PCr:LJ 854; 1998 SCMR 1718 and 1998 SCMR 2669 ref.

(b) Criminal trial---

----Evidence---Circumstantial evidence should be so interconnected that it forms such a continuous chain that its one end touches dead body and other neck of accused thereby excluding all hypothesis, of his innocence.

Sarfraz Khan v. The State 1996 SCMR 188 and Khalid laved v. The State 2001 PCr.LJ 1968 ref.

(c) Criminal trial---

----Every case has its own facts and has to be decided on its own facts and circumstances.

Raja Abdur Rehman Sarwar and Mehmood H. Mirza for Appellants.

Imran Sajjad Gul for the State.

Imran Aziz Qureshi for the Complainant.

Dates of hearing: 27th and 28th November, 2001

2002 M L D 1034

[Lahore]

Before Ijaz Ahmad Chaudhary, J

MUHAMMAD ANWAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.327 of 1999, decided on 29th October, 2001.

Penal Code (XLV of 1860)----

----S.302/34---Appreciation of evidence---Complainant who was father of deceased though had lodged F.I.R. after 9 hours of occurrence, but that delay was not sufficient to cause any doubt in prosecution case and could not be said that story had been concocted and fabricated because both eye-witnesses who were natural and truthful witnesses had supported the prosecution version---No contradictions on material points in statement of those eye-witnesses had been noticed and both were consistent in their statement that accused were armed with a gun of .12 bore and had fired on deceased---Witnesses had seen occurrence in light of electric bulb available at spot---Complainant had no direct enmity with accused to falsely implicate him in an offence punishable under capital charge--­Accused had failed to point out any reason for discarding statement of complainant who was father of deceased---Mere relationship of complainant with deceased, in circumstances was not sufficient to disbelieve statement of complainant which otherwise was confidence­ inspiring and worthy of reliance---Statement of eye-witnesses was fully corroborated by statement of complainant---Eye-witnesses had fully supported prosecution story---Prosecution having successfully proved the Trial Court had rightly convicted and sentenced accused.

Nazar Abbas Syed for Appellant.

Mirza Abdullah Baig assisted by Muhammad Iqbal Gondal for the State.

Ihsanullah Lila for the Complainant. y. Date of hearing: 12th September, 2001.

2002 M L D 1040

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD MANSHA and another---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1 of 2001 and Criminal Appeal No.513 of 2000; decided on 25th June, 2001.

Criminal Procedure Code (V of 1898)---

---S.426---Penal Code (XLV of 1860), Ss.337-L(2) & 149---Suspension of sentence pending appeal---Sentences of imprisonment passed against accused were relatively short and their right of appeal was likely to be frustrated in case they would undergo a substantial part of their sentences of imprisonment before their appeal could be heard by Court---Both accused had already spent about six months in jail after their conviction by Trial Court and about a year prior to their conviction---Sentences of imprisonment passed against accused by Trial Court were suspended and they were admitted to bail.

Altaf Ibrahim Qureshi for Petitioners.

Abdul Hameed Khokhar for the State.

Date of hearing: 25th June, 2001.

2002 M L D 1041

[Lahore]

Before Mian Hamid Farooq, J

GHULAM NABI and others-- -Petitioners

versus

MUHAMMAD HUSSAIN and others---Respondents

Writ Petitions Nos.8738 and 8740 of 1993, decided on 8th August, 2001.

Constitution of Pakistan (1973)---

----Art.199---Constitutional jurisdiction---Scope---Order rendered by Appellate Court which was neither void nor without jurisdiction could not be interfered with by High Court in exercise of its Constitutional jurisdiction ---Disputed questions of fact were involved in the case on which finding had been rendered by both the Courts below having exclusive jurisdiction in the matter by taking into consideration oral as well as documentary evidence---High Court in exercise of its Constitutional jurisdiction could not reappraise evidence on record which had properly been appreciated by Courts below.

Muhammad Sami Ullah Khan v. Additional District Judge and others PLD 2002 Lah. 56; Noor Muhammad v. Sarwar Khan and 2 others PLD .1985 SC 131; Muhammad Zahoor and another v. Lai Muhammad and 2 others 1999 SCMR 322; Muhammad Khan v. Ghulam Fatima 1991 SCMR 970 and Umar Hayat Khan v. Inayat Ullah Butt and others 1994 SCMR 572 ref.

Riyasat Ali Chaudhry for Petitioners.

Zahid Hussain Khan for Respondents.

2002 M L D 1045

[Lahore]

Before Ghulam Mahmood Qureshi, J

GHULAM MUHAMMAD ---Petitioner

versus

S. RIAZ HUSSAIN JAFFARI, ADDL. COMMISSIONER/CLAIMS COMMISSIONER, SARGODHA DIVISION, SARGODHA---Respondent

Writ Petition No.22-R of, 1985, decided on 10th November, 2000.

Registration of Claim (Displaced Persons) Act (III of 1956)---

----Ss. 2-A & 5---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Claim form was filed in respect of hotel under S.5 of Registration of Claims (Displaced Persons) Act, 1956---Validity--­Hotel allegedly owned by claimant was not located within the municipal limits of Poona City (India), thus, the same was not covered by definition of "property" as given in S.2-A of Registration of Claims (Displaced Persons) Act, 1956---Claimant even otherwise could not prove that he had three hotels in India with 21 rooms--­Claims Commissioner in view of contradictory statements of witnesses, dismissed the claim of the claimant---In absence of any illegality or infirmity order passed by Claims Commissioner could not be interfered with.

Zahid Hussain Khan for Petitioner.

Ch. Mushtaq Masood for Respondent.

Date of hearing: 10th November, 2000.

2002 M L D 1048

[Lahore]

Before Iftikhar Hussai Chaudhary

Mst. RUKHSANA and others---Petitioners

versus

D.S.P., CIRCLE SADIKABAD and others ---Respondents

Writ Petition No.4547 of 2001/BWP, decided on 13th September, 2001.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Petitioner, a female who left her house to contract marriage against wishes of her family had sought protection through Constitutional petition against legal action which could be taken against her by her family---Purpose of petition was two­fold; firstly to bring on record particular version of petitioner and secondly to prevent a likely or impending legal action to be taken against her or others---Petition did not contain proof of any harassment being caused to petitioner by police---Allegations in petition. were generalized in nature---Petitioner by means of an affidavit had submitted that she had not been abducted by anybody---High Court, in terms of the request made by petitioner issued order that in case local police wanted to initiate any action against petitioner, it should ensure that everything was done strictly in accordance with law and that petitioner was not subjected to harassment at the wishes of certain individuals.

Rasheed Afzaal for Petitioners.

2002 M L D 1059

[Lahore]

Before Syed Jamshed Ali, J

SALEHOON‑‑‑Petitioner

versus

SULTAN AHMAD‑‑‑Respondent

Civil Revision No.328 of 2001, decided on 13th February, 2001.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), S.115 ‑‑‑ Suit for declaration‑‑‑Plaintiff claimed that suit area was "Ghair Mumkin Chapper" and was under use of the residents of village‑‑‑Suit was decreed by Trial Court‑‑‑Defendant made statement before Appellate Court to the effect that he had nothing to do with suit‑land and that he was neither in possession thereof nor he had any intention to occupy the same‑‑‑Appeal against judgment of Trial Court was dismissed by Appellate Court on the basis of said statement of the defendant‑‑­Defendant having given up all his claim in respect of land in dispute, no case was made out for interference of High Court in revision.

Zahid Hussain Khan for Petitioner.

2002 M L D 1060

[Lahore]

Before Jawwad S Khawaja, J

TOWN COMMITTEE---Appellant

versus

ZAKRIO SONS and others---Respondents

Civil Revision No. 110 of 1986, decided on 27th September, 2000.

(a) Punjab Local Government Ordinance (VI of 1979)---

----S. 137---Basic Democracies Order (P.O. 18 of 1959), S.60-Civil Procedure Code (V of 1908), S.115---Levy of octroi --- Plea of respondent-company was that Town Committee by virtue of letter issued by Government under Basic Democracies Order, 1959 had no power to levy octroi on petrol, kerosene oil and motor spirit etc., mentioned in the octroi schedule and only Federal Government had power to levy such taxes as said items fell outside the purview of powers of a Provincial Government or any Local Government---Letter issued under Basic Democracies Order, 1959 could not be made a basis for holding that Town Committee was bound by the terms of the said letters as no direction of. Provincial Government was issued subsequent to promulgation of Punjab Local Government Ordinance, 1979 whereby Town Committee had been directed to exclude the said items from its Schedule.

(b) Punjab Local Government Ordinance (VI of 1979)---

----S. 137---Constitution of Pakistan (1973), Art.142(a) & Fourth Sched., Part I, Item 51---Levy of octroi on petrol, kerosene oil and motor spirit etc. by Town Committee---Validity---Petrol, kerosine oil and motor spirit not falling within description of mineral oil under Item 51 of Fourth Sched., Part I of Constitution of Pakistan (1973), levy of octroi by Town Committee on said items would not be violative of Constitution.

Sher Shah Industries Ltd. v. Government of Sindh and 4 others PLD 1982 Kar. 653 ref.

(c) Punjab Local Government Ordinance (VI of 1979)---

----S. 137---Constitution of Pakistan (1973), Art.142(a) & Fourth Sched., Part I, Item 51---Civil Procedure Code (V of 1908), S.115--­Levy of octroi---Courts below in matter of levying octroi on goods having not proceeded in accordance with relevant law, their concurrent judgments and decrees were set aside by High Court in exercise of its revisional jurisdiction.

Ch. Hameed-ud-Din with Zahid Hussain Khan for Petitioner.

Malik Allah Wasaya for Respondents.

Date of hearing: 27th September, 2000.

2002 M L D 1063

[Lahore]

Before Tanvir Ahmad Khan, J

Messrs ASHIQ HUSSAIN & SONS‑‑‑Petitioner

versus

CANTONMENT BOARD, SARGODHA and others‑‑‑Respondents

Writ Petition No.23078 of 1997, decided on 22nd October, 1997.

Contract Act (IX of 1872)‑‑‑

‑‑‑‑S.5‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑-Rejection of offer‑‑‑Petitioner was "A" Class Contractor and was holding licence from Engineering Council, but his offer for construction work despite being lowest was rejected and instead higher offer of the opposing contractor was accepted‑‑‑Petitioner was not only willing to perform contract at lowest rates, but also undertook to deposit ten per cent. of actual amount of contract as security to show bona fides‑‑‑Petitioner had further undertaken that in case his work not found to be according to specification; his security could be confiscated, and other proper action could be taken against him‑‑‑Petitioner had unblemished record and the Authority could not point out any complaint against him‑‑‑High Court accepting Constitutional petition directed the. Authority to give contract to the petitioner accordingly.

Dr. M. Mohy‑ud‑Din Qazi for Petitioner.

Yawar Ali Khan, Deputy Attorney‑General and Altaf‑ur‑Rehman Khan for Respondent No. 1.

Muhammad Rashid Ahmad for Respondents Nos.3 to 5.

Date of hearing: 22nd October, 1997

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2002 M L D 1071

[Lahore]

Before Muhammad Farrukh Mahmud, J

Mst. QURRAT‑UL‑AIN alias SALMA‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2366‑B of 2001, decided on 22nd October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497, first proviso‑‑‑Penal Code (XLV of 1860), Ss.302/201/34‑‑­-Bail, grant of‑‑‑Accused was empty‑handed and only a proverbial Lalkara had been attributed to her‑‑‑‑Accused being woman her case was covered by proviso 1 to S. 497, Cr.P.C and allegation against her needed further probe and inquiry‑‑‑Bail was granted to the accused in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Khan Atta Ullah Khan Tareen for the State.

Date of hearing: 22nd October, 2001.

2002 M L D 1073

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD MUBARIK ALI ---Petitioner

versus

MUHAMMAD ABDULLAH---Respondent

Civil Revision No. 1706 of 1988, decided on 7th November, 2000.

(a) Punjab Pre-emption Act (I of 1913)---

----Ss. 15, 21 & 30---Civil Procedure Code (V of 1908), S.115---Suit for -pre-emption ---Limitation---Both Trial Court as well as Appellate Court had concurrently found that plaintiff had proved his right of pre-emption in respect of suit-land---Trial Court decreed suit, but Appellate Court non-suited plaintiff on question of limitation holding that suit filed by plaintiff was barred by one day---Evidence on record had proved that suit was filed within one year from the date of registration of sale-deed in favour of vendees---Findings of Appellate Court not based upon proper reading of record and application of law, were set aside by High Court in its revisional jurisdiction and suit being well within time, judgment and decree passed by Trial Court were restored.

Bhirwan v. Ladha, and others 1996 MLD 1701 ref.

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

----Art.30---Admissions---Admissions made in a written statement had altogether a different legal significance than the admissions made generally.

Secretary to Government West Pakistan v. Kazi Abdul Kafil PLD 1978 SC 242 rel.

Syed Mukhtar Abbas for Petitioner.

Ch. Abdul Rehman Cheema for Respondent.

Date of hearing: 7th November, 2000.

2002 M L D 1077

[Lahore]

Before Muhammad Farrukh Mahmud, J

NIAZ alias NAZOO and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1234‑B of 2001, decided on 12th June, 2001.

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

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss. 302/148/109/34‑‑‑Bail, grant of‑‑‑Names of accused were neither mentioned in F.I.R. nor in any statement of prosecution witnesses‑‑‑Statement of one of eye‑witnesses was recorded after about one and a half months of occurrence wherein she had levelled a general allegation and had conceded that she did not see the occurrence herself‑‑‑No recovery had been effected from accused and accused were found to be innocent during investigation‑‑­Trial Court dismissed bail application of accused without mentioning any reason but only referred to the order which was passed in an anticipatory bail application moved by co‑accused‑‑‑Validity‑‑‑Trial Court had not applied mind to the rule that considerations for pre‑arrest bail and post­arrest bail were totally different‑‑‑Allegation levelled against accused needing further inquiry, their case fell within purview of S.497(2), Cr.P.C_ entitling them to grant of bail.

Altaf Ibrahim Qureshi for Petitioners.

Mian Abid Huss.in for the State.

Date of hearing: 12th May, 2001.

2002 M L D 1079

[Lahore]

Before Tassaduq Hussain Jillari and Raja Muhammad Sabir, JJ

SHAMSHAD HUSSAIN alias SHAMLA---Appellant

versus

THE STATE---Respondent

Criminal Appeals Nos.76 and 75 of 2000, heard on 18th September, 2001.

Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts. 3/4---Control of Narcotic Substances Act (XXV of 1997), S.9--­Criminal Procedure Code (V of 1898), S.397---Appreciation of evidence---Running of sentences concurrently---Accused did not challenge his conviction, but had requested that as trial vas conducted in both cases against him on same day, sentences awarded to him could be ordered to run concurrently---Accused was arrested on the same day in both cases registered against him one after another and he was tried by same Court and was convicted and sentenced on same day in two cases---High Court under S.397, Cr.P.C. was competent to order running of sentences concurrently though trials in both cases were separate---Maintaining conviction, sentences awarded to accused by Trial Court in both case were ordered to be run concurrently.

Niaz Ali v. State PLD 1961 (W.P.) Lahore 269; Altaf Hussain r, The State 1987 PCr.LJ 169 and Bashir and 3 others v. The State 1981 SCMR 1217 ref.

Altaf Ibrahim Qureshi for Appellant.

Muhammad Aslam Sumra for the State.

Date of hearing: 18th September, 2001

2002 M L D 1085

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ABBAS ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.7583‑B of 2001, decided on 8th January, 2002.

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

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑­Accused having not been attributed any injury to deceased or to any injured person, it was a case of further inquiry to the extent of finding whether accused had shared common intention with co‑accused or not‑‑­Accused had been shown as armed with fire‑arm, but he did not use the same which was sufficient to hold that accused prima facie did not share common intention and prima face had no intention to murder deceased and it would be seen after recording of evidence as to whether accused had participated in occurrence and had shared common intention to murder deceased alongwith his co‑accused‑‑‑Case of accused falling within purview of further inquiry, he was entitled to bail.

Imran Aziz Qureshi for Petitioner.

Nasir‑ud‑Din Khan Nayyar for the Complainant.

Najam‑ul‑Hassan Gill for the State.

2002 M L D 1091

[Lahore]

Before Riaz Kayani. J

ABDULLAH HUSSAIN alias ABDULLAH AS. LAM‑ ‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3114‑B of 2001, decided on 12th. June, 2001.

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

‑‑‑‑S. 491(2)‑‑‑Penal Code' (XLV of 1860), Ss. 302/324/34‑‑‑Bail, grant of‑‑‑Accused was alleged to have raised a Lalkara, but how far his role facilitated unknown person' to fire at deceased and to commit a murderous assault on injured, was yet to be determined by trial Court‑‑­Evidence of conspiracy was not mentioned in F.I.R. and there was a supplementary statement recorded on same day regarding alleged conspiracy‑‑‑Accused who was in judicial lock‑up, was no more required by police for investigation and there was no allegation with regard to tempering with record‑‑ Accused having been successful in making out a case of further inquiry and probe, was enlarged on bail.

Muhammad Sadiq and another v. The State 1996 SCMR 1654; Rafiq Khan v. The State 1995 SCMR 343 and Muhammad Latif v. The State 1989 PCr. LJ 1000 ref.

Iqbal Mahmood Awan for Petitioner

M.A. Malik for the Complainant.

Saleem Shad for the State

2002 M L D 1106

[Lahore]

Before Syed Jamshed Ali, J

Mst. SAWARAN and 4 others‑‑‑Petitioners

versus

Mst. GHULAM FATIMA and 2 others‑‑‑Respondents

Civil Revision No. 1138‑D of 1992; heard on 15th October, 2001.

(a) Adverse possession‑‑‑

‑‑‑‑‑Possession of a widow over a property after her marriage for more than twelve years would not ipso facto convert into adverse possession unless it was established that she had openly denounced title of rightful owner‑‑‑Mere possession for any length of time would not mature into title‑‑‑In absence of evidence on record not satisfying ingredients of adverse possession, findings of Courts that widow was in exclusive and uninterrupted possession, was not sustainable.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Dr. Mir Haider v. Muhammad Ali 14 PR 1911; Tarif and others v. Phool Singh and others AIR 1927 All. 274; Desa and others v. Dani and others AIR 1929 Lah. 327; Harisingh Hiralal Dangi v. Ramchandra Takhat Singh Dangi and another AIR 1957 Mahh, Pra. 238; Darmu Bharati and others v. Buli Dei and others AIR 1964 Orissa 25; F.A. Khan v. The Government of Pakistan PLD 1964. SC 520 and Mst. Karim Jan and 3 others v. Anwar Khan and another PLD 1984 Pesh. 111 ref.

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

‑‑‑‑S.115‑‑‑Revisional jurisdiction, exercise of‑‑‑Two Courts below had not carefully examined evidence produced in the case‑‑‑Courts only relied on oral evidence and did not at all consider documentary evidence which had material bearing‑‑‑Concurrent judgment and decree of two Courts below were set aside by High Court, in exercise of its revisional jurisdiction.

(c) Waiver‑‑

‑‑‑‑ Waiver was a conscious and deliberate relinquishment of one's right.

Ch. Khurshid Ahmad for Petitioners.

Nemo for Respondents.

Date of hearing: 15th October, 2001.

2002 M L D 1112

[Lahore]

Before Sheikh Abdur Razzaq, J

Makhdoom Syed NAU BAHAR SHAH‑‑‑Appellant

versus

CHIEF ADMINISTRATOR AUQAF and 28 others‑‑‑Respondents

First Appeal from Order No.9 of 1983, decided on 21st May, 2001.

West Pakistan Waqf Properties Ordinance (IV of 1979)‑‑‑

‑‑‑‑Ss. 2(e) & 11‑‑‑Acquisition of land by treating same as Waqf property‑‑‑Applicants, claimed that they were owners in possession of land and Authority had no right to acquire the same treating it as Waqf property‑‑‑Oral as well as documentary evidence brought on record by applicants had revealed that land in question had all along been property of applicants and they had been using the same according to their own sweet‑will‑‑‑Applicants had been leasing out land and being exclusive owners of the same had been ejecting tenants‑‑‑Auqaf department had laid much stress on the Muafi Nama to contend that since land in question had been exempted from land revenue same had attained its Waqf character‑‑‑Validity‑‑‑Mere assignment or Muafi of land revenue in favour of a Khankah, would not give rise to presumption that land itself was attached to a Khankah and gone out of pool of private ownership‑‑‑Nothing was on record in form of documentary evidence to the effect that property had ever been in possession of trust or was attached to any shrine except the Maufi Nama‑‑‑Evidence on record having conclusively proved that land in question was not Waqf property, but all along had been the property of applicants, same could not be acquired by Auqaf department.

Muhammad Khurshid and 4 others v. Chief Administrator Auqaf West Pakistan, Lahore PLD 1973 Note 38 at p.50 (Lahore); Chief Administrator Auqaf West Pakistan, Lahore v. Ilam Din PLD 1973 Lah. 675 and Chief Administrator of Auqaf, Sindh and another v. Ibrahim Shah (represented by 5 heirs) and 2 others PLD 1975 Kar 964 ref.

Ch. Naseer Ahmed for Appellant.

Muhammad Jaffar Hashmi for Respondents.

Date of hearing: 16th April, 2001.

2002 M L D 1117

[Lahore]

Before Muhammad Khalid Alvi, J

MANZOOR AHMED ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2439‑B of 2001, decided on 1st November, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 337‑F(i); 337‑F(v) & 452/34‑‑‑Bail, grant of‑‑‑Medico‑legal Report, prima facie, did not show as to the time when injuries were suffered by alleged victim‑‑‑Offences against accused were not punishable for 10 years or more and in such like cases grant of bail was a rule and refusal was an exception‑‑­Exceptional circumstances viz that injuries were given to a woman were though present in the case but since Medico‑legal Report had created some doubt, accused was admitted to bail.

Altaf Ibrahim Qureshi for Petitioner.

Jamil Ahmed Chohan for the State.

Date of hearing: 1st November, 2001.

2002 M L D 1118

[Lahore]

Before Tassaduq Hussain Jilani and Raja Muhammad Sabir, JJ

WATER & POWER DEVELOPMENT AUTHORITY, and others‑‑‑Appellants

versus

KHALID PERVAIZ‑‑‑‑Respondent

Intra‑Court Appeal No.215 of 1998 (in Writ Petition No.4363 of 1998), decided on 15th October, 2001.

Electricity Act (IX of 1910)‑‑‑

‑‑‑‑S.26(b)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Issuance of detection bill for theft of electricity‑‑‑Jurisdiction of Electric Inspector‑‑‑Order referring the case to Electric Inspector for decision of the case had been challenged by Authority contending that consumer was issued detection bill for theft of electricity and alleged methods used by consumer for stealing electricity not involving metering equipment, case should not have been referred to the Electric Inspector‑‑‑Report of Checking Committee/Team had shown that consumer had allegedly used instrument/wire which caused interference with metering equipment in consequence of which electricity consumed by consumer was not correctly reflected in the meter‑‑‑Case of consumer, in circumstances squarely fell within' ambit of S.26(b) of Electricity Act, 1910 and Electric Inspector, who had been given vast powers to look into issues in question, had jurisdiction to decide the case.

WAPDA v. Mian Muhammad Riaz PLD 1995 Lah. 56 ref.

Muhammad Amir Bhatti for Appellants.

Mehmood Ashraf Khan for Respondent.

Date of hearing: 15th October, 2001.

2002 M L D 1120

[Lahore]

Mian Muhammad Najam‑uz‑Zaman, J

AHMAD NAWAZ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 157‑R of 2002, decided on 14th January, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance, (VII of 1979), Ss.10/16‑‑‑Bail, grant of‑‑‑Complainant party had knowledge about illicit liaison of accused with alleged abductee and both of them were seen committing Zina about two months prior to the registration of case, but no report was lodged with police and even after her abduction F.I.R. was lodged after delay of eleven days‑‑‑Such delay in lodging F.I.R. itself was sufficient to bring case of accused within fold of further inquiry‑‑‑Accused, at one stage, during the investigation was found innocent and case against him was recommended for cancellation‑‑‑Alleged abductee made two statements, one before police under S.161, Cr.P.C. and other before Magistrate under S.164, Cr.P.C.‑‑‑Stories narrated in both statements were contradictory to each other‑‑‑Case of accused being of further inquiry he was admitted to bail.

Ch. Ahmad Saif Ullah Khatana for Petitioner.

Naseer Ahmad Baloch for the State.

2002 M L D 1122

[Lahore]

Before Muhammad Akhtar Shabbir, J

NOMAN HAFEEZ and others‑‑‑Petitioners

versus

MANAGER SMALL BUSINESS FINANCE CORPORATION, RAHIMYARKHAN through Manager‑‑‑Respondents

Criminal Original No.71 in Writ Petition No.716 of 2001/BWP, decided on 16th July, 2001.

Contempt of Court Act (LXIV of 1976)‑‑‑

‑‑‑‑Ss.3/4‑‑‑Petition for contempt of Court‑‑‑Respondents stated that they had not adopted coercive measures against petitioner; that petitioner having not approached them within stipulated period, therefore, statement of rendition of accounts could not be made with petitioner; that they had not violated orders of Court and even now they were ready to make rendition of account‑‑‑Effect‑‑‑Explanation by respondents was sufficient to satisfy the Court that order of Court had not been violated and there was no need in circumstances to proceed further against respondents under Ss.3/4 of Contempt of Court Act, 1976‑‑‑Petition being misconceived was dismissed.

Dr. M. Aslam Khaki v. Syed Muhammad Hashmi and 2 others PLD 2000 SC 225 ref.

Nemo for Petitioner.

Ch. Muhammad Ashraf Mohandra for Respondents.

2002 M L D 1125

[Lahore]

Before Asif Saeed Khan Khosa, J

GULZAR AHMAD and another---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No.2555-B of 2001, decided on 12th November, 2001.

Criminal Procedure Code (V of 1898)---

----S.497(1)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10(2)/11---Penal Code (XLV of 1860), S.380---Bail, grant of---Allegation against accused according to F.I.R. was that he had abducted the lady but during investigation it had been established that accused, after divorcing his previous wife, had contracted marriage with the alleged abductee three days prior to said abduction---Both accused and alleged abductee had consistently maintained that they had duly contracted marriage with each other---No stolen property was recovered from the possession of accused during investigation ---Challan had already been submitted and physical custody of accused was no longer required for purpose of investigation---Co-accused, being a woman, her case attracted provisions of first proviso to S.497(1), Cr.P.C.---Accused were admitted to bail.

Altaf Ibrahim Qureshi for Petitioners

Arshad Ali Chohan for the State.

Date of hearing: 12th November, 2001

2002 M L D 1126

[Lahore]

Before Naeem Ullah Khan Sherwani, J

MUHAMMAD ALI ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.502‑B of 2002, decided on 19th February, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

---S.497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑‑Name of accused did not figure in F. I. R. and he had been implicated in case on basis of a supplementary statement allegedly made by complainant who in his statement had introduced the accused and another as killers of deceased‑‑‑Subsequently complainant disowned his statement by appearing before Court‑‑‑Accused was behind bars for last eighteen months and trial had not yet commenced‑‑‑Accused was released on bail in circumstances.

Pervaiz Inayat Malik for Petitioner.

Waheed‑ud‑Din Virk for the State.

Date of hearing: 19th February, 2002.

2002 M L D 1128

[Lahore]

Before Mian Hamid Farooq, J

SABIHA ABDUL QAYYUM‑‑‑Petitioner

versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION and others‑‑‑Respondents

Writ Petition No.7290 of 1994, decided on 21st November, 2001

Educational institution‑‑‑

‑‑‑‑Examination‑‑‑Candidate who appeared in Intermediate examination failed only in one paper and was declared eligible to re‑appear in that paper in supplementary examination‑‑‑Candidate appeared in supplementary examination accordingly and was declared successful in the relevant paper‑‑‑Candidate was declared successful in the result card in the‑said paper but was shown absent in another whereas in earlier declaration of the result she was declared successful in that subject‑‑­According to rules contained in Calendar, Board of Intermediate and Secondary Education, result of candidate could not be quashed without issuing show‑cause notice to the candidate and giving candidate an opportunity of hearing, but in the present case neither opportunity of hearing was afforded to the candidate nor she was served with any show­cause notice and all proceedings against candidate were undertaken by Authorities at the back of the candidate‑‑‑Candidate in circumstances, was condemned unheard‑‑‑Action of‑ Authorities whereby candidate was directed to re‑appear in English Paper in which she had already. been declared successful, could not be countenanced by any stretch of imagination and was not tenable in law especially when principles of natural justice had been violated by the Authorities‑‑­Action of Authorities was declared to be without lawful authority and having no legal effect‑‑‑Matter would be deemed pending before Authority concerned for decision afresh in accordance with law.

Board of Intermediate and Secondary Education Sargodha v Shahid Latif 1990 SCMR 771 ref.

Muhammad Sharif Warsi for Petitioner

Shahid Waheed for Respondents.

Date of hearing: 21st November, 2001.

2002 M L D 1131

[Lahore]

Before Asif Saecd Khan Khosa, J

MUHAMMAD NADEEM‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.6294‑B of 2001, decided on 3rd December, 2001.

Criminal Procedure Code (V of 1898)‑‑­

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Sa, 452/354/337‑F(i)/337‑A(iii)/ 148/ 149‑‑‑Bail, grant of‑‑‑Occurrence had erupted all of a sudden without any premeditation on the part of parties‑-‑Case was of two versions wherein different persons belonging to both parties had sustained injuries‑‑‑All other persons belonging to both the parties except accused had already been admitted to bail‑‑‑Question as to which party was in fact aggressor, would be gone into by trial Court at time of trial on basis of evidence led before it‑‑‑Case against accused calling for further inquiry into his guilt within purview of 5.497(2), Cr.P.C., he was admitted to bail.

Nazar Abbas Syed for Petitioner.

Ch. Nazir Ahmad for the State.

2002 M L D 1138

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman, J

ASHIQ ALI ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.741‑B of 2002, decided on 14th February, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10/14/18‑‑‑Bail, grant of‑‑‑No evidence was on record to attract provisions of Ss. 10/14 of Offence of Zina (Enforcement of Hudood).Ordinance, 1979 qua the accused‑‑‑Prosecution's own story was that at the time of raid accused alongwith a woman was found in semi­naked condition‑‑‑Question as to how far ingredients of S.18 of Offence of Zina (Enforcement of Hudood), Ordinance, 1979 would be attracted in such circumstances, was yet to be looked into by Trial Court‑‑‑Case of accused prima facie fell within purview of S.497(2), Cr.P.C. calling for further inquiry‑‑‑Accused was granted bail, in circumstances.

Pervaiz Inayat Malik for Petitioner.

Sh. Mumtaz Ali for the State.

Date of hearing: 14th February, 2002.

2002 M L D 1140

[Lahore]

Before Sheikh Abdur Razzaq, J

RAJA SHAHID and others‑‑‑Petitioners

versus

SUPERINTENDENT, NEW CENTRAL JAIL, BAHAWALPUR and another‑‑‑Respondents

Writ Petition No.4775 of 2000/BWP, decided on 23rd January, 2001.

Penal Code (XLV of 1860)---

‑‑‑‑S.392/34‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Remission, grant of‑‑‑Accused claimed remission of sentence granted to convicts by Government vide notifications issued from time to time‑‑‑Notifications had excluded offences including dacoity defined in S.391, P.P.C. and punishable under S.395, P.P.C., but notifications did not exclude convicts of offence under 5.392, P.P.C.‑‑‑Accused having been convicted under S,392/34 P.P.C., their case squarely fell within purview of notification and they were entitled to grant of remission of sentence claimed by them.

Ch. Abdul Ghaffar Bhuttoa for Petitioners.

Nemo for Respondents.

Date of hearing: 23rd January, 2001

2002 M L D 1142

[Lahore]

Before Zafar Pasha Chaudhary, J

MUHAMMAD SIDDIQUE‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.4184/B of 2001, decided on 4th September. 2001.

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

‑‑‑‑S. 497(a)‑‑‑Penal Code (XLV of 1860), Ss.302/148/149‑‑‑Bail, grant ‑‑Accused, according to investigation was not responsible for commission of murder and four specific persons had been found to be the culprits‑‑‑Allegation that accused was vicariously liable for murder or that he had abetted the commission of offence in any manner, was a question which was open to further inquiry‑‑‑Accused was admitted to bail.

N.A. Butt for Petitioner.

M. Aslam Malik for the State.

2002 M L D 1143

[Lahore]

Before Shaikh Abdur Razzaq and Muhammad Akhtar Shabbir, JJ

NAZIR AHMAD---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 157-B of 2001/BWP, decided on 1st March, 2001.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302/109/34---Bail, grant of---Only evidence involving accused was of abetment ---Nothing was on record to show that accused was even present at the time of occurrence--­Accused was behind bars for more than two years and nothing had been recovered from him---Charge had been framed after about two years and matter was fixed for recording of evidence---Since no tangible evidence was against accused except that of statements of complainant as well as prosecution witnesses, benefit of relief of bail was extended to accused in circumstances.

Ghulam Haider v. The State 2000 PCr.LJ 440; Syed Amanullah Shah v. The State PLD 1996 SC 241 and Wajid Ali v. Mumtaz Ali Khan/State 2000 MLD 1172 ref.

Tariq Mahmood Khan for Petitioner.

SaleemNawaz Abbasi, A.A.G.

2002 M L D 1147

[Lahore]

Before Mrs. Nasira Iqbal, J

NAIK MUHAMMAD ‑‑‑Petitioner

versus

S.H.O. and others‑‑‑Respondents

Criminal Miscellaneous Nos. 1737‑H and No.6620‑B of 2001 decided on 30th November, 2001.

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

‑‑‑‑S.491‑‑‑Habeas corpus petition‑‑‑Petitioner had sought recovery of detenues contending that one of the detenues was married to him and other to his brother‑‑Father of detenues had produced in Court copies of F. I. R. registered by him against petitioner under S.11 of Offence of zina (Enforcement of Hudood) Ordinance, 1979‑‑‑Copies of order of Judicial Magistrate had also been produced in the Court regarding statements allegedly made by both detenues under S.164, Cr.P.C.‑‑‑High Court directed that the detenues be produced in the Court on specified date se that Court should satisfy itself that the alleged statement had been voluntarily made by the detenues and that they themselves had repudiated Nikah with petitioner and her brother, but despite direction detenues were not produced in the Court‑‑‑Respondents had taken shelter behind technicalities to avoid production of the detenues in the Court‑­Respondents were again directed by the High Court to produce detenues in the Court.

Hazaray Shah v. The State 1998 PCr.LJ 417 ref.

Dost Muhammad Kahoot for Petitioner

Ch. Ali Muhammad for Respondents

2002 M L D 1150

[Lahore]

Before Jawwad S. Khawja, J

MUHAMMAD AMEEN and others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.866‑B of 2000/BWP, decided on 31st August 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.324‑‑‑Bail, grant of ‑‑‑Question of guilt of accused for offence under S.324, P.P.C. being one of further inquiry, bail was granted to accused in circumstances.

Ch. Muhammad Ashraf Mohandra for Petitioners.

Raja Sohail Iftikhar for the Complainant.

Niaz Ahmad Shah for the State.

2002 M L D 1151

[Lahore]

Before M.A. Shahid Siddiqui, J

ALLAH BAKSH and others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.7565‑B of 2001, decided on 1st February, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 395/397/412/109‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979). S.17‑‑‑Bail, grant of‑‑‑No legal evidence was available to connect accused with alleged occurrence‑‑‑Accused had never been involved in any criminal case‑‑‑In absence of any reason to withhold concession of bail, accused was entitled to same in circumstances.

M. Aqeel Wahid Chaudhry for Petitioner.

Irfan Qadir for the State.

2002 M L D 1159

[Lahore]

Before Mian Nazir Akhtar, J

MUHAMMAD AJMAL and others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.6557‑B of 2001, decided on 6th December, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 458/380/395/397/412/109‑‑­Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10‑‑‑Bail, grant of‑‑‑Accused were not originally named in F.I.R.‑‑­Complainant party had been implicating different persons from time to time and later on had introduced a number of improvements in the ca e and came forward with version that co‑accused had committed offence with help of accused‑‑‑No incriminating recovery had been effected from the accused‑‑‑Only allegation against female accused was that at one stage she had prepared breads for accused‑‑‑Culpability of accused prima facie required further probe and inquiry‑‑‑No reasonable grounds existed for believing that accused had committed offence alleged against theta‑‑­Bail was allowed to accused in circumstances.

Nazar Abbas Syed for Petitioners.

Mian Muhammad Tariq for the State.

Shakir Ali Rizvi for the Complainant.

2002 M L D 1167

[Lahore]

Before Naeem Ullah Khan Sherwani, J

Syed IMDAD HUSSAIN KAZMI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.5272‑B of 2000, decided on 20th October, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑Drugs Act (XXXI of 1976), Ss.23/27/30(2)‑‑‑Bail, grant of‑‑­Offence alleged to have been committed by accused being not punishable with ten years or more, did not fall within prohibitory clause of S.497, Cr.P.C.‑‑‑Accused was behind bars for a sufficient long time and his further detention was not likely to serve any useful purpose .to the prosecution‑‑‑Trial had not commenced and it was likely to take a long time‑‑‑Accused could not be kept for indefinite period in jail on whim or caprice of prosecution‑‑‑No likelihood of accused's jumping bail in any manner existed‑‑‑Accused was admitted to bail in circumstances.

Zahid Hussain Khan for Petitioner.

Naseem Sabir Chaudhry, Additional Advocate‑General for the State

2002 M L D 1175

[Lahore]

Before Tanvir Bashir Ansari, J

Haji ANWAR ALI and others‑‑‑Petitioners

Versus

BASHIR AHMAD‑‑‑Respondent

Civil Revisions Nos.341‑D and 342‑D of 1990, heard on 8th January 2001.

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

‑‑‑‑O.VII, R.2‑‑‑Arbitration Act (X of 1940), S.21‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 33‑‑‑Suit for recovery of amount‑‑‑Appointment of referee‑‑‑Referee gathering information through other sources ‑‑‑Effect‑‑­Parties, during pendency of suit agreed to refer dispute to President of the co‑accused Association who had implicit nexus with the dispute‑‑­Such appointment was not in the nature of arbitration‑‑‑ If that referee in arriving at decision, affirmed or re‑affirmed his decision with assistance of one or more connected persons, it would not militate against his information as being based on extraneous evidence which should derogate from his status as a referee‑‑‑Referee, though had to decide according to his personal knowledge, but his act of acquiring further information would not vitiate his decision‑‑‑Nothing would be wrong if referee in order to supplement or augment his knowledge had chosen to affirm or re‑affirm same through other sources‑‑‑Inquiry which was supplementary to and in addition to his personal knowledge was not violative of provisions of Art. 33 of Qanun‑e‑Shahadat, 1984.

Mahabit v. Manohar Singh AIR 1924 All. 540; Waliullah v. Bhaggan AIR 1925 Oudh 269; Gudipoodi Subbayya and another v. Kotapalli Seshayya and others AIR 1928 Mad. 48(2); Sher Zaman Khan v. Noor Zaman Khan and another PLD 1977 Lah. 672; Naveed Aziz and another v. Rauf Ali Syed 1996 CLC 1932; Muhammad Ashraf v. Abdur Rehman 1993 CLC 1875; Muhammad Arif and others v. Farrukh Hafeez KLR 2000 Civil‑Cases 387; Messrs S.M. Qasim & Co. v. Messrs Sh. Azimuddin PLD 1962 (W.P.) Lah. 95; Municipal Committee, Fazilka v. Fazilka Electric Supply Co. Ltd. AIR 1947 Lah.309; A. B. Mitchell v. J.C. Dutt AIR 1928 Cal. 209 and Dwarkanath Roy and others v. Fanindra Nath Roy and others AIR 1919 Cal. 232 ref.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S.21‑‑‑Reference to arbitration‑‑‑Where parties were already before a Court, but decided to have their dispute referred to arbitration during pendency of those proceedings, it was incumbent upon them to change such course of resolution of their dispute through an application in writing‑‑‑Requirement of application as envisaged in S.21 of Arbitration Act, 1940, was mandatory‑‑‑In absence of such request, it could not be said that reference made to referee was reference to an arbitrator.

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

‑‑‑‑O. VII, R.2‑‑‑Arbitration Act (X of 1940), S.21‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.33‑‑‑Suit for recovery of amount‑‑‑Referring dispute to referee‑‑‑Parties had themselves opted for a particular mode of resolving their dispute by referring dispute to referee and nothing was illegal in such a course which they adopted‑‑‑Trial Court had only approved agreement of parties by referring matter to person named by both the parties who also had important nexus with dispute‑‑‑Nothing in exercise of jurisdiction by Trial Court existed which could be termed as irregular or infirm‑‑‑Decree of Trial Court based upon report of referee was unexceptionable‑‑‑Appellate Court also exercised its discretion in a fair and equitable manner‑‑‑In absence of any illegality or infirmity in concurrent judgments of Courts below, nothing would warrant interference in the same by the High Court.

Ijaz Ahmad Chaudhry for Petitioners. Nemo for Respondent.

Date of hearing: 8th January, 2001.

2002 M L D 1181

[Lahore]

Before Zafar Pasha Chaudhary, J

Mst. KAUSAR and another‑‑‑Petitioners

Versus

SUPERINTENDENT OF POLICE, BHAKKAR

and others‑‑‑Respondents

Writ Petition No.3325 of 2001, decided on 15th March, 2001.

Criminal Procedure Code (V of 1898) ‑‑‑

‑‑‑‑Ss.154 & 156‑‑‑Penal Code (XLV of 1860), S.182‑‑‑Registration and investigation of case‑‑‑No police officer was required to hold investigation before registration of case‑‑‑If any police officer received information disclosing commission of a cognizable offence he was under legal obligation to register case as per provisions of S.154, Cr.P.C.‑‑‑If a false F.I.R. was lodged, the informer could be proceeded against under S.182, P.P.C. which had made any false information to any police officer punishable.

Malik Abdus Sattar Chughtai for Petitioners.

M. Bilal Khan, Addl. A.‑G. with Abdul Qadir, A.S.I., Police Station Jandanwala, District Bhakkar with Record.

Aziz Ahmad Malik for Respondent No.3.

2002 M L D 1184

[Lahore]

Before Jawwad S. Khawaja, J

AHMAD NAWAZ and others‑‑‑Petitioners

Versus

Mst. SULTAN BIBI‑‑‑Respondent

Civil Revision No.533‑D of 1991, heard on 13th November, 2001.

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

‑‑‑‑S.53‑‑‑Zakat and Ushr Ordinance (XVIII of 1980), Ss.5 & 6‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Sect of deceased­‑‑Mutation of inheritance‑‑‑Suit for declaration ‑‑‑Goshwaras of Ushr produced on record had shown that deceased defendants were making payment of Ushr‑‑‑Said Goshwaras would raise justifiable inference that defendants did not claim to be exempt from provisions of Zakat and Ushr Ordinance‑‑‑Witnesses of defendants themselves had given evidence which had supported view that defendants were adherents to Sunni Fiqah‑‑‑Witnesses had also testified that Namaz‑e‑Jinaza of deceased defendants was led by a person who belonged to Ahl‑e­Sunnat‑‑‑Initial presumption in circumstances was always to the effect that deceased was an adherent of Sunni Fiqah, unless it was established by positive evidence that he followed some other Fiqah‑‑‑Sufficient evidence was on record to support case of plaintiffs that defendants followed Sunni Fiqah.

Sabir Hussain and others v. Afrasayyab and others 1989 CLC 1591 and Amir Ali v. Gul Shaker and 10 others PLD 1985 Kar. 365 ref.

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

‑‑‑‑S.115‑‑‑Revisional jurisdiction, exercise of‑‑‑Where two Courts below had differed, it was necessary for High Court to appraise evidence afresh while exercising revisional jurisdiction.

Khan Mir Daud Khan and others v. Mahrullah and others PLD 2001 SC 67 ref.

Malik Noor Muhammad Awan for Petitioners.

Irshad Ahmad Qureshi for Respondent.

Date of hearing: 13th November, 2001.

2002 M L D 1187

[Lahore]

Before Mian Muhammad Jehangir, J

BADDAL‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 2888‑B of 2001, decided on 6th December, 2001.

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

‑‑‑‑S. 497‑‑‑Surrender of Illicit Arms Act, (XXIV of 1991), Ss.4 & 7‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑‑‑Bail, grant of‑‑­Alleged kalashnikov was taken into possession through a memo. but it was not sealed nor it was mentioned that kalashnikov was to be sent to Expert for its determination as an arm‑‑‑So long such an article was declared to be an arm by Expert, it could not be argued that article in question was a fire‑arm or an illicit arm as defined in the West Pakistan Arms Ordinance, 1965 and Surrender of Illicit Arms Act, 1991‑‑‑Even at bail stage report of Expert was essential for examination and if report of Expert as documentary evidence was not produced at stage of trial it could be believed that prosecution was not in a position to prove its case‑‑‑Mere appearance of an article could not determine its nature to be an arm‑‑‑Provision of S.4 of Surrender of Illicit Arms Act, 1991 had provided that offence would be constituted where person in possession of any illicit arms would not surrender such arms till such time as was notified by Federal Government, but cases were being registered under said, provision of law without producing notification‑‑‑Accused was in jail, but orders passed by Courts below did not disclose recording of prosecution evidence after submission of challan‑‑‑Two private witnesses had deposed that their thumb‑impressions were obtained on a blank paper‑‑‑Case against accused being of further inquiry, he was admitted to bail.

Muhammad Irfan Wyne for Petitioner.

Tanveer Haider Buzdar for the State.

Date of hearing: 6th December, 2001.

2002 M L D 1191

[Lahore]

Before Raja Muhammad Sabir, J.

KHIZAR SULTAN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 2124‑B of 2001, decided on 27th September, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.324/336/149/34‑‑‑Bail, grant of‑‑‑Accused caused injury with butt of pistol to complainant on his left arm and that injury was simple in nature and was not on vital part of complainant ‑‑‑Co‑accused who caused injury to injured prosecution witness was in jail and had not applied for bail‑‑‑Allegation against accused that he fired at complainant which missed, needed further inquiry‑‑‑Use of butt of pistol by accused had shown that he had no intention to kill complainant or his companion‑‑‑Accused was behind bars for last more than three months, but trial had not commenced so far‑‑‑Accused was admitted to bail, in circumstances.

Mian Arshad Latif for Petitioner.

Syed Shamas‑ud‑Din for the State.

Date of hearing: 27th September, 2001.

2002 M L D 1193

[Lahore]

Before Zafar Pasha Chaudhary and Mian Muhammad Jehangir, JJ

Mst. ROBEENA and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.269 and Murder Reference No.531‑T of 1999, heard on 26th September, 2001.

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

‑‑‑‑S. 10(4)‑‑‑Zina‑bil‑Jabr‑‑‑ Appreciation of evidence ‑‑‑Sentence‑‑­Principles‑‑‑Section 10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is among rare provisions of Penal laws which had been made punishable with death alone‑‑‑Maximum penalty of death having been provided for the offence, prosecution case had to be scrutinized with utmost care and caution‑‑‑If any doubt or suspicion was noticed, same obviously would go to the benefit of accused‑‑‑No alternative sentence or punishment having been provided, choice was limited only either to sentence the offender to death or to acquit him‑‑‑Any exaggeration or misstatement on part of prosecution could result in sending accused to gallows‑‑‑To uphold and justify extreme sentence, proof and evidence should be unblemished‑‑‑Number of offenders was of utmost importance because if number of offenders was less than two the case would not come within ambit of S.10(4) of the Ordinance, but would be covered by S.10(3) of the same‑‑‑Character and credibility of prosecution witnesses should appear to be above board‑‑‑Any doubt or suspicion touching testimony of prosecution would be treated as fatal to prosecution.

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

‑‑‑‑Ss. 10(4)/11/16‑‑‑Appreciation of evidence ‑‑‑Zina‑bil‑Jabr‑‑‑ Nothing was on record to indicate that prosecution had any motive to falsely implicate accused, but credibility of prosecutrix's evidence should remain above board‑‑‑Medical evidence in the present case, did not provide any clue as to whether prosecutrix had been subjected to sexual intercourse by one person or more‑‑‑Number of offenders was of utmost importance in the case because if number of offenders was less than two then case would not come within ambit of S.10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979‑‑‑Material discrepancies appeared in statement of prosecutrix when compared with medical evidence which had created tangible doubt about veracity and truthfulness of evidence‑‑‑Medical examination of prosecutrix aged about fourteen years, had depicted that she was a girl of easy virtue ‑‑‑ Consent of minor though was no consent in eye of law, but evidence of a witness with shady character or of an accomplice, was generally considered as unworthy of credit‑‑‑Offence of gang rape, no doubt had been considered extremely heinous in any society in general and in Muslim Society in particular and was treated as most detestable and abominable crime and for that reason extreme penalty of death had been provided for the same, the aim of law‑makers, however, was to create deterrence and prevent offenders from committing such‑like crimes, but practically whenever heavy punishment especially sentence of death was provided and there was no alternate punishment either, number of acquittals were bound to increase‑‑‑Only testimony of prosecutrix in the case was contradicted on material aspects by medical evidence‑‑‑Prosecution having failed to prove guilt of accused, accused were acquitted of charges against them.

Hafiz Khalil Ahmad for Appellant No. 1.

Tahir Qureshi for the Remaining Appellants.

Ashfaq Ahmad Chaudhry for the State.

Date of hearing: 26th September, 2001.

2002 M L D 1200

[Lahore]

Before Khawaja Muhammad Sharif. J

Dr. MUHAMMAD ASHRAF‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.1957 of 2000, heard on 30th January, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Appreciation of evidence‑‑‑All the prosecution witnesses were close relative of deceased and despite occurrence had taken place at a busy place, no independent witness had been produced in the case by prosecution‑‑‑Accused was not connected with motive of the case and there was no reason for him to join hands with co‑accused‑‑‑No recovery was effected from accused and he did not fire on deceased or any other prosecution witness‑‑‑No crime empty of pistol was recovered from the spot and Investigating Officer had found the accused innocent‑‑‑Parties were inimical towards each other‑‑‑Possibility of false implication of accused in the case could not be ruled out‑‑‑Fatal injuries which were two in number were specifically attributed to co‑accused‑‑‑Prosecution having failed to prove case against accused and there being many dents and doubts in the prosecution case, appeal against judgment of Trial Court was accepted in circumstances.

Naveed Inayat Malik for Appellant.

Ch. Muhammad Nazir for the State.

Date of hearing: 30th January, 2002.

2002 M L D 1204

[Lahore]

Before Asif Saeed Khan Khosa, J

IRSHADUL HAQ‑‑‑Petitioner

Versus

S. H.O.‑‑‑Respondent

Writ Petition No.744 and Civil Miscellaneous No.1 of 2000/BWP, decided on 25th February, 2000.

Penal Code (XLV of 1860)‑‑‑-

‑‑‑‑S.379‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Quashing of F.I.R.‑‑‑F.I.R. in question was at its investigation stage and at that premature stage it was not possible for High Court to embark upon a factual inquiry so as to unearth true facts or to opine about credibility of otherwise of prosecution's allegations ‑‑Police had the statutory duty to investigate a crime reported to it and High Court would not be ready to stifle such duty‑‑ ‑Accused ought to satisfy Investigating Officer and not Court about falsity of allegations leveled in F.I.R.‑‑‑Accused had stated that he strongly suspected involvement of police in the matter which wanted to shift blame of disappearing of stolen material or to accused so as to avoid its own liability in that regard‑‑‑Accused had stated that he would be satisfied if petition be disposed of with appropriate direction to Senior Police Officer to ensure that investigation of case be conducted fairly, impartially and justly‑‑‑Court directed the Senior Superintendent of Police accordingly.

Malik Muhammad Aslam for Petitioner.

2002 M L D 1206

[Lahore]

Before Asif Saeed Khan Khosa, J

MUNIR ‑‑‑ Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.6052‑B of 2001, decided on 4th December, 2001.

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

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), S.395‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10/11‑‑‑Bail, grant of‑‑‑F. I. R. had been lodged with a delay of nine days and even in that belated F.I.R. accused had not been nominated as one of per­petrators of offences in question‑‑‑Accused had been implicated for the first time after about three years of occurrence on basis of some statements made by co‑accused‑‑‑Direct implication of accused became available in the case after about seven years of alleged occurrence through statement made by alieged abductee under S.164, Cr.P.C.‑‑‑Said statement of alleged abductee had shown that role of accused was secondary in nature‑‑‑Case against accused calling for further inquiry into his guilt within purview of S.497(2), Cr.P.C., he was admitted to bail.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.395 ‑‑‑ Offence of Zilia (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10/11‑‑­Commencement of trial‑‑‑Effect on grant of bail‑‑‑Stance of prosecution was that since trial had commenced, it would not be appropriate to release accused on bail‑‑‑Validity‑‑‑Bail had sometime been refused to accused on consideration of commencement of trial, but that consideration was based purely upon propriety‑‑‑Whenever a question of propriety is confronted with a question of right, question of right must prevail ‑‑Even otherwise commencement of trial would pose no un­-surmountable hurdle in way of bail where accused succeeded in making a case of further inquiry.

Muhammad Ismail v. Muhammad Rafiq and another PLD 1989

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

---‑S.497(2)‑‑‑Grant of bail‑‑‑Further inquiry‑‑‑In a case calling for further inquiry into guilt of accused, bail was to be granted to accused as of right and not by way of grace or concession.

Khalid Aseer Chaudhry for Petitioner.

Latif Sheikh for the State.

Date of hearing. 4th December, 2001.

2002 M L D 1219

[Lahore]

Before Sheikh Abdur Razzaq, J

FIDA HUSSAIN ‑‑‑Petitioner

Versus

THE STATE and 3 others‑‑‑Respondents

Writ Petition No. 3076 of 2001, decided on 19th June, 2001.

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

‑‑‑‑Ss. 81 & 82‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Recovery of detenu‑‑‑ Detenu/loanee was arrested and detained for ten days on allegation that he had become defaulter‑‑­After expiry of said period of ten days, period of detention was extended for another twenty‑eight days by the Assistant Commissioner who was not competent to grant the extension which could only be granted by the Collector as contemplated under S.82(3) of West Pakistan Land Revenue Act, 1967‑‑‑Detention of detenu/loanee was illegal having been made in violation of S.81 of the West Pakistan Land Revenue Act, 1967 which required that a notice of demand was to be served upon the defaulter and in view of S.82 of the Act, which provided that if after lapse of fifteen days of service of notice of demand under S.81, loanee failed to pay the arrears of land revenue due from him, the Revenue Officer could further issue a notice to him requiring him to pay amount and after lapse of thirty days of service of such notice if no amount was paid then Revenue Officer was entitled to issue a warrant of arrest‑‑‑Said provisions of law had not been complied with as both notices under Ss.81 & 82 of West Pakistan Land Revenue Act, 1967 had been served on the detenu on the same date ‑‑‑Detenu had pledged his land with the Bank at the time of securing loan, but no action had been initiated by the Bank for disposing of that property to recover the outstanding amount and instead the Bank had resorted to distress process against the detenu/toanee simply on the ground that he had failed to deposit the amount outstanding against him which practice could not be approved‑‑Detention of the detenu was declared to be illegal and he was ordered to be released forthwith.

Muhammad Yasin v. Agricultural Development Bank of Pakistan through Chairman and 3 others 1995 MLD 12 ref.

Sardar Hussain Amin Khan Lodhi for Petitioner.

Rana Parvez Ahmed for Respondents.

2002 M L D 1223

[Lahore]

Before Ijaz Ahmad Chaudhary, J

BASHIR AHMAD and others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.1 of 2000 in Criminal Appeal No. 1786 of 2001, decided on 3rd December, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S.426‑‑‑Suspension of sentence—Judgment of Trial Court showed that occurrence had not taken place in the manner alleged by prosecution in F.I.R.‑‑‑Trial Court had convicted accused on account of their presence at spot which according to accused was natural as they were residents of same house‑‑‑Prosecution story had been disbelieved by Trial Court as occurrence was result of "Ghairat" in which daughter and sister of both the accused had also been murdered‑‑‑Presence of deceased at 10‑00 p.m. in Baithak of accused with his daughter had belied the story narrated in F. I. R. ‑‑‑Accused having succeeded in making out case for suspension of sentence, they were admitted to bail.

Pervaiz Inayat Malik for Appellants.

Malik Shahid Pervaiz for the State.

Date of hearing: 3rd December, 2001.

2002 M L D 1232

[Lahore]

Before Zafar Pasha Chaudhary, J

BASHARAT‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.341/B of 2002, decided on 11th January, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss. 107/108‑‑‑Bail, grant of‑‑‑ Lalkara‑‑‑Allegation against accused was that he had raised Lalkara‑‑‑ Question whether LAlkara was in the nature of command or only a proverbial one was open to farther enquiry‑‑‑Accused had no motive whatsoever to commit crime but same squarely lay against co‑accused who was in custody‑‑‑Accused at worst, could be held for his vicarious liability which would be determined at trial‑‑‑Accused was admitted to bail in circumstances.

Ch. Ahmad Saif Ullah for Petitioner.

Kazim Iqbal for the State.

2002 M L D 1242

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman, J

ABDUL RASHID ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.4749‑B of 2002, decided on 20th September, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss. 451/457‑‑‑Bail, grant of‑‑­During investigation of case, S.457, P.P.C. had been deleted against accused and challan had been submitted before Trial Court under S.451, P.P.C. which was punishable with two years R.I. and offence there-under was bailable‑‑‑Case of accused requiring further inquiry and he was entitled to concession of bail.

Zahid Hussain Khan for Petitioner

2002 M L D 1263

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

Agha BAQAR HUSSAIN ‑‑‑‑Appellant

Versus

Agha ASGHAR HUSSAIN and another‑‑‑Respondents

Regular First Appeal No.261 of 1998, decided on 20th November, 2001.

Specific Relief Act (I of 1877)‑‑‑‑

‑‑‑‑S.8‑‑‑Contract Act (IX of 1872), S.202‑‑‑Suit for possession and mesne profits‑‑‑Plaintiff, in order to prove his entitlement in respect of suit property had brought on record sale‑deed through which he had purchased property‑‑‑Defendant was real brother of plaintiff and due to such close relationship was holding possession of property, but he had failed to prove legal basis of his possession over the property and had not shown any valid ground to resist suit‑‑‑Plaintiff being owner of suit property was entitled to seek its possession, particularly when in an earlier round of litigation under rent proceedings, defendant had denied relationship of tenancy and in second round of litigation in suit for declaration, plea of defendant about benami had been rejected‑‑‑If no tenancy existed between parties and defendant was also not owner of the suit property and had also. claimed no legal entitlement to hold its possession, he could not protect his possession on basis of power of attorney even if such power of attorney was not revoked because for purpose of claiming possession from an agent, it was not necessary to first revoke authority, when it was not shown that agent had any interest in subject‑matter of tenancy protected under provisions of S.202 of Contract Act, 1872‑‑‑Suit validly filed by plaintiff was rightly decreed by Trial Court ‑‑‑Mesne profits granted by Trial Court being not exorbitant could not be reduced.

Ghaffar Abbas Zaidi for Appellant.

Syed Abid Mumtaz Tirmazi for Respondents.

Date of hearing: 20th November, 2001.

2002 M L D 1268

[Lahore]

Before Mian Muhammad Jehangir, J

MUHAMMAD WAQAS‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous JNo.2653‑B of 2001, decided on 5th December, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 337‑A(ii)/337‑F(i)/337‑F(ii)34‑‑‑Bail, refusal of‑‑‑Medico‑legal Report had shown that out of the injuries sustained by injured, three injuries were caused by a sharp‑edged weapon ‑‑‑F.I.R. showed that injuries landed on vital parts of body of victim‑‑‑Accused along-with his companion had repeated dagger blows on vital parts of victim having knowledge that due to assault on vital part of body of victim with dangerous weapon, he could be guilty of Qatl‑e‑Amd, if death of injured person was caused‑‑‑Besides nature of injuries, selection of seat of injury also determined intention and knowledge of accused‑‑‑Weapon used in occurrence carried much importance to attract provisions of S.324, P.P.C.‑‑‑Even if police was not inclined to apply correct provisions of law, circumstances of case were sufficient to believe that an exception existed to refuse bail in the case‑‑‑Case being not fit for grant of bail, same was refused.

Muhammad Zafar alias Zafar Iqbal v. The State 2001 MLD 287 ref.

Syed Azhar Hassan Bukhari for Petitioner.

Tanveer Haider Buzdar for the State.

Date of hearing: 5th December, 2001.

2002‑M L D 1277

[Lahore]

Before Mian Muhammad Jehangir and M.A. Shahid Siddiqui, JJ

MUHAMMAD AKRAM and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 171 and Murder Reference No.420 of 2000, decided on 21st November, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/309/310/337‑A(ii)/337‑F(ii)/34‑‑‑Criminal Procedure Code (V of. 1898), S.345‑‑‑Appreciation of evidence‑‑‑Compounding of offence‑‑‑Offence was compounded by legal heirs of deceased and injured persons during the pendency of appeal without any duress or undue influence who waived their right of Qisas‑‑‑Natural guardians of minors who were fully competent to compound offences on behalf of minors, had compounded offences‑‑‑Compromise arrived at between legal heirs of deceased and injured persons having been found genuine, accused were acquitted of charges in view of provisions of S309, P.P.C. and S.345(2), Cr.P.C. and accused were leased accordingly.

Faiz Bakhsh Khan for Appellants.

Sardar Mehboob Ahmad for the Complainant

Shaukat Ali Kharal for the State.

Date of hearing: 21st November, 2001.

2002 M L D 1289

[Lahore]

Before Asif Saeed Khan Khosa, J, BASHARAT ALI ‑‑‑ Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Revision No.370 of 2001, heard on 1st November, 2001

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

‑‑‑‑S.514‑‑‑Forfeiture of bail bond‑‑‑Accused having absented himself from Court, bail bond of petitioner, who stood surety of accused, was forfeited and proceedings were initiated against him under S.514, Cr.P.C.‑‑‑Petitioner/surety during such proceedings had failed to appear before the. Court despite issuance of repeated notices to him and later on first bailable and then non‑bailable warrants of his arrest were issued by the Court and petitioner had never contested proceedings against him under S.514, Cr.P.C.‑‑‑Petitioner despite such proceedings had not appeared before the Court‑‑‑Effect‑‑‑Person who wilfully abstained from appearing before a Court of law, would forfeit his right of audience and no Court of law was obliged to afford him an opportunity of hearing until and unless he surrendered himself before Court‑‑‑Petitioner not only had failed to fulfil his obligation and commitment made before Court regarding production of accused before Court, but also had himself failed to appear before Court in proceedings against him under S.514, Cr.P.C.‑‑‑Stubborn obstinate and contumacious conduct of petitioner would disentitle him to an exercise of discretion in his favour‑‑‑Petitioner having himself volunteered to become a surety for accused in sum of Rs.1,00,000, could not urge that said amount of penalty was oppressive or excessive.

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

‑‑‑‑S.514‑‑‑Proceedings respecting forfeiture of bail bond‑‑‑Surety not only had failed to produce accused in Court, but also failed to appear in proceedings under 5.514, Cr.P.C. initiated against him despite issuance of repeated notices to him and later on issuance of bailable and non­-bailable warrants against him‑‑‑Such conduct of surety had apparently disentitled him to any exercise of discretion by Court in his favour‑‑­Provisions of 5.514, Cr.P.C. provided that a warrant of attachment could be issued only for movable property whereas in the present case Court had ordered attachment of "landed/immovable property of surety"­‑‑Such aspect of the matter, in the present case, could not deter Court from any further action because surety had himself volunteered that if a reasonable time was given to surety to deposit amount of bail bond in cash towards discharge of his liability, then he would not contest legal aspects of proceedings‑‑‑Surety was allowed to deposit amount of penalty up to specified date.

Muhammad Arif Alvi for Petitioner

Muhammad Qasim Khan, Asstt. A.‑G. for the State

Date of hearing: 1st November, 2001.

2002 M L D 1296

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD RAFIQUE

and others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.4371‑B of 2001, decided on 14th September, 2001.

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

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss. 471/420/468‑‑‑Pre‑arrest bail, confirmation of‑‑‑Only allegation against accused persons was that they had verified vendees of agreement to sell‑‑‑Original agreement had not been produced by Investigating Agency as same had not been provided by complainant‑‑‑Said agreement was not even produced by accused in the Court where they had sought specific performance of the said agreement‑‑‑Effect‑‑‑Unless and until agreement was secured and alleged signatures of accused were got compared with signature appearing on that agreement, accused could not be held responsible for the offence charged against them‑‑‑Interim pre‑arrest bail already granted to accused, was confirmed.

Zahid Hussain Khan for Petitioners

Dil Afroze Subhan for the State.

Syed Ghulam Nabi for the Complainant.

Date of hearing: 14th September, 2001.

2002 M L D 1321

[Lahore]

Before Tassaduq Hussain Jilani, J

JAN MUHAMMAD ‑‑‑Appellant

Versus

BASHIR AHMAD and others‑‑‑Respondents

Civil Revision No.174-D of 1995, decided on 25th June, 1995.

Civil Procedure Code (V of 1908)‑‑--

‑‑‑‑O.XLI, R.19‑‑‑Dismissal of appeal for non‑prosecution‑­admission ‑‑‑Appeal having been dismissed for non‑prosecution, appeal filed application for re‑admission of appeal which was dismissed for prosecution‑‑‑Application for restoration of application for re‑admission of appeal was also dismissed on ground that appellant had suppressed material facts and that affidavits of appellant and his counsel were properly drafted‑‑‑Appellant in his application for re‑admission of appeal which was dismissed in default, had clearly mentioned that his counsel had by inadvertence written wrong date of hearing of appeal‑‑‑Original diary shown to the Court had corroborated the stand taken by appellant before Court, but Appellate Court did not attend to that point and instead dismissed application of appellant for re‑admission of appeal for lack of proper drafting of application and affidavits attached thereto‑‑‑Though it was paramount duty of a counsel to diligently pursue case of his client and to take all precautions so that his client's interest was not in any way jeopardized, but if on account of bona fide mist of counsel or his clerk an incorrect date was written in case diary and that reason appeal or application was dismissed for non‑prosecution appellant/client should not be made to suffer and it would be in interest of justice to restore appeal and decide matter on merits‑‑‑Or dismissing application for re‑admission of appeal passed Appellate Court was set aside by the High Court with direct to decide application for re‑admission of appeal strictly on merits.

Municipal Committee, Rawalpindi through the Secretary Municipal Committee Rawalpindi v. Raja Muhammad Sarwar Khan 1968 SCMR 817 and Babu Jam Muhammad and others v. Dr. Abdul Ghafoor and others PLD 1966 SC 461 ref.

Syed Muhammad Anwar Shah for petitioner.

Jan Rashid Ahmad for Respondents.

2002 M L D 1329

[Lahore]

Before Muhammad Zafar Yasin, J

MUNIR MOHSIN and another‑‑‑Petitioners

Versus

VICE‑CHANCELLOR, BAHAUDDIN ZAKARIYA

UNIVERSITY, MULTAN and 3 others‑‑‑Respondents

Writ Petitions Nos. 12814 of 2000 and 932 of 2001, decided on 24th October, 2001.

(a) Estoppel‑‑‑

‑‑‑‑No estoppel against law.

(b) Department of Business Administration Baha‑ud‑Din Zakariya University Multan M.B.A. (Executive) Programme Rules‑‑‑

‑‑‑‑ Rr. 7 D, E & F‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Striping down validly made Rules‑‑‑Educational institution‑‑‑Admission to educational institution‑‑‑Petitioners had challenged R.7 D, E & F of Department of Business Administration Baha‑ud‑Din Zakariya University, Multan M.B.A. (Executive) Programme Rules as being harsh and cruel‑‑­Validity‑‑‑High Court, in exercise of Constitutional jurisdiction, had no jurisdiction to strike down any validly made Rules, Regulations or Instructions or law as harsh or cruel‑‑‑Rules challenged had been prospectively made applicable by an amendment introduced on 13‑6‑2001 and when the names of petitioners were struck off, Rules being not discriminatory, could not be struck down‑‑‑Contention that Rules were not duly notified through Prospectus was repelled because all Laws, Rules, Regulations could not be notified through Prospectus‑‑‑Candidate who seeks admission, was supposed to know Rules, Regulations applicable to his studies.

Saraha Malik v. Federation of Pakistan and others 2001 MLD 1026; Akhtar Ali Javed v. Principal, Quaid‑i‑Azam Medical College 1994 SCMR 532; Ali Yousaf and an other v. Chairman of Academic Principal Dow Medical College 2000 SCMR 1222; PLD 1964 SC 410 and PLD 1972 SC 279 ref.

Syed Shamim Abbas Bokhari for Petitioners.

Muhammad Rafique Rajwana assisted by Muhammad Tariq Rajwana for Respondents.

Date of hearing: 1st October, 2001.

2002 M L D 1341

[Lahore]

Before Ghulam Mahmood Qureshi, J

RAB NAWAZ‑‑‑Petitioner

Versus

PROVINCE OF THE PUNJAB and others‑‑‑Respondents

Civil Revisions Nos.1766 of 2000 and 5311 of 2001, decided on 22nd May, 2001.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), O.VII, R.2‑‑‑Suit for declaration and recovery of amount‑‑‑Plaintiff obtained lease for sale of Judicial Forms in Court premises in consideration of lease money and deposited earnest money while remaining lease amount was required to be deposited in four equal installments‑‑‑Petitioner, after depositing two installments, filed complaint to , the effect that some other persons without any lawful authority had started selling Judicial Forms along-with stamp papers, court‑fee stamps etc., during lease period of petitioner and claimed compensation for loss which he allegedly suffered due to sale of forms etc., by other un-authorised persons‑‑‑Plaint was completely silent on the point as to when the plaintiff abandoned contract of lease and stopped selling Judicial Forms and had admitted that he was selling Judicial Forms etc. in the Court premises‑‑‑No evidence was on record to substantiate allegations of plaintiff to the extent of loss actually suffered by him‑‑‑Suit with regard to recovery of .amount as compensation was dismissed‑‑‑ Appellate Court upheld finding of Trial Court but taking lenient‑ view found that plaintiff was entitled for adjustment of earnest money deposited by him‑‑‑Finding recorded by Appellate Court not suffering from any illegality or infirmity, could not be interfered with by High Court in exercise of its revisional jurisdiction.

Zahid Hussain Khan for Petitioner.

Mian Ghulam Hussain for Respondents

Date of hearing: 22nd May, 2001.

2002 M L D 1350

[Lahore]

Before Maulvi Anwarul Haq, J

HUKMI‑‑‑Petitioner

versus

MEMBER (JUDICIAL II), BOARD OF REVENUE PUNJAB, LAHORE and another‑‑‑Respondents

Writ Petition No.327 of 1994, heard on 9th October, 2001.

Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977‑‑‑

‑‑‑R.4(5)‑‑‑West Pakistan Land Revenue. Act (XVII of 1967), S. 163‑‑­Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑­Review‑‑‑Scope‑‑‑Ejectment suit which was not decided by Assistant Commissioner was transferred to Collector who observed that he had not been able to decide the case within statutory period of one month and since he was the Appellate Authority he sent back the case to Assistant Commissioner who decreed the suit and passed ejectment order against tenant‑‑‑Appeal filed against ejectment order was dismissed by Collector arid a revision filed by tenant` was dismissed by Additional Commissioner‑‑‑Second revision filed by tenant was dismissed by Member (Judicial), Board of Revenue but review filed by tenant was allowed by Member, Board of, Revenue and suit was dismissed on ground that only the Collector could have tried the suit filed by the plaintiff‑‑‑Validity‑‑‑Matter was transferred to the Collector who in his turn found that he had failed to decide suit within 30 days (statutory period) as mentioned in R.4(5) of Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977 and according to his judgment proceeded to remit the case to the Assistant Commissioner‑‑‑ No objection was raised on the basis of provisions of R.4(5) of Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977 either before the Assistant Commissioner when the case was sent back to him or before the Collector or the Additional Commissioner or even before Member, Board of Revenue‑‑‑Revenue Authorities could not, therefore, render a judgment or a finding on question of jurisdiction which could be corrected in review‑‑‑Order allowing review by Member, Board of Revenue, was set aside by the High Court in circumstances.

Muhammad Rafi and others v. Additional Commissioner (Rev.), Sargodha and others 1981 SCMR 1181; Ashfaq Khalid and others v. Muhammad Hanif and 9 others 1988 SCMR 74 and Muhammad Hafeez v. Jalal Din and others 1981 SCMR 1171 ref.

Ch. Muhammad Zafar for Petitioner.

Sh. Abdul Aziz for Respondent No.2.

Date of hearing: 9th October, 2001.

2002 M L D 1358

[Lahore]

Before Karamat Nazir Bhandari, J

IRFAN JAMIL KHAN‑‑‑Petitioner

versus

UNIVERSITY OF ENGINEERING AND TECHNOLOGY, and others‑‑‑Respondents

Writ Petition No.6666 of 1998, decided on 18th April, 1998.

(a) Educational institution‑‑‑

Getting admission on basis of forged and bogus result card‑‑­Expulsion from University‑‑‑Candidates who had obtained admission on the basis of forged and bogus result cards were expelled from the University‑‑‑Original and primary record having been found forged and tampered with, result cards and degrees issued to candidates would automatically fall and once result was cancelled and recalled whole superstructure of admission of candidates would also fall‑‑‑Candidates who were beneficiaries of forged documents could not say that forgery or fraud was one without their knowledge, connivance and involvement‑‑­Candidates, in circumstances, were rightly expelled from the University‑‑‑Authority before taking action against the candidates though had not issued any notice to them, but in circumstances of the case such failure would not improve the lot of candidates as it had been found from original source that result of candidates had been improved through forgeries.

PLD 1975 SC 331 and PLD 1958 SC 104 ref.

(b) Estoppel‑‑‑

‑‑‑‑Fraud‑‑‑No estoppel against statute ‑‑‑Fraud was vitiative of all proceedings in law.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Educational institution‑‑‑Getting admission on basis of forged and bogus result card‑‑‑Expulsion from University‑‑‑Petitioners/candidates who obtained admission in University of Engineering and Technology on the basis of forged and bogus result cards, were expelled from University‑‑‑Petitioners who were beneficiaries of forged and bogus result cards, could not be allowed any relief in exercise of equitable and discretionary jurisdiction under Art.199 of Constitution of Pakistan (1973)‑‑‑Grant of writ could be withheld even against a void order‑‑‑Effect of issuing writs in such cases would be to permit candidates to reap benefits of their own fraud and forgeries‑‑‑Such candidate having not pleaded any ill‑will or mala fides on the part of Authorities, were rightly expelled.

Ronaq Ali's case PLD 1973 SC 236 ref.

Mahfuz‑ul‑Haq and Ch. Tariq laved for Petitioner.

Nasim Mahmood with Muhammad Ismail, Administrative Officer, University of Engineering for Respondent No. 1.

Muhammad Amin Lone, A.A.‑G. with Muhammad Ashraf and Muhammad Bashir Khan, Senior Clerks, University of Punjab with Record.

2002 M L D 1366

[Lahore]

Before Nazir Ahmad Siddiqui, J

SHAH MUHAMMAD ‑‑‑Petitioner

versus

MANZOOR AHMAD‑‑‑Respondent

Civil Revision No.54‑D of 2000, decided on 31st March, 2000.

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

‑‑‑‑O. VII, R.11‑‑‑Rejection of plaint‑‑‑Essentials‑‑‑Provisions of R.11 of O.VII, C.P.C. could be invoked to reject plaint, if it did not disclose cause of action; where plaintiff failed to correct valuation within a period given by Court; where plaint was written upon paper unsufficiently stamped and plaintiff failed to supply requisite stamp paper within time given by Court; and where suit suffered from statement appearing in plaint to be barred by any law.

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss.4 & 21‑‑Civil Procedure Code (V of 1908)‑‑‑S.115, O.VII, R.11‑‑‑Suit for pre‑emption ‑‑‑Rejection of plaint‑‑‑Defendant resisted suit contending that it was patently time‑barred and plaint was liable to be rejected‑‑‑Validity‑‑‑Court had to confine itself to averments made in the plaint in order to attract provisions of O.VII, R.11, C.P.C.‑‑­Plaintiff had given details to show that his suit was well within period of limitation‑‑‑Question of limitation being a mixed question of law and facts, required evidence which could be produced only after framing of issues on that point‑‑‑Appellate Court set aside order of Trial Court whereby plaint was rejected‑‑‑Appellate Court passed judgment after considering matter in its true perspective and had committed no material irregularity and illegality which could warrant interference of High Court in its revisional jurisdiction.

Raja M. Sohail Iftikhar for Petitioner.

Ashiq Muhammad Faiz and Syed Muhammad Anwar Shah for Respondent.

Date of hearing: 27th March, 2000.

2002 M L D 1372

[Lahore]

Before Muhammad Saeed Akhtar, J

MUHAMMAD KHAN and others‑‑‑Petitioners

versus

GHULAM ABBAS and others‑‑‑Respondents

Civil Revision No.68 of 1989‑90, decided on 25th May, 2001.

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 15 & 21‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Civil Procedure Code (V of 1908), O. II, R.2(3), O. VI, R.17 and O.XXIII, R.1 (1)‑‑‑Suit for pre‑emption and declaration‑‑‑Maintainability‑‑‑Abandonment of one of such reliefs ‑‑‑Plaintiff filed suit for declaration claiming to be owner in possession of half share in suit land on ground that he was an occupancy tenant and pre‑empted remaining half share as co sharer/owner in the estate‑‑‑Trial Court decreed suit, but Appellate Court dismissed suit mainly on ground that suit for declaration alongwith pre­emption was not competent‑‑‑Plaintiff had prayed that he would give up his claim of pre‑emption and would like to pursue suit for declaration only, but defendant opposed that the same could not be done at such last stage‑‑‑Validity‑‑‑Plaintiff could give up any of reliefs claimed and retain other and such exercise would not change the nature of suit‑‑‑By foregoing plea of pre‑emption nothing new was being introduced by plaintiff in the plaint‑‑‑Appellate Court having not given his finding on certain issues, case was remanded for writing judgment on those issues as well in accordance with law.

Ajmal Kamal Mirza for Petitioners.

Ch, M. Munir Akhtar Minhas for Respondents.

Date of hearing: 25th May, 2001.

2002 M L D 1379

[Lahore]

Before Asif Saeed Khan Khosa, J

MUNIR AHMAD‑‑‑Petitioner

versus

PROVINCE OF PUNJAB through District Collector, Toba Tek Singh and others‑‑‑Respondents

Writ Petition No.20652 of 2001, decided on 21st November, 2001.

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

‑‑‑‑Art: 199‑‑‑Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Factual inquiry‑‑‑Scope‑‑‑Police was to investigate a crime reported to it and High Court would not like to scuttle or stifle the duty of the police at such a premature stage‑‑‑Petitioner was to satisfy the Investigating Officer of the criminal case and not High Court about the stated falsity of the allegations levelled in the F. I. R. ‑‑‑Question whether allegations levelled by complainant in F.I.R. were actually correct or not necessarily required holding of factual inquiry which exercise could not be undertaken by High Court in summary proceedings under Art. 199 of the Constitution.

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

‑‑‑‑Art. 199‑‑‑Criminal Procedure Code (V of 1898), S.249‑A‑‑­Constitutional petition‑‑‑Quashing of F. I. R. ‑‑‑Alternate remedy‑‑­Petitioner sought quashing of F.I. R. registered against him‑‑‑Petitioner also had remedy available before the Trial Court by way of submitting application under S.249‑A of Cr.P.C. seeking his premature acquittal‑‑­Petitioner had many other statutory remedies available to him‑‑­Constitutional petition was not maintainable.

Haji Muhammad Sadiq v. Ilaqa Magistrate, Police Station Factory Area, Faisalabad and others 2001 PCr. LJ 1571; Farrukh Salim v. The State PLD 1997 Lah. 385 and Qaisar Mahmood v. Muhammad Shafi and another PLD 1998 Lah. 72 ref.

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

‑‑‑‑S. 56(e)‑‑‑Injunction against criminal investigation‑‑‑Legality‑‑‑No injunction can be granted against criminal investigation in view of provisions of S. 56(e) of the Specific Relief Act, 1877.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition ‑‑‑Pendency of proceedings before Civil Court‑‑‑Effect‑‑‑No universal principle exists that proceedings in criminal case must be stayed when similar or identical matter is pending before Civil Court.

Syed Muhammad Ahmad v. The State 1972 SCMR 85; Muhammad Akbar v. The State and Maulvi Muhammad Yasin Khan PLD 1968 SC 281; Akhtar Hussain Zaidi v. The State PLD 1985 Lah. 662 and Mst. Naereen Bibi v. Sub‑Registrar/M.I.C. Model Town, Lahore and 2 others 2000 YLR 47 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Harassment by police‑‑­Remedies‑‑‑Plea raised by the petitioner was that civil suit regarding the same subject‑matter was pending before the Civil Court and the criminal case was registered only to cause harassment to the petitioner‑‑­Validity‑‑‑Any attempt made by police to associate the petitioner with the investigation of the criminal case registered against him could not be termed or branded as unlawful harassment‑‑‑Where the official respondents were unjustifiably harassing the petitioner, the remedies in that regard were before the higher police Authorities rather than approaching High Court in the first instance‑‑­High Court declined to interfere in the matter‑‑‑Petition was dismissed in limine.

M. Yaqub Pannu for Petitioner.

2002 M L D 1388

[Lahore]

Before Kh. Muhammad Sharif, J

MUHAMMAD AKHTAR and others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.6308‑B of 2000, decided on 28th November 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code ‑(XLV of 1860), Ss. 420/468/471‑‑‑Bail, grant of‑‑‑Accused were behind bar for last five months‑‑Challan had already been submitted in Court and accused were no more required by police‑‑‑Offence against accused did not fall within prohibitory clause of S.4970), Cr.P.C.‑‑‑Accused were admitted to bail in circumstances.

Zahid Hussain Khan for Petitioners

Ch. Muhammad Hanif Khatana, Addl. A.‑O. for the State

Muhammad Younus Rana for the Complainant

2002 M L D 1395

[Lahore]

Before Sheikh Abdur Razzaq, J

GHULAM MADNI‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1192‑B of 2000, decided on 18th May. 2001

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S. 302/34‑‑‑Bail, grant of‑‑­‑Accused was not nominated in F.I.R. and no identification parade had been held to connect accused with commission of offence‑‑‑No incriminating article had been .recovered from the accused‑‑‑Such facts were sufficient to make case of accused open for further inquiry‑‑­Accused was in jail for last one year and two months‑‑‑Accused, in circumstances, was admitted to bail.

Muhammad Rafique v. The State 1997 SCMR 412 ref.

Ch. Abdul Ghaffar Bhutto for Petitioner

M.A. Farazi for the State

2002 M L D 1409

[Lahore]

Before Mian Saqib Nisar, J

Mst. MAQSOODAN and others‑‑‑Petitioners

versus

MUHAMMAD MUQARAB and others‑‑‑Respondents

Civil Revision No.831 of 1989, decided on 12th April, 2001.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.42‑‑‑Transfer of Property Act (IV of 1882), S.52‑‑‑Suit for declaration‑‑‑Principle of lis pendens‑‑‑Applicability‑‑‑Plaintiffs who claimed ownership of suit house had challenged sale of house made in favour of predecessor‑in‑interest of defendants‑‑‑Defendants had claimed that they had purchased the suit house from Town Committee vide sale‑deed and that they were owners in possession on basis of that sale‑deed‑‑‑Validity‑‑‑Sale having been made during pendency of suit, principle of lis pendens would be applicable, besides defendants had failed to establish, if Town Committee was owner of suit property which could validly be conveyed to defendants‑‑‑Courts below, in circumstances, had rightly decreed the suit as plaintiffs had proved that suit property was owned by their predecessor‑in‑interest.

Zahida Hussain Khan for Petitioners.

Muhammad Zahoor, Tax Clerk, Municipal Committee, Shahpur, District Sargodha.

Date of hearing: 12th April, 2001.

2002 M L D 1419

[Lahore]

Before Muhammad Saeed Akhtar, J

MUHAMMAD SALEEM and others‑‑‑Appellants

versus

Mst. RASOOL FATIMA and 5 others‑‑‑Respondents

Regular Second Appeal No.40 of 1995, decided on 20th November, 2001.

Specific Relief Act (I of 1877)‑‑‑‑

‑‑‑‑Ss.12, 21 (c) & 54‑‑‑Suit for possession through specific performance of agreement and permanent injunction‑‑‑Arrangements arrived at between members of family‑‑‑Private partition of property‑‑‑After demise of original owner of suit property, property had been devolved upon his legal heirs including plaintiffs and defendants‑‑ Property was divided amongst joint owners through a private partition through an agreement‑‑­According to terms of agreement if any party wanted to sell his share in property, he would offer‑ it for sale to other co‑sharer and on his refusal owner would be at liberty to sell the same to anyone‑‑‑When defendants/co‑sharers planned to sell their shares in property to other person, plaintiff filed suit for permanent injunction against defendants restraining them from selling property to person other than plaintiff‑‑­Suit was resisted by defendants contending that agreement arrived at between the parties was not enforceable under S.21(2) of Specific Relief Act, 1877‑‑‑Validity‑‑‑Contention was repelled because no ambiguity or uncertainty existed in agreement and also its terms which were very clear and were enforceable at law‑‑‑When an arrangement had been arrived at between members of family that was designed to provide peace and goodwill among its members, which by itself was a good consideration to support transaction‑‑‑Court would not scan too closely the quantum of consideration for the agreement in cases of family arrangement‑‑­Agreement by one of the parties to a partition to take a smaller share could be sustained when that was done for preservation of family property or honour.

Mst. Latif Jahan Begum v. Muhammad Nabi Khan AIR 1932 All. 174 ref.

Ch. Nusrat Javed Bajwa for Appellants

Hashmat Ali Raza for Respondent.

Date of hearing: 20th November, 2001.

2002 M L D 1424

[Lahore]

Before Tassaduq Hussain Jilani, J

MUHAMMAD HUSSAIN and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.6849‑B of 2001, decided on 11th December, 2001.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss. 382/411‑‑‑Bail, grant of‑­Delay of eight days in lodging F.I.R.‑‑‑Prosecution story itself showed that the tractors in question were purchased on instalments and there was dispute regarding payment of those instalments and matter was referred to Panchayat even prior to the registration of case‑‑‑Seven out of nine accused persons had been declared innocent during investigation‑‑­Accused who were in judicial lock‑up were admitted to bail.

Nazar Abbas Syed for Petitioners

Ch. Muhammad Mustafa for the State

2002 M L D 1428

[Lahore]

Before Falak Sher, CJ

Mst. SHAZIA PARVEEN‑‑‑Petitioner

versus

MUHAMMAD ASHRAF‑‑‑Respondent

Transfer Application No.373‑C of 2001, decided on 20th November, 2001.

West Pakistan Family Courts Act (XXXV of 1962)‑‑‑

‑‑‑‑S.25‑A‑‑‑Transfer of case‑‑‑Wife filed suit for dissolution of marriage against her husband in Court at place 'L' whereas husband filed suit for restitution of conjugal rights in Court at place 'F'‑‑‑Wife sought transfer of case filed against her in Court 'F' to Court at place `L' where her suit was pending adjudication urging female convenience and to avoid contradictory judgment‑‑‑Contentions urged by wife were well based duly borne out from the appendices and also remained un­controverted‑‑‑‑Suit was transferred from Court at place 'F' to Court at place 'L' for adjudication.

Umar Hayat Tahir for Petitioner.

Nemo for Respondent.

Date of hearing: 20th November, 2001.

2002 M L D 1433

[Lahore]

Before Falak Sher, C.J. and Muhammad Asif Jan, J

NAZIM KHAN and 3 others‑‑‑Petitioners

versus

SPECIAL JUDGE, ANTI‑TERRORISM COURT, FAISALABAD and others‑‑‑Respondents

Writ Petition No. 13585 of 1999, decided on 20th September, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/34‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss. 2(e) & 6‑‑‑Transfer of case from Special Judge Anti‑Terrorism Court to Sessions Judge‑‑‑Deceased was a police personnel on home leave and incident had sparked off over a triviality bearing no nexus with discharge of official duties of the deceased‑‑‑Accused fired with a view to avenging altercation ensued over cock's fight‑‑‑Anti‑Terrorism Court, in circumstances, would have no jurisdiction in the matter‑‑‑Submission of challan for trial of case before Special Judge Anti‑Terrorism Court, was declared to be without lawful authority and case was transferred to Sessions Judge for proceeding with same in accordance with law.

Ch. Ali Muhammad for Petitioners

Ch. Nasim Sabir, Addl. A.‑G. for Respondent No. 1.

Zafarullah Cheema for Respondent No.2

2002 M L D 1435

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Iqbal, JJ

FALAK SHER ‑‑‑Petitioner

versus

I.‑G. and others‑‑‑Respondents

Writ Petition No. 11085 of 1998, decided on 4th December, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.35 & 397‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Sentence‑‑­Running of sentences concurrently‑‑‑Accused who were convicted for commission of murder of four persons, were sentenced to death on four counts, but in appeal their sentences of death were altered from death to imprisonment for life on each count‑‑‑Accused who had already served out sentence for a period of more than 25 years had prayed that direction be issued to Jail Authorities to consider sentence on four counts to run concurrently and that as they had already served out sentence for period of more than 25 years they should be ordered to be released forthwith‑‑‑One person could not be imprisoned for more than a period of 25 years‑‑‑High Court ordered that sentences awarded to accused on four counts, be considered to run concurrently.

2000 PCr.LJ 1905; 1986 SCMR 1673; 1987 SCMR 1382 and PLD 1992 SC 14 ref.

Raja Abdur Rehman for Petitioner.

Taffazal H. Rizvi for the State.

Date of hearing: 4th December, 2001.

2002 M L D 1437

[Lahore]

Before Sheikh Abdur Razzaq, QAMAR AWAN‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.5606‑B, of 2001, decided on 25th October, 2001.

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S.497(2)‑‑‑Penal. Code (XLV of 1860), Ss.382/411‑‑‑Bail grant of‑‑­Only a dagger was alleged to have been recovered from accused‑‑‑No amount alleged to have been snatched from the complainant was recovered from accused ‑‑‑Case against accused requiring further probe, he was admitted to bail.

M.M. Afzal on behalf of Ejaz Ahmad Awan for Petitioner.

Kazim Iqbal Bhango for the State.

Date of hearing: 25th October, 2001.

2002 M L D 1446

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD YAQUB and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.520 of 2000, decided on 1st February, 2002.

Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑Ss.302/324/337‑A(ii)(iii)/337‑F(v)/147 & 149‑‑‑Appreciation of evidence—No delay in recording F.I.R.--Accused who caused injuries to the deceased and prosecution witnesses with their respective Sotas, were nominated in the F. I. R. ‑‑‑Presence and participation of accused in occurrence had been established by injured prosecution witnesses and were also proved during investigation‑‑‑Two ladies from side of accused parties who were also injured in the same occurrence, were examined medically by same doctor who opined that injuries on person of said ladies though were minors in nature, but could not be self­-suffered‑‑‑Said injuries on person of two ladies had been suppressed and had not been explained in F. I. R. by the complainant‑‑‑Motive of occurrence as had been alleged by prosecution had not been proved during trial‑‑‑No previous enmity was shown between the parties‑‑‑Marriage ceremony being held in the house of neighbours, possibility could not be ruled out that quarrel took place between women of both the families which resulted into altercation between parties and the ,injured prosecution witnesses‑‑‑Accused might have arrived at the spot with their respective weapons after women from accused's side were injured from the complainant and a fight took place at spur of the moment‑‑­Incident appearing to be a sudden fight under provocation for causing injuries to ladies of accused party and being not a premeditated attack‑‑­Conviction of accused was altered from S.302(b) to 302(c), P.P.C. and were sentenced accordingly.

Malik Saeed Hassan and N.A. Butt for Appellants.

Allah Bakhsh Gondal for the Complainant.

Nadeem Qadeer Bhunder for the State.

Dates of hearing: 31st January and 1st February, 2002.

2002 M L D 1459

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Iqbal. JJ

SHAHID alias SHAH‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.80 and Murder Reference No. 115 of 1997, decided on 26th February, 2002.

(a) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑Ss.302/364‑‑‑Appreciation of evidence‑‑‑Circumstantial evidence‑‑­Value‑‑‑Delay in registering case against accused had sufficiently been explained‑‑‑Prosecution witness though was relative of complainant, but had no previous enmity with accused for his false implication‑‑‑Accused had also confessed his guilt before prosecution witness‑‑‑Ocular account furnished by complainant and prosecution witnesses had fully been corroborated by medical evidence and recovery of dead body on pointation of accused‑‑‑Prosecution case had further been corroborated by recovery of weapon of offence which was blood‑stained‑‑­Circumstantial evidence though was a weak type of evidence, but if no link in the chain was found missing and circumstances would lead to guilt of accused, then conviction could be recorded on basis of circumstantial evidence‑‑‑Complainant had no motive for false implication of accused and real mother of deceased‑‑‑Last seen evidence, corroborated, by extra‑judicial confession made by accused and recovery of dead body on pointation of accused coupled with medical evidence had shown that prosecution had established its case beyond any shadow of doubt‑‑‑Conviction recorded by Trial Court against accused, could not be interfered with‑‑‑No direct evidence was available against accused and co‑accused had been acquitted of charge by disbelieving statements of same witness‑‑‑It was, therefore, not safe in circumstances to maintain capital punishment of death of accused on basis of circumstantial evidence‑‑‑Sentence of death of accused was reduced to imprisonment for life.

(b) Criminal trial‑‑‑

‑‑‑Evidence‑‑‑Circumstantial evidence‑‑‑Circumstantial evidence though was a weak type of evidence, but if no link in the chain was found hissing and circumstances would lead to guilt of accused, then conviction could be recorded on basis of circumstantial evidence.

Rana Ijaz Ahmad Khan for Appellant.

Ashfaq Qayum Cheema for the Complainant.

Ch. Imtiaz Ahmed for the State

Date of hearing: 26th February, 2002

2002 M L D 1465

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Iqbal, JJ

ASHIQ HUSSAIN and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 155 and Murder Reference No. 290 of 1997, decided on 27th February, 2002.

Penal Code (XLV of 1860)---

‑‑‑Ss.302/460/34‑‑‑Appreciation of evidence‑‑‑No delay in lodging the F.I.R. wherein accused were nominated‑‑‑ Son and widow of deceased being inmates were natural witnesses of the occurrence‑‑‑No reason for false implication of accused by letting off real culprits existed‑‑­Prosecution witnesses stood test of lengthy cross‑examination, but their testimony was not shattered` and they were proved to be truthful and confidence‑inspiring witnesses as no material had been brought on record to disbelieve their testimony‑‑‑Ocular account furnished by both eye­witnesses had fully been corroborated by medical evidence and by recovery of weapons of offence‑‑‑Conviction of accused, could not be interfered with, in circumstances‑‑‑Weapons of offence used by accused were Soties of ordinary nature and it had not been specifically stated as to who had caused fatal injury‑‑‑Absence of motive or weakness of motive though was no ground to award lesser penalty, but in the present case complainant had alleged that some altercation had taken place between deceased and accused about 3/4 months ago‑‑‑Defence plea was that some dispute existed between the parties over claim of hand of a girl for marriage‑‑‑Some important facts appeared to have been concealed by parties and what happened immediately before occurrence, was not clear‑‑‑High Court, for administration of criminal justice, substituted the sentence of death awarded with that of imprisonment for life.

Syed Zahid Hussain Bukhari for Appellants.

S.M. Latif Khan Khosa for the Complainant.

Malik Muhammad Aslam Khokhar for the State.

Date of hearing: 27th February, 2002.

2002 M L D 1471

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman, J

KHALID alias KHADI‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.7004‑B of 1999, decided on 17th January, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑­Only allegation against accused was that of his presence at the spot‑‑­Accused had neither caused any injury to the deceased nor had fired with his weapon during whole affair‑‑‑Question with regard to vicarious liability of accused was yet to be resolved by the Trial Court after proper appreciation of evidence‑‑‑Accused was no more required for investigation‑‑‑Case being of further inquiry within purview of S.497(2). Cr.P.C. accused was, admitted to bail.

Sardar Shaukat Ali for Petitioner.

Ijaz Ahmad Bajwa for the State.

2002 M L D 1474

[Lahore]

Before Sayed Jamshed Ali and Mian Saqib Nisar, JJ

MUZAFFAR JAVED‑‑‑Appellant

versus

Haji NOOR BAKHSH and others‑‑‑Respondents

Regular First Appeal No. 8 of 1990, decided on 31st January, 2002

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

‑‑‑‑Ss.12 & 26(e)‑‑‑Specific performance of agreement‑‑‑Subsequent variation in agreement‑‑‑Parties were bound to perform terms of an agreement as originally entered between them, but according to provisions of S.26(e) of Specific Relief Act, 1877, an agreement could be enforced in the light of subsequent variation subject to condition that original agreement was not completely abandoned by the parties.

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

‑‑‑Ss.12 & 24(b)‑‑‑Suit for specific performance of agreement‑‑­Entitlement to seek specific performance‑‑ ‑When vendee/plaintiff himself was not ready and willing to perform his part of agreement, rather had violated terms of the same, he was not entitled to seek specific performance of agreement.

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

‑‑‑‑S.12‑‑‑Limitation Act‑ (IX of 1908), Art.113‑‑‑Suit for specific performance of agreement‑‑‑Limitation‑‑‑Period for completion of transaction as per agreement was fixed as one year from the date of execution of agreement, but suit was filed beyond period of three years fixed for performance of agreement‑‑‑Suit was barred by time in view of Art. 113 of Limitation Act, 1908.

M.A. Aziz for Appellant

Ch. Ali Muhammad and A. H. Masood for Respondents

Dates of hearing: 22nd, 23rd and 31st January, 2002.

2002 M L D 1479

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman, J

MOHSAN RAZA‑‑‑Petitioner

versus

THE STATE and another ‑‑‑Respondents

Writ Petition No.7475 of 1998, decided on 19th October, 1998

Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S.302/34‑‑‑Criminal Procedure Code (V of 1898), S.190‑‑‑Constitution of Pakistan (1973). Art.199‑‑‑Constitutional petition Quashing of order‑‑‑Accused and co‑accused who were granted bail kept on attending the Court‑‑‑When case was fixed for framing of the charge, petitioner filed application praying therein that as he had been placed in Column No.2 unless there was formal order for summoning him straightway charge could not be framed‑‑‑Trial Court dismissed that application and framed charge‑‑‑Validity‑‑‑Incomplete challan had been placed before the Court, petitioner and his co‑accused kept on attending Court regularly even after grant of bail and had never absented‑‑‑Objection raised by petitioner/accused was too technical and which neither prejudiced his case nor would it factually affect proceedings pending before Trial Court as Court would take cognizance of the whole case and not of accused alone‑‑‑Interim order having clearly indicated that petitioner had been attending Court regularly, there was no need for formal summoning the accused to face trial.

Javaid Iqbal Hashmi for Petitioner.

2002 M L D 1489

[Lahore]

Before Iftikhar Hussain Chaudhry and Mrs. Nasira Iqbal, JJ

NOOR AHMAD‑‑‑Petitioner

versus

THE STATE and others‑‑‑Respondents

Criminal Miscellaneous No.2519‑C/B of 2001, decided on 13th August, 2001.

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

‑‑‑‑S.497(5)‑‑‑Penal Code (XLV of 1860), Ss.365, 392, 337(iii), 148 & 149‑‑‑Bail‑‑‑Application for cancellation of bail‑‑‑Offences with which accused stood charged prima facie would entail maximum sentence of 7 years‑‑‑Court below had allowed bail to accused persons on ground that their case would‑ not fall within prohibitory clause of S,497, Cr.P.C.‑‑­View of Court below did not militate against law‑‑‑Bail granting order in circumstances would not call for any interference.

Ch. Muhammad Amin for Petitioner.

Mian Shahid Rasool for the State

Waqar Saleem Malik for the Accused

2002 M L D 1499

[Lahore]

Before Maulvi Anwarul Haq, J

IFTIKHAR HUSSAIN ‑‑‑Petitioner

versus

PROVINCE OF PUNJAB and others‑‑‑Respondents

Civil Revision No.2200 of 2000, decided on 20th February, 2001.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2‑‑­Suit for declaration‑‑‑Application for grant of temporary injunction‑‑­Application for temporary, injunction having been dismissed by Trial Court, applicant filed appeal against order of Trial Court‑‑‑Applicant, during pendency of appeal made offers that Court could direct Halqa Revenue Officer to conduct demarcation of property in question and in case alleged encroachment, was found, same should be removed and that demarcation report would not be objected to by him‑‑‑Court accepted the offer and directed ‑demarcation accordingly‑‑‑Revenue Officer after demarcation, reported that applicant had encroached upon public thoroughfare and on said report Appellate Court dismissed appeal filed by applicant against order of Trial Court‑‑‑No objection was raised by plaintiff to the said report for more than 40 days from submission of report by Revenue Officer‑‑‑Applicant, in circumstances, could not make any grouse on said account‑‑‑Matter of temporary injunction was to be decided on tentative appraisement of case‑‑‑Proceedings having been conducted with consent of parties, applicant had no prima facie case-‑­Appellate Court, in circumstances, had not committed any error of law and Court also could not be said to have acted with any material irregularity in exercise of its jurisdiction while dismissing appeal of applicant‑‑‑No case for interference of High Court in exercise of its revisional jurisdiction having been made out, revision petition was dismissed.

Muhammad Salim Chaudhry for Petitioner.

Ali Muhammad Chaudhry for Respondents

Date of hearing: 20th February, 2001.

2002 M L D 1526

[Lahore]

Before Raja Muhammad Sabir, J

Mst. MUSARRAT KHATOON‑‑‑Petitioner

versus

ZAFAR ALI and others‑‑‑Respondents

Writ Petition No. 18728 of 2000, decided on 3rd May, 2001

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

‑‑‑‑Ss.5, 14(2)(c) & Sched.‑‑‑Suit for maintenance‑‑‑Appeal, maintainability of‑‑‑Suit filed by plaintiff for maintenance for herself as well as for her minor daughter was decreed by Trial Court and Appellate Court, in appeal, partly accepted appeal and maintenance allowance granted to plaintiff was set aside whereas maintenance granted to minor daughter was maintained‑‑‑Validity‑‑‑No appeal under S.14(2)(c) of West Pakistan Family Courts Act, 1964 was maintainable against maintenance of Rs.500 or less per month‑‑‑Maintenance allowance in case having been granted to plaintiff at rate of Rs.500 per month, judgment and decree passed by Trial Court was not appealable ‑‑‑Appellate Court being not competent to entertain appeal, order passed by it was coram non judice and was of no legal effect.

Zahid Hussain Khan for Petitioner.

Muhammad Farooq Qureshi Chishti for Respondent No. l

2002 M L D 1529

[Lahore]

Before Karamat Nazir Bhandari, J

ATTA MUHAMMAD ‑‑‑Petitioner

versus

HADI BAKHSH and others‑‑‑Respondents

Writ Petition No.2710 of 1989, decided on 27th October, 2000

Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑O.VII, R.2-‑‑Conciliation Courts Ordinance (XLIV of 1961), Ss.2(b) & 3‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Suit for recovery of amount‑‑‑Questions not raised before Courts below‑‑‑Suit filed before Civil Court was returned for presentation before Conciliation Court‑‑‑Conciliation Court entertained suit and decreed the same after recording evidence and revision filed against judgment of Conciliation Court was dismissed by Revisional Court‑‑‑Defendant/petitioner who filed Constitutional petition against judgment passed in revision; raised certain objections with regard to jurisdiction of Conciliation Court, limitation ‑and undue influence allegedly brought by plaintiff/respondent on him‑‑‑Said objections were not raised by petitioner at the appropriate time in Courts below‑‑‑Even in High Court, apart from a bald assertion, it had not been shown by petitioner as to how claim of respondent was barred by time‑‑‑Parties had agreed to have matter resolved on oath which was administered and in terms of agreement, amount in dispute was to be delivered to plaintiff/respondent, but petitioner despite administration of oath, turned around and agitated same controversy‑‑‑Such conduct of petitioner alone would suffice to dismiss his Constitutional petition even if he was to succeed on all other grounds.

Ghulam Muhammad Sajrah for Petitioner.

Zahid Hussain Khan for Respondent No

Nemo for Respondent No.2

Muhammad Amin Lone, Asstt. A.‑G., Punjab for Respondents Nos. 3 and 4.

Date of hearing: 27th October, 2000.

2002 M L D 1533

[Lahore]

Before Ch. Ijaz Ahmad, J

Haji MUHAMMAD IBRAHIM and others ‑Petitioners

versus

DEPUTY COMMISSIONER, MANDI BAHAUDDIN and others‑‑‑Respondents

Writ Petition No. 18691 of 2000, decided on 9th July, 2001.

Constitution of Pakistan (1973)‑‑‑‑

‑‑‑‑Arts.199 & 4‑‑‑Constitutional petition‑‑‑Duty and obligation of public functionaries‑‑‑ Public functionaries had to redress grievance of citizen without fear, 'favour and nepotism with reasons and no one should be finalized by inaction of public functionaries‑‑‑Where the order passed by Authority did not contain any reason and it was passed in a summary manner without applying independent mind such order was set aside by High Court in exercise of its Constitutional Jurisdiction.

Messrs Airport Support Services case 1998 SCMR 2268; Ahmad Latif Qureshi's case PLD 1994 Lah. 3 and Pir Bakhsh v. The Chairman, Allotment Committee and others PLD 1987 SC 145 ref.

Muhammad Arif Raja for Petitioners.

Qazi M. Mohy‑ud‑Din for Respondents Nos. l and 2.

Haji Meeran Malik and Shahzad Shoukat for Respondent No.3

2002 M L D 1552

[Lahore]

Before Zafar Pasha Chaudhry, J

REHAM ALI ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Revision No.748 and Criminal Miscellaneous No. 1 of 2001, decided on 20th June, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.320/331‑‑‑Payment of Diyat‑‑‑Release of accused‑‑‑Accused who was convicted and sentenced to two years' R.I. and also to pay Diyat amount, had practically served out sentence of imprisonment and only sentence remained to be unserved in payment of Diyat‑‑‑Accused had pleaded that he had no source whatsoever to pay amount of Diyat and if he be released on bail, he would arrange payment of same within a period of three years in 36 equal instalments‑‑‑Accused who had served out his sentence of imprisonment of two years, was released on bail for a period of three years to be able to make payment of Diyat amount in 36 equal monthly instalments to legal heirs of the victim.

Amjad Mahmood v. The State 2001 PSC (Crl.) 222 and Muhammad Iqbal and others v. The State 2001 MLD 1100 ref.

Iqbal Mahmood Awan for Petitioner.

Ch. Nizam‑ud‑Din Arif for the State.

Date of hearing: 20th June, 2001.

2002 M L D 1563

[Lahore]

Before Iftikhar Hussain Chaudhary, J

MUHAMMAD IQBAL‑‑‑Petitioner

versus

THE STATE and others‑‑‑Respondents

Criminal Miscellaneous Nos.24 and 25 of 1996, decided on 2nd December, 1997.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S. 561‑A‑‑Penal Code (XLV of 1860), S.188‑‑‑Quashing of proceedings‑‑‑Case against accused was 'registered at the instance of Assistant Commissioner on the ground that accused had lifted wheat crop without permission of landlord in violation of order passed by District Magistrate under S.144, Cr.P C. whereby tenants were required to lift crops after paying due shares of landlords‑­Accused being tenants, had been sharing produce with original landlord‑‑‑Dispute was between original landlord and a lady and Civil Court in suit for declaration filed by original landlord granted and confirmed ad interim injunction in favour of the original landlord‑‑‑By the time crop in question was harvested original landlord continued to be landlord of accused and opposing lady could not claim from accused share of crop in question which they had already paid to original landlord and original landlord had not complained against the accused‑‑‑Assistant Commissioner without taking into consideration such situation and legal position directed for registration of case against accused which direction was unlawful and amounted to violating order passed by Civil Court of competent jurisdiction and was not sustainable in law or on facts ‑‑‑F.I.R. registered under S.188, P.P.C. against accused and subsequent proceedings, were quashed, in circumstances.

Akhtar Masood Khan for Petitioner.

Malik Muhammad Qasim Joya for the State

Date of hearing: 2nd December, 1997.

2002 M L D 1574

[Lahore]

Before Nazir Ahmad Siddiqui, J

TANWIR AHMAD‑‑‑Petitioner

versus

S.S.P., SAHIWAL, and others‑‑‑Respondents

Writ Petition No.8027 of 2001, decided on 6th November, 2001.

Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑Ss.420, 465, 466, 467, 468, 472 & 474‑‑‑Punjab Anti‑Corruption Establishment Rules, 1985, R.8‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Quashing of F. I. R. ‑‑‑Contentions of the accused were that case against him and co‑accused could not have been registered except under orders of officers mentioned in R. 8 of Punjab Anti‑Corruption Establishment Rules, 1985 and that direction of Magistrate and registration of F.I.R. pursuant thereto in circumstances could not be lawfully maintained‑‑‑Contention of accused was supported by case‑law and same were also not controverted by Law Officer ‑‑­F.I.R. technically being not maintainable, was liable to be cancelled‑‑­Competent Authority would pass formal order of cancellation of F.I.R. in accordance with law‑‑‑High Court directed that Competent Authority would remain at liberty to process complaint on its own merits and strictly in accordance with law without having been influenced by registration of criminal case and proceedings taken thereunder.

Muhammad Afzal and 2 others v. Muhammad Siddique Girwah, ASJ and 3 others 1992 MLD 311; Muhammad Iqbal, A.S.‑I. v. S.H.O., Police Station New Anarkali, Lahore and 2 others 2000 PCr.LJ 1924 and Saleem Hussain v. The State PLJ 1996 Criminal Cases (Lah.) 916 ref.

Rafique Ahmed Qureshi for Petitioner.

Muhammad Qasim Khan, Asstt. A.‑G. for Respondents.

2002 M L D 1579

[Lahore]

Before Raja Muhammad Sabir, J

GHULAM YASIN and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.431 of 2001, heard on 16th May, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/324/452/148/149‑‑‑Appreciation of evidence‑‑‑Prosecution suppressed injuries on person of accused persons who were admitted in same hospital on the same day when deceased and prosecution witness were under treatment‑‑Specific plea was raised by co‑accused for registration of cross case against complainant party‑‑‑Injuries on the person of accused were suppressed in F.I.R., during investigation as well as trial‑‑‑Evidence against accused consisted of inimical witnesses and true facts had not been brought on record‑‑‑Evidence of interested and inimical witnesses was not corroborated by any independent source and Medical evidence had contradicted prosecution version‑‑‑Sofas which were recovered from accused after 20 days were not blood‑stained‑‑­Comparison of injuries received by accused and complainant had shown that more damage was done to the accused who received 6 injuries and deceased received one lacerated wound‑‑‑Plea raised by accused considered in light of medical evidence and other circumstances of case had clearly shown that accused were injured by the complainant party during occurrence‑‑‑Accused had not exceeded right of self‑defence‑‑­Trial Court against facts on record disbelieved part of statement of accused and relied upon remaining portion and illegally convicted accused in violation of law because statement of accused was to be considered in totality‑‑‑Prosecution, having failed to prove its case against accused beyond reasonable doubt, conviction and sentence awarded by Trial Court were set aside.

Ghulam Qadir v. Esab Khan and others 1991 SCMR 61; Shabbir Ahmad v. The State PLD 1995 SC 343; Shamoon alias Shamma v. The State 1995 SCMR 1377; The State v. Muhammad Hanif and 5 others 1992 SCMR 2047; Faiz and another v. The State 1983 SCMR 67; Inamuddin's case 1975 PCr.LJ 948 and Balmakund's case AIR 1931 All. 1 ref.

Malik Muhammad Saleem for Petitioner.

Tanveer Haider Buzdar for the State.

Date of hearing: 16th May, 2002.

2002 M L D 1596

[Lahore]

Before Khalil‑ur‑Rehman Ramday, J

ABDUL RAZZAQ‑‑‑Petitioner

versus

THE STATE‑‑‑‑Respondent

Criminal Miscellaneous No.4413‑B of 2001, decided on 10th October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑­Accused was found innocent by Investigating Agency‑‑‑No overt act was attributed to accused during the occurrence‑‑‑Fatal shot on deceased was ascribed to the co‑accused‑‑‑Accused was directed to be released on bail, in circumstances.

Khalid Masood Sandho for Petitioner.

Mirza Abdullah Baig for the State.

2002 M L D 1597

[Lahore]

Before Ijaz Ahmad Chaudhary, j

ASHIQ HUSSAIN ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.5122‑R of 2001, decided on 5th October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Surrender of Illicit Arms Ordinance (XXI of 1991), S.7‑‑­Bail, grant of ‑‑‑Allegation against accused that a .12 bore gun was recovered from him, did not fall within prohibitory clause of S.497, Cr.P.C.‑‑‑Involvement of accused prima facie was doubtful as only police witnesses had been cited as recovery witnesses without joining any person from the public‑‑‑Accused having succeeded in making out case for bail, he was admitted to bail.

Khalid Ikram Khatana and Rehmatullah Tahir for Petitioner.

Imtiaz Ahmad Chaudhry for the State.

2002 M L D 1600

[Lahore]

Before Khawaja Muhammad Sharif, J

MAMMAND and others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 5033 ‑B of 2001, decided on 2nd October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(1)‑‑‑Penal Code (XLV of 1860), Ss.302/148/149‑‑‑Bail, grant of ‑‑‑F.I.R. was promptly lodged‑‑‑Accused persons caught hold the daughter of deceased, but on her hue and cry they left her, but gave Sota blows and kicks to deceased and other prosecution witnesses who came there to rescue the daughter of deceased‑‑‑Specific roles were attributed to accused persons and statutory period had not lapsed‑‑‑Injuries were on lower part of abdomen of deceased‑‑‑Not only the deceased met his death, but daughter of deceased, complainant and other prosecution witnesses also received injuries‑‑‑Offence against accused fell within prohibitory clause of S.497(1), Cr.P.C.‑‑‑No ground for granting bail to accused having been made out, bail application was dismissed.

Syed Kazim Bokhari for Petitioners.

Najam‑ul‑Hassan Gill for the State.

2002 M L D 1606

[Lahore]

Before Ijaz Ahmed Chaudhary, J

ZAFAR IQBAL‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.5229‑B of 2001, decided on 9th October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑­Further inquiry‑‑‑Complainant had stated earlier in F.I.R. that accused armed with gun fired at deceased and caused him serious injury, but in supplementary statement he had stated that in fact co‑accused had fired at deceased who received injury and not the accused‑‑‑As to which one of the two statements of complainant was correct could be seen at time of trial‑‑‑Accused had been found innocent in investigation‑‑‑Case against accused fell under S.497(2), Cr.P.C. as involvement of accused had become doubtful‑‑‑Accused was admitted to bail.

Ch. Arshad Mahmood for Petitioner.

Ashfaq Ahmad Chaudhry for the State.

2002 M L D 1618

[Lahore]

Before Sheikh Abdur Razzaq and Bashir A. Mujahid, JJ

GHULAM NABI‑‑‑Petitioner

versus

THE STATE‑‑‑.Respondent

Criminal Miscellaneous No.4953‑B of 2001, decided on 1st October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.458/395‑‑‑Bail, grant of‑‑­Further inquiry‑‑‑Initially none was named in the F.I.R. and it was on basis of supplementary statement of complainant that five persons including the accused were nominated in F.I.R. after about one and' a half months of the occurrence‑‑‑Accused was in jail since his arrest, but no charge had been framed‑‑‑Nothing was on record to show that accused stood involved in any other case‑‑‑Case of accused requiring further inquiry, he was admitted to bail.

Abdullah alias Mannan v. The State 2000 MLD 1608 and Haji Kamal Hussain v. Zulfiqar Ali and others 1997 SCMR 970 ref.

Ali Asghar Ch. for Petitioner.

Muhammad Zubair Khalid Chaudhry for the Complainant.

Siddique Khalid for the State.

2002 M L D 1628

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD WAIZ KHAN alias AWAIS KHAN‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.5076‑B of 2001, decided on 3rd October, 2001. .

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Accused was not named in F.I.R., and his arrest was shown subsequently‑‑‑Nothing had been received from the possession of accused despite he remained on physical remand with police for considerable period‑‑­Involvement of accused being matter of further inquiry, he was admitted to bail.

Syed Manzoor Hussain Gillani for the Petitioner.

Sh. Asghar Ali for the State.

2002 M L D 1633

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeemullah Khan Sherwani, JJ

MUHAMMAD ILYAS alias KAKA‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 140 of 2000, decided on 8th February, 2001.

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

‑‑‑‑S.13‑‑‑Appreciation of evidence‑‑‑Only accused had the knowledge as to where he had concealed his weapon and he upon interrogation had shown his willingness to lead to its recovery‑‑‑Weapon was got recovered through exclusive knowledge of accused‑‑‑Weapon recovered on pointation of accused was costly one‑‑‑Police had no enmity with accused to book him in a false case through a false recovery‑‑‑Witnesses had no adverse interest as against the accused‑‑‑Nothing was to disbelieve witnesses who appeared to be truthful witnesses‑‑‑Appeal against judgment of Trial Court whereby accused was convicted and sentenced, was dismissed, in circumstances.

S.M. Tayyib for Appellant.

Mian Liaqat Ali for the State.

Muhammad Shahid Buttar for the Complainant

Date of hearing: 8th February, 2001.

2002 M L D 1638

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeemullah Khan Sherwani, JJ

MUHAMMAD ILYAS alias KAKA‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 139 of 230, heard on 8th February, 2001.

Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑‑Ss. 324/337‑B/337‑F(iii)‑‑‑Appreciation of evidence‑‑‑Sentence, reduction in‑‑‑Both complainant and injured prosecution witnesses had whole‑heartedly supported prosecution version and had made no material omission or mistakes‑‑‑Occurrence being day time, there was no question of mistaken identity regarding the accused‑‑‑Ocular evidence furnished by complainant and injured prosecution witness, had, left no doubt about participation of accused in crime imputed to him‑‑‑Witnesses being wholy reliable, their evidence by all means was sufficient for conviction of accused‑‑‑Injury of a very serious nature at abdominal region of injured witness, had established his presence at the spot and he had himself appeared in Court to narrate story of his suffering at the hands of accused‑‑‑Injured prosecution witness had no reason to throw false blame on accused and he had not told a fictitious tale of occurrence‑‑Evidence of both complainant and injured prosecution witness who were brothers, was reliable‑Motive had been sufficiently explained by both complainant and injured prosecution witness in their statements‑‑‑Mere fact that empties could not be secured from the spot and bullet was not taken into possession by Investigating Officer, would not advance cause of defence because injuries had been definitely caused by discharge of a fire‑arm‑‑‑Trial Court having appreciated evidence strictly in accordance with cardinal principles regarding appreciation of evidence in its true perspective, conclusion arrived at by Trial Court in respect of conviction could not be interfered with, but accused having been awarded maximum punishment which appeared to be severe, same was reduced‑‑‑Sentence of rigorous imprisonment for ten years was reduced for seven years.

S.M. Tayyib for Appellant.

Mian Liaqat Ali for the State.

Muhammad Shahid Buttar for the Complainant.

Date of hearing: 8th February, 2001.

2002 M L D 1644

[Lahore]

Before Ch. Ijaz Ahmad and Syed Sakhi Hussain Bukhari, JJ

Messrs SULAMIC CORPORATION through Partner M. Sultan Khan and another‑‑‑Appellants

versus

UNITED BANK LIMITED‑‑‑Respondent

Regular First Appeal No.247 of 1993, heard on 17th April, 2002.

(a) Pleadings‑‑‑

‑‑‑‑ Parties are bound by their pleadings.

(b) Administration of justice‑‑‑

‑‑‑‑ Nobody should be allowed to get benefit of his own misdeeds.

(c) Appeal (civil)‑‑‑

Raising fresh plea at appellate stage not allowed.

The Lahore Central Cooperative Bank Ltd. v. Messrs Haji Allah Dad Fida Hussain Merchants 1987 CLC 1435; Messrs Master Sons v. Messrs Ebrahim Enterprises 1988 CLC 1381; Pakistan v. Habib Insurance Company 1991 CLC 1270; John E. Brownle's case AIR 1940 PC 219 and Ashfaq ur Rehman's case PLD 1971 SC 766 ref.

(d) Administration of justice‑‑‑

‑‑‑‑Each and very case is to be decided on its own peculiar circumstances.

Azmat Saeed for Appellants.

Mian Abdul Rashid for Respondent.

Date of hearing: 17th April, 2002.

2002 M L D 1651

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD AMIN and 2 others‑‑‑Petitioners

versus

Mst. SANTO alias GAMAN and another‑‑‑Respondents

Criminal Revision Application Na.894 of 2000, heard on 27th November, 2001.

Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S.54‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Sale of land‑‑‑Suit for declaration‑‑‑Plaintiff who was owner of suit land had challenged sale of land in favour of defendants made by her husband on basis of general power of attorney allegedly executed by her in his favour‑‑‑Plaintiff had alleged that at the time of execution of general power of attorney in favour of her husband, she was minor being only 10/12 years old and that she was under undue influence of her husband at that time‑‑‑Power of attorney according to plaintiff was invalid and sale of land by her husband on its basis did not confer any title on defendants/vendees of land‑‑‑Validity‑‑‑Even if accepted, as contended by plaintiff that she attained majority about two and a half years after execution and registration of general power of attorney in favour of her husband, she should have sought cancellation of the same if it was her desire that her husband should not have power to deal with her land‑‑‑Sale‑deed in favour of defendants/vendees was executed by husband of plaintiff on basis of general power of attorney after about six years from her attaining majority at the time when she was residing with him‑‑‑Plaintiff did not seek cancellation of general power of attorney and thereby enabled third parties/defendants to deal with her husband on basis of said power of attorney‑‑‑Plaintiff, in circumstances, must assume responsibility for unchallenged acts of her attorney‑husband, particularly when such acts were supported by her own conduct‑‑‑Defendants/vendees as bona fide purchasers of suit land for valuable consideration without notice of any defect in authority vesting in husband of plaintiff pursuant to power of attorney could not be deprived of their rights in suit land‑‑‑Plaintiff could find a cause of action against her husband for his acts and undue influence allegedly exercised by him over her but she could not avoid sale made in favour of vendees‑‑‑Judgment and decree passed by Appellate. Court reversing decision of Trial Court was set aside in revision by High Court and judgment and decree passed by Trial Court were restored.

Fida Muhammad v. Pir Muhammad Khan PLD 1985 SC 341 and Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811 ref.

Malik Muhammad Asbah for Petitioners

Toqir Ahmad Khan for Respondents

Date of hearing: 27th November, 2001.

2002 M L D 1658

[Lahore]

Before Karamat Nazir Bhandari, Ijaz Ahmad Chaudhary and Mian Saqib Nisar, JJ

NAUBAHAR BOTTLING CO LTD‑‑‑Petitioner

versus

CUSTOMS, EXCISE AND SALES TAX APPELLATE TRIBUNAL and 2 others‑‑‑Respondents

Review‑ Application No. l‑L of 1999 in Custom Appeal No.55 of 1998, decided on 15th April, 2002.

Customs Act (IV of 1969)‑‑‑

‑‑‑‑S.196(I) [as added by Finance Act (V of 1989)]‑‑‑Civil Procedure Code (V of 1908), S.114 &. O. XLVII, R.1‑‑‑Order passed by High Court in appeal‑‑‑Review petition‑‑‑High Court while setting aside order of Tribunal being without jurisdiction had observed in its order dated 14‑4‑1999 that revision filed by appellant would be deemed pending and decided by Competent Authority in accordance with law‑‑­Section 196(1) was added in Customs Act, 1969 through Finance Act, 1989, which was implemented w.e.f. 30‑3‑1995, whereby revisions pending with Federal Government stood transferred to Tribunal, which was competent to decide them‑‑‑Such statutory provisions could not be cited before High Court due to oversight‑‑‑High Court accepted review petition and recalled its order dated 14-4‑1999 by observing that appeals would be deemed to be pending and listed before appropriate Bench of High Court.

Aftab Ahmed Khan for Petitioner.

Asad Manzoor Butt and K.M. Virk for Respondent No.3

Date of hearing: 15th April, 2002.

2002 M L D 1668

[Lahore]

Before Muhammad Sair Ali, J

SAJJAD AHMAD and another‑‑‑Appellants

versus

GHULAM HAIDER ‑‑‑Respondent

Regular Second Appeal No. 13 of 1995, heard on 15th November, 2001.

Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S.13‑‑‑Civil Procedure Code (V of 1908), O. VII, R.11‑‑Suit for pre­emption ‑‑‑Making of Talbs‑‑‑Rejection of plaint‑‑‑Suit was filed by plaintiffs through their attorney, but power of attorney made by plaintiffs in favour of their attorney contained no authority to make demands or Talbs for and on behalf of the plaintiffs‑‑‑Plaintiff could not plead, show or particularize in plaint that demands/Talbs were properly exercised and made by them to entitle them to file suit for pre‑emption ‑‑‑In absence of such Talbs right of plaintiffs to pre‑empt sale stood extinguished‑‑‑Plaint not disclosing a triable cause of action, was rightly rejected by Court‑‑‑Presuming that act of incompetent attorney to file a suit on behalf of principal could be .rectified through subsequent ratification by principal/plaintiff, yet act of making Talbs prior to a suit for pre‑emption, being strictly time tied, could not be rectified through subsequent ratification ‑‑‑Talb‑e‑Muwathibat had to be exercised instantaneously upon knowledge of sale to be followed by Talb‑I‑Ishhad within two weeks from date of knowledge of Talb‑I‑Muwathibat‑‑Talbas, if not so made, would destroy claim to pre‑empt sale‑‑­Relinquishment so occurring was absolute and could not be undone by any act of resurrection, rectification or ratification‑‑‑Right of pre­emption could only be exercised by a person after making Talbs in manner and order prescribed in S.13 of Punjab Pre‑emption Act, 1991‑‑­Prior to institution of a suit for pre‑emption, plaintiff claiming right of pre‑emption must make demands, which was mandatory otherwise he would have no right to pre‑empt a sale or to file suit for pre­emption.

1991 MLD 364; 1987 CLC 1366; 1987 CLC 1366 and PLD 1990 Lah. 208 ref.

Miss Sadia Malik for Appellants.

Saleem Akram for Respondent.

Date of hearing: 15th November, 2001.

2002 M L D 1695

[Lahore]

Before Abdul Shakoor Paracha, J

SECRETARY/CHIEF PURCHASE OFFICER, L & DD DEPARTMENT GOVERNMENT.OF PUNJAB, LAHORE and 3 others‑‑‑Petitioners

versus

Messrs NATIONAL AGENCIES and 2 others‑‑‑Respondents

Civil Revision No.2141 of 200f, heard on 5th March, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss.42 & 54‑‑‑Civil Procedure Code (V of 1908), Ss.79, 80, O.VI, Rr.14, 15, O.XIV, R.1 & O.XXVII, R.1‑‑‑Suit for declaration and permanent injunction‑‑‑Maintainability‑‑‑Tender in question was floated by defendant on behalf of Government of Punjab and not in his personal capacity, but Province of Punjab was not impleaded in the suit as necessary party and suit was filed without issuing notice under S.80, C.P.C.‑‑‑Written statement filed by defendants had shown that it was simply a parawise comments by defendant‑Authorities without any legal objection and verification as required under O.VI, R.15, C.P.C.‑‑‑No proper issues from divergent pleadings of parties were framed by the Trial Court under O.XIV, R.1, C.P.C.‑‑‑Suit having been filed on basis of contract between parties, Trial Court as well as Appellate Court were under legal obligation to see that suit under S.42, Specific Relief Act, 1877, arising out of contract was maintainable or not‑‑‑Trial Court as well as Appellate Court having failed to advert to the provisions of Ss.79, 80, O.VI, Rr.14, 15, O.XIV, R.1, O.XXVII, R.1, C.P.C. and S.42 of Specific Relief Act, 1877, concurrent judgment and' decree passed by said Courts were set aside by High Court in exercise of its revisional jurisdiction and case was remanded for decision afresh in accordance with law.

M. Maqbool Chaudhary for Petitioners.

Riaz Karim Qureshi for Respondents.

Date of hearing: 5th March, 2002.

2002 M L D 1698

[Lahore]

Before Sheikh Abdur Razzaq and Bashir A. Mujahid, JJ

THE STATE‑‑‑Petitioner

versus

SAFDAR and others‑‑‑Respondents

Criminal Appeal No.712 of 1997, heard on 18th October, 2001.

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

‑‑‑‑Ss.417 & 161‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Appeal against acquittal‑‑‑Delay in registering case against accused had not satisfactorily been explained, and it was proved that F.I.R. was lodged after consultation and deliberation‑‑‑Occurrence was not witnessed by complainant and presence of prosecution witness at spot was also doubtful‑‑‑Conduct of prosecution witness was unnatural and his statement was not confidence‑inspiring‑‑‑Complainant had argued that statement of deceased recorded under S.161, Cr.P.C. in accordance with law itself was sufficient to record conviction against accused by treating it as dying declaration even without any corroboration from independent source‑‑‑No cavil with the legal proposition, but, in the present case on comparison it looked nothing more than a verbatim copy of F.I.R. and Investigating Officer did not ask Illaqa Magistrate to record statement of injured witness‑‑‑Reasons recorded by Trial Court for acquitting accused were supported from record and appraisal of evidence made by Trial Court was according to standard and norms laid down by superior Courts‑‑‑In absence of perversity of reasons, illegality in judgment of Trial Court of misreading of evidence leading to miscarriage of justice, judgment of Trial Court acquitting accused, could not be interfered with in exercise of jurisdiction under S.417(2), Cr.P.C.

Niamat Ali v. State 1981 SCMR (sic) and Muhammad Akbar and 2 others v. State PLD 1981 SC 923 ref.

(b) Qanun‑e‑Shahadat (10 of 984)‑‑‑

---Art.46‑‑‑Police Rules, 1934, R.25.21‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Dying declaration, recording of‑‑‑Basing conviction on dying declaration‑‑‑Dying declaration, whenever possible should be recorded by Magistrate and if Magistrate was not available. injured should be examined by a Medical Officer to ascertain fact that he was fit to make statement‑‑‑If Magistrate could not be obtained and a Gazetted Police Officer was also not present, then statement should be recorded in presence of two or more reliable witnesses unconnected with parties to case‑‑‑If presence of two independent witnesses was not possible then it should be recorded in presence of two or more police officials‑‑­Conviction, could be based on dying declaration alone, provided it was true and free from prompting from outside‑‑‑To accept such statement, without considering surrounding .circumstances of the case, was not safe administration of justice to convict accused merely on basis of so‑called dying declaration.

Ghulam Zohra and others v. Malik Muhammad Sadiq and another PLD 1997 SC 449 ref.

Ghulam Muhammad Sajrab for the State.

Syed Ehsan Qadir Shah for Respondent.

Abdur Rasheed Manan for A.‑G.

Date of hearing: 18th October, 2001.

2002 M L D 1705

[Lahore]

Before Bashir A. Mujahid, J

M.A. ANWAR ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Miscellaneous No.3951‑B of 2001, decided on 3rd August, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.420/467/468/471‑‑‑Bail, grant of‑‑‑Accused remained on physical remand for about 10 days, but alleged misappropriated amount had not been recovered from his possession‑‑­Offence against accused did not fall under prohibitory clause of S.497, Cr.P.C. and S.467, P.P.C. prima facie was not attracted to the case of accused‑‑‑Accused was admitted to bail, in circumstances.

Muhammad Sohail Dar for Petitioner.

Muhammad Ashraf Khan for the Complainant.

Muhammad Azam for the State.

2002 M L D 1708

[Lahore]

Before Bashir A. Mujahid, JJ

MUHAMMAD YAQOOB‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.644 of 1999, heard on 19th October, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/449‑‑‑Appreciation of evidence‑‑‑Presence of complainant who nominated accused in promptly recorded complaint had fully been proved‑‑‑Statements of both eye‑witnesses was consistent and no material discrepancy had been brought on record to discard their testimony ‑‑‑Eye­witnesses had no previous enmity for false implication of accused‑‑­Defence version as narrated by defence witnesses was not confidence­inspiring‑‑‑Defence witnesses had never joined investigation nor got their statements recorded which had proved that they were not eye‑witnesses of the occurrence‑‑‑Deceased was alone living with his family in the village and accused also belonged to same village whereas complainant was resident of other city‑‑‑Defence witnesses who were inhabitants of same village, in circumstances, had come forward with afterthought story to help accused‑‑‑Motive though had not been proved, but absence or weakness of motive was immaterial in circumstances of case‑‑­Nothing had been brought on record to prove that accused had been implicated due to previous enmity between deceased and complainant‑‑­No reason existed as to why complainant would implicate accused by letting off real culprit‑‑‑Prosecution case having been established against accused beyond any shadow of doubt by direct evidence of eye­witnesses which was corroborated by medical evidence, conviction of accused who was real culprit, by Trial Court could not be interfered with.

Mansoor Alamgir Qazi for Appellant

Tasneem Amin for the State

Date of hearing 19th October, 2001.

2002 M L D 1713

[Lahore]

Before Nasim Sikandar and Muhammad Saeed Akhtar, JJ

MUHAMMAD AKRAM‑‑‑Appellant

versus

ASSISTANT DIRECTOR, INTELLIGENCE AND INVESTIGATION (CUSTOMS, EXCISE AND SALES TAX), FAISALABAD and 2 others‑‑‑Respondents

Custom Appeal No. 152 of 2002, decided on 11th April, 2002.

Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 194‑B & 196‑‑‑Disposal of appeal by Tribunal not listed for hearing‑‑‑Validity‑‑‑Such disposal was not warranted by any provision of Customs Act, 1969 or any substantive or procedural law in force in Pakistan‑‑‑Impugned order clearly militated against law‑‑‑High Court declared the appeal filed by appellant to be still pending before the Tribunal, which would be heard after due fixation and notice to parties.

Muhammad Akram Nizami for Appellant.

A. Karim Malik for Respondents.

2002 M L D 1716

[Lahore]

Before Mrs. Nasira Iqbal, J

SHAMIM AKHTAR‑‑‑Petitioner

versus

MUHAMMAD TUFAIL‑‑‑Respondent

Writ Petition No.5483 of 1993, decided on 5th November, 2001.

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

‑‑‑‑Art. 199‑ ‑Constitutional petition‑‑‑Dismissal for non‑prosecution‑‑Filing of fresh Constitutional petition‑‑‑Lathes‑‑‑When first Constitutional petition was not decided on merits, but was dismissed for non‑prosecution, it would not constitute a bar for filing of fresh Constitutional petition ‑‑‑Second Constitutional petition, filed as soon as petitioner came to know that first Constitutional petition was dismissed for non‑prosecution, would not be barred by laches.

Mst. Rabia Bibi and others v. Fateh Muhammad 1994 CLC 1151; Qazi Zaheer‑ud‑Din v. Addl. D. Judge, Lahore 1995 MLD 1241 and Dr. M.A. Haseeb Khan and others v. Sikandar Shaheen and others PLD 1980 SC 139 ref.

(b) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S.9‑‑‑Maintenance, grant of‑‑‑Jurisdiction of Chairman, Arbitration Council‑‑‑Chairman, Arbitration Council had jurisdiction to decide application of ex‑wife for grant of maintenance for period during which marriage subsisted‑‑‑Findings of Collector that Chairman Arbitration Council could not entertain application for maintenance by a wife who had already been divorced, were not valid‑‑‑Past maintenance could be awarded by Arbitration Council for a period up to six years and the wife who had been divorced by husband, was also entitled to claim maintenance through application to Chairman, Arbitration Council‑‑­Husband, in the present case had not been able to, show that wife was divorced at the time when she filed application for maintenance‑‑‑Order of Collector to the extent that Arbitration Council had no jurisdiction to award maintenance to wife, was illegal‑‑‑Chairman, Arbitration Council was competent to, award different quantum of maintenance for different periods.

Ghulam Jilani v. Deputy Commissioner/Collector and others1991 CLC 1813; Muhammad Najeeb v. Mst. Tallat Shahhaz 1989 SCMR 119; Muhammad Nawaz v. Khurshid Begum and others PLD 1972 SC 302; Muhammad Ashraf v. Bushra Shaheen and others PLD 1995 Lah. 44; Ahmed Riaz v. Mst. Qaisera Minhas and others .199.4 CLC 2403 and Muhammad Nawaz v. Khurshid Begum and others PLD 1972 SC 302 ref.

Muhammad Hanif Akhtar for Petitioner.

Ch. Bashir Ahmed Chaddar for Respondent

Date of hearing: 18th October, 2001.

2002 M L D 1724

[Lahore]

Before Dr. Munir Ahmad Mughal, J

GHULAM RASOOL‑‑‑Petitioner

versus

MUHAMMAD HABIB ‑‑‑Respondent

Writ Petition No. 13056 and Civil Revision No. 1364 of 2000, heard on 20th December, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), S.12(2)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for declaration decreed‑‑‑Decree was challenged on ground of fraud and misrepresentation‑‑‑Mutation in respect of land was sanctioned in favour of respondent on death of original owner of land in dispute being collateral of deceased‑‑‑Mutation was challenged by petitioner through a suit for declaration claiming to be nearer to deceased and that defendant/respondent in whose favour mutation was sanctioned was remote and had no title to land in dispute‑‑‑Suit having been decreed, application under S.12(2), C.P.C. was filed by judgment‑debtor alleging that decree had been procured by decree‑holder by fraud and misrepresentation‑‑‑Application had been accepted by Trial Court as well as Appellate Court and concurrent judgment was challenged in Constitutional petition‑‑‑Validity‑‑‑Both Courts below in accepting application under S.12(2), C.P.C. had committed gross procedural irregularity which could not be rectified and whole proceedings were illegal and nullity in eye of law‑‑‑Judgments of both Courts were set aside and case was remanded to Trial Court to decide afresh strictly in accordance with law.

Mst. Razia Begum v. Sardar Muhammad Ishaq, Advocate 1990 MLD 144 ref.

S.M. Tayyab for Petitioner.

Sh. Asghar Ali for Respondent.

Date of hearing: 20th December, 2000.

2002 M L D 1730

[Lahore]

Before Syed Jamshed Ali, J

AHMAD DIN and 4 others‑‑‑Petitioners

versus

FAQIR SAIN alias MUHAMMAD SAIN and another‑‑‑Respondents

Civil Revision No.2118 of 1994, heard on 7th November, 2001.

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

‑‑‑‑S.115‑‑‑Revisional jurisdiction‑‑‑ Interference in finding of fact‑‑­When permissible‑‑‑ Finding of fact arrived at by ignoring material evidence or misreading material evidence, was liable to be interfered with by High Court in exercise of its revisional jurisdiction.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts.117 & 118‑‑‑Transfer of Property Act (IV of 1882), S.54‑‑‑Sale of land challenged‑‑‑Validity‑‑‑Burden of proof‑‑‑When both parties would lead evidence, question of burden of proof would become irrelevant‑‑‑Sale was challenged by plaintiff alleging that defendants had produced some other person instead of plaintiff/alleged vendor and got attested sale‑deed in their favour fraudulently‑‑‑Defendants/alleged vendees were to establish a valid sale in their favour because they were the beneficiaries thereunder.

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

‑‑‑‑O.XIV, R.1‑‑‑Framing of issues‑‑‑Delay of parties and Court‑‑­Though primarily it was duty of Court to frame proper issues, but parties were also not absolved to claim proper issues at proper time.

Taqi Ahmad Khan for Petitioners.

Malik Amjad Pervaiz for Respondents.

Date of hearing: 7th April, 2001.

2002 M L D 1748

[Lahore]

Before Raja Muhammad Sabir, J

ZAWAR HUSSAIN and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.493‑B of 1999, decided on 12th March, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16‑‑‑Pre‑arrest bail, grant of‑‑‑Accused without first approaching Court of Session which was Court of original jurisdiction, tiled application for pre‑arrest bail before the High Court‑‑‑In absence of any reasonable explanation for not approaching Court of original' jurisdiction for grant of pre‑arrest bail, High Court dismissed application filed directly before it.

Malik Muhammad' Ali and Syed Asif Raza Gillani for Petitioners.

Khadim Nadeem Malik, Addl. A: G. for the State.

Malik Muhammad Shabbir Langrial for the Complainant.

2002 M L D 1758

[Lahore]

Before Mrs. Fakhar‑un-Nisa Khokhar, J

TAHIR FAROOQ‑-‑Petitioner

versus

JUDGE FAMILY COURT and others‑Respondents

Writ Petition No.11163 of 2002, decided on 2nd July, 2002.

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

‑‑‑‑S.13‑‑‑West Pakistan Land Revenue. Act (XV)I of 1.9(7), 5.80‑‑­Executioii of decree‑‑‑Family Court, jurisdiction of‑‑‑Scope‑‑‑Contention of the petitioner was 'that Family Court after assessing the decretal amount as' arrears of land revenue could not act as‑.a Collector‑‑­Validity‑‑West Pakistan Family Courts Act, 1964, being special law and Family Courts being Special Tribunals, the legislation has intended to circumvent the litigation between the parties as much, as possible‑‑­Section 13 of West Pakistan Family Courts Act vests Family Court with powers of executing Court for enforcement of decrees‑‑‑If judgment­ debtor pays money or any property is delivered to decree‑holder, Family Court under S.13(2) of West Pakistan Family. Courts Act, 1964, enters the fact of payment of delivery of property in the register, but if the decretal amount is not paid within the time specified by‑the, Court, then the Family Court, has vast powers to assess, the decretal amount recoverable as arrears of land revenue and direct the same to be recovered under S.80 onward of West Pakistan. Land Revenue Act, 1967, by himself or may forward the warrants to the Collector to recover the same as arrears of land revenue‑‑‑Family Court, therefore, could act as Collector.

Lal Muhammad and another v. Mst. Niaz Parwara PLD 1970 Pesh. 52 and Nasir Khan.v. Tahira Rashida 1986 CLC 2.381 ref.

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

‑‑‑‑S.13(3)‑‑‑Words "be recoverable as 'arrears of land `revenue and on recovery shall be paid to the decree‑holder" in ‑S.13; West .Pakistan Family Courts Act, 1964‑‑‑Effect‑‑-Words so mentioned in S.13(3) of West Pakistan Family Courts Act, 1964 make the Court as Executing Court.

Muhammad Ramzan v. Mst. Afshan Kanwal and others 1991 CLC 1823 ref.

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

‑‑‑‑S.13(4)‑‑‑Execution of decree‑‑‑ Family Court and its powers‑‑­of procedure prescribed for execution‑‑‑Decree is to be executed under S.13(4) of West Pakistan Family Courts Act, 1964, by the Court who has passed that decree‑‑‑Executing Court is the family Court; which can direct the payment of money, assess the decretal amount to be paid as arrears of land revenue and adopt coercive measures as prescribed under, the provisions of S.80 and onward of West Pakistan Land Revenue Act, 1967, stop the proceedings, give time to the judgment‑debtor to pa‑and satisfy the decretal amount, and make the decree to be paid in such instalments as it deems fit‑‑‑Family Court as executing Court has vast powers.

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

‑‑‑‑S.13‑‑‑Civil Procedure Code (V of 1908), S.55‑‑‑Execution of decree‑‑‑Arrest and detention of judgment‑debtor‑‑‑Powers of Family Court‑‑‑Scope‑‑‑Family Court is a Civil Court and the decree of maintenance being a money decree, arrest and detention as prescribed under S.55, C.P.C. can be ordered by the Family Court.

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

‑‑‑‑S.13(4)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑ Execution of decree passed by Family Court‑‑‑Detention of judgment‑debtor in civil prison for one year‑‑‑Family Court sent the petitioner/judgment‑debtor to civil prison for one year‑‑‑On account of non‑payment of decretal amount‑‑‑Validity‑‑‑Family Court being Executing Court was empowered under S.13 of West Pakistan Family Courts Act, 1964 to order for recovery of decretal amount otherwise than as arrears of land revenue‑‑‑Petitioner could be detained for one year and the orders being passed within the ambit of S.13 of the West Pakistan Family Courts Act, 1964, were not open to challenge in the Constitutional jurisdiction‑‑‑Petition was dismissed in limine.

1986 CLC 2381; Muhammad Ramzan v. Mst. Afshan Kanwal and others 1991 CLC 1823; Lal Muhammad and another v. Mst. Niaz Parwara PLD 1970 Pesh. 52; Nasir Khan v. Tahira Rashida 1986 CLC 2381 and Qurban Ali Khan v. IV Civil and Family Judge (Central), Karachi and another PLD 1993 Kar. 159. ref.

Mirza Hafeez ur Rehman for Petitioner

2002 M L D 1809

[Lahore]

Before Zafar Pasha Chaudhary, J

KHALID DAD alias DAD‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Appeal No.713 of 1998, decided on 4th September, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/324‑‑‑Appreciation of evidence‑‑‑Prosecution had itself stated that co‑accused who also died in the occurrence was main accused who had motive to kill deceased as brother of said co‑accused had earlier been killed by the complainant party‑‑‑Prosecution witnesses' consistent stand was that the deceased co‑accused fired a shot which proved fatal‑‑­Prosecution, however, claimed that gun carried by co‑accused fell down after he was injured by receiving a sickle blow on his neck from the prosecution side and was picked up by accused who killed the deceased after firing shot from that gun‑‑‑Said narration of incident on the part of prosecution did not appeal to reason and appeared to be inconsistent and not plausible‑‑‑Narration of prosecution was also contradicted by site plan which bore notes of Draftsman Investigating Officer‑‑­According to said notes co‑accused had fired at deceased which was contrary to what had been stated by eye‑witnesses‑‑Such contradiction had created a dent in the prosecution. case‑‑‑Prosecution had not been able to discharge its onus beyond doubt as its version suffered from material discrepancies and inconsistencies and it would be unsafe to uphold and maintain conviction and sentence of accused recorded by Trial Court‑‑‑Conviction and sentence of .accused were set aside and he was acquitted of charge against him.

Muhammad Ahmad and another v. The State and others 1997 SCMR 89 ref.

Abdul Wahid Ch. assisted by Asif Ranjha for Appellant.

Ishfaq Ahmed Ch. for the State.

Saleem Shahnazi for the Complainant.

Date of hearing: 4th September, 2001.

2002 M L D 1821

[Lahore]

Before Farrukh Lateef, J

SARDAR ALI and others‑‑‑Petitioners

versus

BASHIR AHMED and others‑‑‑Respondents

Civil Revision No.255‑D of 2002, decided on 30th April, 2002.

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

‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), O. IX, R.13 & S.115‑‑‑Suit for declaration‑‑‑ Suit decreed on compromise‑‑‑Setting aside of the judgment and decree‑‑‑Some of the defendants were already proceeded against ex parte and suit was decreed on basis of compromise arrived at between the parties and defendants had stated before Court that they would have no objection if suit .was decreed in favour of plaintiffs‑‑‑After more than six years an application was moved by defendants/ petitioners under O.IX, R.13, C.P.C. alleging that they were never served and that Advocate who stated about compromise between the parties was never' engaged by them and that the decree against them was obtained by plaintiffs in collusion with other defendants‑‑‑Petition filed by defendants/petitioners was concurrently dismissed by the Courts below‑‑‑Concurrent order and judgment of Courts below were based on proper appreciation of evidence on record and were entirely reasonable and petitioners had‑ failed to point out as to which law was misinterpreted or misapplied by Courts below in their orders or which piece of evidence was overlooked or was misread‑‑‑Section 115, C.P.C. was directed against irregular , exercise, non‑exercise or illegal assumption' of jurisdiction and not against conclusion of fact or law not involving question of jurisdiction‑‑‑Concurrent orders of Courts below did not suffer from any jurisdictional error and contentions raised by petitioners were devoid of any force‑‑­Revision against concurrent judgment of Courts below, was dismissed.

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

‑‑‑‑S.115‑‑‑Revisional jurisdiction, exercise of‑‑‑Section 115, C.P.C. was directed against irregular exercise, non‑exercise by illegal assumption of jurisdiction and not against conclusion of fact or law not involving question of jurisdiction.

Malik Muhammad L,atif Khokhar for Petitioners.

Miss Saiqa Bhatti for Respondents Nos.1 and 2.

Date of hearing: 24th April, 2002.

2002 M L D 1833

[Lahore]

Before Farrukh Lateef, J

MUHAMMAD IDREES ‑‑‑ Petitioner

versus

PAKISTAN RAILWAYS and others‑‑‑Respondents

Civil Revision No.99 of 2002, decided on 11th June, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.2 & 3‑‑­Suit for declaration‑‑‑Interim injunction, grant of‑‑‑Plaintiff/petitioner serving as Railway Guard in Grade II in Pakistan Railways having been removed from service, he filed appeal before Service Tribunal‑‑‑Plaintiff filed suit to the effect that he was entitled to retain residential quarter provided to him by Railway till decision of his appeal against removal from service pending before Service Tribunal ‑‑‑Alongwith suit a stay application was also filed by plaintiff for issuance of interim injunction restraining defendant Railway from interfering with his possession over the house till final disposal of his suit‑‑‑Courts below concurrently dismissed the stay application‑‑‑Plaintiff had urged that vide Notification issued by Railways dismissed employees could retain accommodation on payment of normal rent till disposal of their service appeal or period of six months and in case of further retention commercial rent could be charged from them‑‑‑Notification related to officers dismissed from service and did not apply to employees of Railways who did‑not fall in the category of officers‑‑‑Plaintiff/petitioner being Railway Guard in Grade‑II not falling in category of officers, said Notification was not applicable to his case and he could not claim retention of quarter on payment of commercial rent on basis of Notification‑‑­Period of holding over according to the notification would be treated as unauthorized and commercial rent would be charged for that period‑‑‑Provision of ' charging commercial rent was merely a penal provision which did not create legal right in favour of person holding over on basis of which a declaration or injunction could be issued.

Ch. Muhammad Ilyas for Petitioner.

Rao Muhammad Iqbal for Respondents.

Date of hearing: 11th June, 2002.

2002 M L D 1844

[Lahore]

Before Farrukh Lateef, J

MUHAMMAD HANIF‑‑‑Petitioner

versus

ZULFIQAR ALI ‑‑‑Respondent

Writ Petition No.4926 of 2002, decided on 20th June, 2002.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Powers of High Court in Constitutional jurisdiction were not analogous to those of Appellate Court‑‑‑High Court could strike down an order passed by a subordinate Court as without lawful authority and of no legal effect, but could not substitute its own judgment for that of subordinate Court.

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

‑‑‑‑Ss. 36 & 164‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑ Appointment of Lambardar‑‑‑On death of Lambardar, applications were invited for fresh appointment against post of Lambardar‑‑‑Son of deceased Lambardar alongwith others applied for the post, but District Collector after observing usual formalities appointed petitioner and ignored son of deceased Lambardar and appeal tiled against order of District Collector was dismissed by Executive District Officer‑‑‑Revision filed by son of deceased Lambardar against order of Executive District Officer, was accepted by Member, Board of Revenue and son of deceased Lambardar was appointed at the post of Lambardar‑‑‑Concurrent orders passed by District Collector and Executive District officer did not contain any reason for decision rendered by them for giving preference to petitioner over son of deceased Lambardar‑‑‑Member, Board of Revenue had rightly appointed respondent observing that he being a middle‑aged man and having background of Lambardari was better trained for the job‑‑‑Order competently passed by Member, Board of Revenue in revision, could not be said to be without jurisdiction., in excess of jurisdiction and without lawful authority‑‑‑Constitutional petition against order of Member, Board of Revenue was dismissed, in circumstances.

PLD 1999 SC 484; Ghulam Muhammad v. Sarwar Khan PLD 1962 W.P. (Rev.) 53; Raja Muhammad Aslam v. Raja Muhammad Sarwar and others 2000 SCMR 531; Haji Noorwar Jan v. Senior Member, Board of Revenue, N.W.F.‑P. and 4 others PLD 1991 SC 531; Ghulam Farid v. Ahmad Din 1990 CLC 1983; Abdul Haq v. Hakam Ali PLD 1959 W.P. (Rev.) 8 and Atta Ullah v. Pir Bukhsh PLD 1959 W.P (Rev.) 36 ref.

Ch. Abdul Ghani for Petitioner.

2002 M L D 1847

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD ARSHAD‑‑‑Petitioner

versus

ABDUL REHMAN and 3 others‑‑‑Respondents

Writ Petition No. 19549 and 20574 of 2001, decided on 14th February, 2002.

Punjab Local Government Ordinance (VI of 1979)‑‑‑

‑‑‑‑S.137 & Sched. [as amended by Punjab Local Government (Amendment) Ordinance (VII of 2001)]‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑ Agreement for collection of fee of cattle market‑‑‑Petitioners had alleged that respondent‑Authority had executed agreement with respondent/opposing candidates through negotiations in underhand means, contrary to Rules and that Authority in auctioning of lease in respect of collection of fee of cattle market, had committed irregularities and illegalities in violation of mandatory provisions of law‑‑‑Constitutional petitions were resisted by respondent­/Authority alleging that petitioners had not approached High Court with clean hands and petitions had been filed malafidely‑‑‑Allegation of petitioners was that no auction was held on the dates, whereas contention of Authority was that bidders present in office on relevant dates had agreed and signed public notice which had revealed that auction was held and the petitioners had not participated in auction proceedings‑‑‑Facts had brought case in area of disputed question of fact and High Court had no jurisdiction to resolve disputed question of fact in exercise of its Constitutional jurisdiction‑‑‑Petitioner otherwise being not aggrieved person High Court declined to exercise its discretion in his favour and refused to set aside the impugned proceedings.

Abdul Hameed v. D.C. 1997 CLC 540; Ali Bahadur v. M.C., Arifwala 1999 MLD 142; Jehangir Mughal v. District Council PLD 1998 Lah. 209; Abdul Hameed v. D.C. 1996 CLC 1992; Muhammad Shafiq Khan v. Secretary 1996 CLC 2045; Javed Iqbal Abbasi v. Province of Punjab 1996 SCMR 1433; Muhammad Younas Khan's case 1993 SCMR 618; Rashid A. Khan v. West Pakistan Railway Board PLD 1973 Lah. 73'/; Malik Muhammad Imtiaz v. Cantonment Board NLR 1988 Civil 422; Mohabat Ali v. Abdul Jabbar 1989 ALD 347; Haji Muhammad Ismail v. Government 1987 MLD 2457 and Rasheed Mahmood v. Administrator District Council PLD 1997 Lah. 407 ref.

Dr. M. Mohy‑ud‑Din Qazi for Petitioners.

Farooq Amjad Mir for Respondent No. l

C.M. Latif Rawn for Respondent No.2.

Hasnat Ahmed Khan for Respondents Nos.3 and 4.

2002 M L D 1860

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD ASLAM and 4 others‑‑Petitioners

versus

GHULAM RASOOL and 6 others‑‑‑Respondents

Civil Revision No. 1029 of 1993; heard on 12th February, 2002.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑Ss.10 & 19‑‑‑Agreement of sale of land allotted under 'Tubewell Sinking Scheme "‑‑‑Permission of Collector not sought ‑‑‑Effect‑‑­Agreement of sale in respect of land which was allotted to vendors under "Tubewell Sinking Scheme", was declared void by Courts below holding that agreement was hit by S.19 of Colonization of Government Lands (Punjab) Act, 1912 as permission of Collector which was mandatory was not sought in respect of sale‑‑‑Provisions of S.19 of Colonization of Government Lands (Punjab) Act, 19.12, did not debar vendors to execute agreement to sell with vendees‑‑‑Even otherwise findings of Courts below that permission of Collector was mandatory had no force as per principle laid down by High Court in case reported as 2000 YLR 652.

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

‑‑‑‑Ss.18, 42 & 54‑‑‑Colonization of Government Lands (Punjab) Act (V of 1912), Ss.10 & 19‑‑‑Transfer of Property Act (1V of 1882), S.54‑‑ Civil Procedure Code (V of 1908), S.115‑‑‑Sale of land allotted under 'Tubewell Sinking Scheme'‑‑‑Suit for declaration and permanent injunction ‑‑‑Vendee's rights against vendors with imperfect title‑‑­Revisional jurisdiction, exercise of‑‑‑Vendors who were allottees of land under 'Tubewell Sinking Scheme' executed an agreement to sell said land in favour of vendees/plaintiffs and vendors who had received all consideration, had also delivered possession of land to vendees‑‑Vendees on coming to know that vendors had allegedly planned to alienate suit‑land to someone else, filed suit for declaration and permanent injunction against defendants/vendors, but Courts below concurrently dismissed plaint holding that suit in present form was not competent‑‑‑Appellate Court upheld finding of Trial Court observing that as plaintiffs/vendees had brought suit for perpetual injunction on basis of agreement to sell about property that was still owned by Provincial Government and proprietary rights had not been conferred on defendants/vendors, plaint was rightly rejected‑‑‑Agreement to sell, though would not create any title on property, but it would create right in favour of vendees on basis of such agreement for enforcement of agreement ‑‑‑Vendees were well within their right to compel .vendors for enforcement of agreement‑‑‑Even if the vendors had transferred their land to vendees on basis of agreement, it would only be presumed that vendees had stepped into shoes of vendors who only had promised to do so by way of another document and if vendors would refuse to do so, suit for specific performance was the only remedy left under law as envisaged under S.18 of Specific Relief Act, 1877‑‑‑Judgments of Courts below were set aside and case was remanded with direction that suit for declaration with permanent injunction be treated as suit for specific performance with permission to petitioners/vendees to amend the plaint accordingly.

Mst. Akhtar Begum v. Mian Aziz and others 1985 SCMR 1617; Messrs Al‑Farooq Builders v. Federation of Pakistan 1992 CLC 2131; Syed Shafique Hussain v. Syed Abdul Qasim PLD 1979 Kar. 22; Muhammad Iqbal and others v. Mirza Muhammad Hussain and others PLD 1986 SC 70; Akhtar Ali and others v. Muhammad Hanif and others 1989 SCMR 604; Ghulam Muhammad v. Maula Dad and 6 others 1980 SCMR 314; Sher Muhammad Khan and others v. Ilam Din and others 1994 SCMR 470; Abdul Salam through Legal Heirs and 3 others v. District Collector, Muzaffargarh and 4 others 2001 CLC 1673; Mumtaz Hussain v. Faizullah and others 1999 YLR 981; Allah Dad v. Mehr Khan and 2 others PLD 1992 Lah. 437; Nazar Muhammad and others v. Farid1986 MLD.2074; Mushtaq Hussain and others v. Mukhtar Ahmad 1999 MLD 3384; Daulat Ali v. Legal Heirs of Ahmad Ali PLD 2000 SC 792; Mst. Khann‑ad‑Din and others v. Government of Sindh and others 2000 SCMR 1252; Mst. Ghulam Bibi's case PLD 1985 SC 354; Subtain Fazli's case PLD 1964 SC 337; Ahmad Din's case PLD 1971 SC 762 and Abdul Hameed's case PLD 1962 SC 1 ref.

(c) Administration of justice‑‑‑

‑‑‑‑Duty of Court‑‑‑Principles‑‑‑Judge must wear all law of country on sleeves of his robe‑‑‑Court was empowered to grant such relief as justice of case would demand and for purpose of determining relief asked for, whole of plaint must be looked into so that substance rather than form should be examined.

Zain‑ul‑Abidin for Appellant.

Hafiz Abdur Rehman Ansari for Respondent.

Date of hearing: 12th February, 2002.

2002 M L D 1876

[Lahore]

Before Tanvir Bashir Ansari, J

FAIZ AHMED and others‑‑‑Petitioners

versus

KHAN MUHAMMAD and others‑‑‑Respondents

Civil Revision No.90‑D of 1987, heard on 14th March, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Suit for declaration‑‑‑Original owner of property in dispute who was predecessor‑in‑interest of parties, was survived by his widow and one daughter ‑‑‑Defendants got attested mutation wherein they were shown to be entitled to inheritance of propositus through his daughter‑‑­Plaintiffs filed suit for declaration that they were owners in possession of suit‑land as original owners of land who was governed by custom and not by Islamic Law of inheritance `and that mutation of inheritance in favour of defendants was illegal‑‑ Trial Court relying on copy of Wajib‑ul-Arz, concluded that rule of inheritance in village concerned was based upon custom of 'Pagwand' and decreed suit and Appellate Court concurred with finding of Trial Court‑‑‑Both the Courts misconstrued document of Wajib‑ul-Arz inasmuch as pre‑condition for application of custom to apply was when propositus died issueless ‑‑‑Such practice was adopted only in that event where custom of 'Pagwand' would prevail‑‑‑Evidence produced on record was not sufficient to prove that original owner/propositus had died issueless, whereas it had fully been proved that original owner was survived by his widow and a daughter‑‑­Evidence on record has shown that widow of deceased died about 20 years after death of original owner and his daughter died three years after death of his widow‑‑‑Courts below did not take into consideration such question of fact‑‑‑Suit filed otherwise was time‑barred under Art.120 9f Limitation Act, 1908 having been filed beyond period of six years‑‑‑Concurrent judgment and decree passed by Courts below with material irregularity, were set aside by High Court in exercise of its revisional jurisdiction‑‑‑ Defendants would be entitled to share in estate according to Muslim Law.

A. R. Tayyib for Petitioners.

Choudhary Muhammad Afzal Cheema for Respondents.

Date of hearing: 14th March, 2002.

2002 M L D 1884

[Lahore]

Before Riaz Kayani and Bashir A. Mujahid, JJ

ALI AHMAD and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.643 of 1994 and Murder Reference No. 189 of 1995, decided on 3rd July, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/307/34/ 149‑‑‑Appreciation of evidence‑‑‑Complainant was a natural witness and his testimony regarding occurrence in which deceased persons were killed, inspired confidence, and credibility had to be given to the same‑‑‑Other prosecution witness had a house at a short distance from place of occurrence and he being an .agriculturist by profession his presence at the time of occurrence could not be ruled out‑­‑No specific relationship of said witness had been established with the complainant party‑‑‑Testimony of the witness had shown that his presence at the spot at relevant‑ time could not be doubted and reliance could be placed on the same‑‑‑Other eye‑witness who was father of the deceased was a natural witness present on his lands lending help to his deceased son‑‑‑Presence of injured eye‑witness at spot could not be doubted and mere fact that he deposed three days after the occurrence as he was admitted in hospital, would not conclusively show that immediately after receipt of injury he became unconscious and could not witness murder of the deceased‑‑‑Injury on person of witness being fresh, it had to take some time for blood to flow out and injured to loose consciousness‑‑‑Testimony of injured witness, in circumstances, had stamp of authenticity and had lent credence to the prosecution case‑‑­Prosecution having successfully proved its case against accused, their convictions were upheld and they were sentenced accordingly.

Ehsan Ullah and others v. Muhammad Arif and others 2001 SCMR 416 ref.

Abid Hassan Minto and N.A. Butt for Appellants.

A.H. Masood for the State.

Dates of hearing: 2nd and 3rd July, 2001.

2002 M L D 1895

[Lahore]

Before Ijaz Ahmad Chaudhary, J

MUHAMMAD ASLAM and others‑‑‑Petitioners

versus

STATION HOUSE OFFICER and others‑‑‑Respondents

Writ Petition No. 14306 of 2001, decided on 5th October, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.440/447/148/149‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Accused/petitioners earlier had filed a civil suit in which they had claimed that they were in possession of disputed land which had been purchased by them through an agreement to sell‑‑‑Interim stay/status quo order had been passed by Trial Court in the said suit‑‑‑Vendor appeared in Trial Court and petitioners on direction of Court deposited remaining amount‑‑‑­Petitioners had paid entire sale amount of land in dispute before the Court‑‑‑Question as to whether petitioners were in possession of land, was yet to be decided by the Court after recording evidence of both parties and until said question was resolved it could not be said that complainant had got lodged F.I.R. against petitioners with bona fide intention‑‑‑Arguments of petitioners could not be brushed aside that registration of F.I.R. against them prima facie was in order to pressurize them to come to an agreement with complainant‑‑‑Pending of investigation in F.I.R. in circumstances would definitely put pressure on the petitioners to agree upon terms and conditions of complainant‑‑­Interest of justice demanded that investigation in F.I.R. was stayed till final disposal of civil suit pending between the parties‑‑‑Investigation was stayed accordingly.

Ch. Abdus Saleem for Petitioners.

Dr. Asghar Ahmad Rana for Respondent No13.

Zahid Farani Sheikh, A.A.‑G. for the State.

2002 M L D 1945

[Lahore]

Before Ijaz Ahmad Chaudhry, J

SHAHID KHAN‑‑‑Petitioner

Versus

SENIOR CIVIL JUDGE/RETURNING OFFICER and 9 others‑‑‑Respondents

Constitutional Petition No. 14923 of 2001, decided on 15th October, 2001.

Punjab Local Government Elections Ordinance (V of 2000)---‑‑

‑‑‑‑S.2(10)‑‑‑Punjab Local Government Elections Rules, 2000, R.70‑‑­Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑­Contesting election by an Advocate for reserved seat of peasants‑‑­Election of returned candidate had been challenged on ground that returned candidate being an Advocate by profession was not qualified for contesting election for reserved seat of peasants‑‑‑Questions whether returned candidate fell within definition of peasant as given in S.2(10) of Punjab Local Government Elections Ordinance, 2000 and whether he was directly dependent upon income of land or had other sources of income, required recording of evidence‑‑‑Both parties could prove their versions before Election Tribunal in an electrical petition under R 70 of Punjab Local Government Elections Rules, 2000 as that was the only remedy for challenging election of returned candidate after Notification, High Court was not proper forum for the adjudication of the involved and it would be equitable and just if Constitutional remitted to Election Tribunal to treat the same as election Constitutional petition was remitted to Election Tribunal accordingly with direction to try the same as election petition and decide it on merits after affording opportunity of hearing to contesting parties.

Government of the Punjab v. Hudabia Textile Mills 2001 SCMR 209; Rai Muhammad Hayat Khan v. Muhammad Afzal Kahloon and .2 .others NLR 1980 U.C. 437; Muhammad Younas Khan v. Government of N.‑W.F.P. and others 1993 SCMR 618; Ilam Din v. Mst. Hussain Bibi 1990 SCMR 632; Federation of Pakistan v. Major (Retd:) Muhammad Sabir Khan PLD 1991 SC 476 and 1994 SCMR 1299 ref.

Pir S.A. Rashid for Petitioner.

Ghulam Farid Sanotra for Respondents Nos.3 and 4.

Taqi Ahmad Khan: Amicus curiae.

Muhammad Jehangir Wahlah, A.A.‑G. for Respondents.

Date of hearing: 15th October, 2001.

2002 M L D 1966

[Lahore]

Before Abdul Shakoor Paracha, J

BOARD OF INTERMEDIATE AND SECONDARY

EDUCATION, LAHORE through Secretary‑‑‑Petitioner

Versus

Miss GHAZALA ROOHI‑‑‑Respondent

Civil Revision No.518/D of 1993, decided on 2nd November, 2001 .

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

‑‑‑‑S.42.‑‑‑Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976), Ss.29 & 31 Educational institution‑ Correction of date of birth of candidate‑ Suit for declaration‑‑‑Jurisdiction of Civil Court‑‑Criteria to determine, jurisdiction of Civil Court‑‑‑If any action had been taken in good faith though same might not have been done strictly in accordance with relevant provisions of law, jurisdiction of Civil Court would be excluded under Ss.29 & 31 of Punjab Boards of Intermediate end Secondary Education Act, 1976‑‑‑Wheie ‑no allegation was levelled with regard to mala fides and lack of good faith on part of Board's committee, jurisdiction of Civil Court would stand ousted‑‑‑If Board's Committee had acted against provisions of Statute or allegations of mala fides were made against Board regarding any act, jurisdiction of Civil Court could not be ousted despite provisions of Ss.29 & 31 of Punjab Boards of Intermediate and Secondary Education Act, 1976‑‑‑If there was no allegations of mala fides and bad faith on part of officials of Board of Intermediate and Secondary Education, Civil Court had no jurisdiction to entertain suit regarding correction of entries of date of birth of plaintiff candidate.

Rashid Ahmad v. WAPDA and others 1992 PLC (C.S.) 903; 1991 MLD 824; Board of Intermediate and Secondary. Education, Lahore through Secretary v. Mst. Sobia Chand 1999 CLC 1166; PLD 1964 Lah. 260; Abdul Rauf v. Abdul Hameed Khan PLD 1965 SC 671; Commissioner of Income Tax and others v Sufi Muhammad Baloch 1997 MLD 2801; Muhammad Rafique v. Board of Intermediate and Secondary Education and others 1983 SCMR 1024 and Government of Punjab through Secretary, Department of Education, Lahore v. Prof. Mst. Jamida Malik 1991 MLD 824 ref.

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

‑‑‑‑S.115‑‑‑Revisional jurisdiction, exercise of‑‑‑Interference with concurrent findings of Courts below‑‑‑When Courts below illegally .act in exercise of their jurisdiction, their findings, though concurrent, would become amenable to revisional jurisdiction of High Court ‑‑‑Revisional jurisdiction of High Court under S.115, C.P.C. was primarily meant‑to correct errors in making orders and proceedings conducted by subordinate Courts.

Samar Gul and others v. Muhabat Khan and others 2000 SCMR 974 ref.

Sh. Shahid Waheed for Petitioner.

Malik Amjad Pervaiz and Miss Surraya Sultana for Respondent.

Date of hearing: 26th October, 2001.

2002 M L D 1976

[Lahore]

Before Raja Muhammad Sabir, J

QAMAR‑UD‑DIN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.370‑B of 2002, decided on 21st February, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/11‑‑‑Bail, grant of‑‑‑Further enquiry‑‑‑Case was investigated by different Investigating Officers and incomplete challan was submitted‑‑‑Investigating Officer to whom case was subsequently entrusted had concluded that previously similar allegation was made by complainant against accused in his F.I.R., but case was found to be false and was cancelled‑‑‑Complainant had roped the accused in the case‑‑­Alleged abductee in her Constitutional petition before High Court had stated that she was wife of the accused‑‑‑Police in supplementary challan had recommended cancellation of the case against accused‑‑‑ Accused was behind bars for last about 10 months and he was found innocent during investigation‑‑‑Report for cancellation of case against accused, submitted by D.S.P. was duly approved by S.P.-‑‑Allegation against accused, in view of cancellation report submitted by police, had brought the case of accused within ambit of further enquiry‑‑‑Accused was admitted to bail, in circumstances.

Abdul Salam Alvi for Petitioner.

Sh. Naseem Rashid for the State.

Date of hearing: 21st February, 2002.

2002 M L D 1993

[Lahore]

Before Jawwad S. Khawaja, J

Mst. BALQEES and 5 others‑‑‑Petitioners

Versus

SIKANDAR HAYAT and 6 others‑‑‑Respondents

Civil Revision No.462‑D of 1993, heard on 28th November, 2001.

Pakistan (Administration of Evacuee Property) Act (XII of 1957)‑‑‑--

‑‑‑‑S.7‑‑‑Transfer of property‑‑‑Property in dispute which originally belonged to evacuee owner was purchased by predecessor‑in‑interest of petitioners from evacuee owner by means of registered sale‑deed after said property stood vested in Custodian under S.7 of Pakistan (Administration of Evacuee Property) Act, 1957‑‑‑Custodian transferred the property to predecessor‑in‑interest of petitioners‑ ‑‑Title of petitioners, in circumstances, was derived from Custodian, who under statute, was validly vested with title in property which could not be assailed on any of the grounds‑‑‑Appellate Court, in circumstances, had acted with material irregularity while reversing judgment and decree of Trial Court‑‑‑Judgment and decree of Appellate Court, were set aside by High Court, in circumstances.

Ch. Haider Bakhsh for Petitioners.

Nemo for Respondents.

Date of hearing: 28th November, 2001.

2002 M L D 27

[Punjab Appeal Committee of the Pakistan Bar Council]

Before Ch. Muhammad Ashraf Wahlah, Chairman, Rasheed A. Rizvi, Malik Rab Nawaz Noon and Abdul Rahman Kazi, Members

KHALID TEHAMI, ADVOCATE‑‑‑Appellant

Versus

PUNJAB BAR COUNCIL and another‑‑‑‑Respondents

Appeal No.231 of 2001, decided on 22nd September, 2001.

Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑‑‑‑Ss. 41(1)(2), 42 & 43(5)‑‑‑Disciplinary action‑‑‑Cancellation of licence‑‑‑Anti‑Corruption Committee of Punjab Bar Council‑‑­Jurisdiction‑‑‑Allegation against the appellant was that he was engaged in a business other than legal practice and was misusing the position as an Advocate‑‑‑Anti‑Corruption Committee of the Provincial Bar Council issued show‑cause notice to the appellant who failed to appear before the Committee‑--Bar Council cancelled the licence issued to the appellant on the basis of the order passed by the Anti‑Corruption Committee‑‑‑Validity‑‑‑Disciplinary Committee under the provisions of Legal Practitioners and Bar Councils Act, 1973, was competent to take cognizance of the complaint and after inquiry the matter was to be referred to the Tribunal for decision which was competent to .impose any of the punishments provided in SA1(1) of the Legal Practitioners and Bar Councils Act, 1973 and such order was appealable before the Pakistan Bar Council‑‑‑Statutory provisions cold not be superseded or surpassed by any rules or acts of Provincial Bar Councils‑‑‑Authority to take cognizance of any complaint against an Advocate was with the Disciplinary Committee of the Provincial Bar Council while the authority to impose punishment rested with the Tribunal constituted under S.42 of the Legal Practitioners and Bar Councils Act, 1973‑‑‑No authority for holding inquiry or imposing punishment could be entrusted to any non‑statutory Committee‑‑‑Order passed by Anti‑Corruption Committee was without jurisdiction and the same was .set aside and appeal was allowed in circumstances.

2002 M L D 53

[Enrolment Committee of the Pakistan Bar Council]

Before Justice Iftikhar Muhammad Chaudhry, Chairman

and Hafiz Abdul Rehman Ansari, Member

GHULAM SARWAR‑‑‑Appellant

Versus

SINDH BAR COUNCIL, KARACHI

and another‑‑‑‑Respondents

Appeal under section 32 of the Legal Practitioners and Bar Councils Act, 1973, decided on 21st April, 2001.

Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑‑‑‑Ss. 26, 31 & 32‑‑‑Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, R.4(3)(a)‑‑‑Enrolment of an Advocate‑‑‑Appeal against order passed by Provincial Bar Council‑‑‑Appellant who was enrolled as an advocate, after about 8 years' practice, joined Police Department, but was discharged from service on certain allegations‑‑‑Appellant after his discharge from service sought resumption of practice as an advocate, but Enrolment Committee returned his application to the Bar Council with observation that allegations on basis of which appellant was discharged from service fell within the expression of "moral turpitude" ‑‑‑Bar Council endorsed decision of Enrolment Committee and rejected the application for resumption of practice as an Advocate‑‑‑Appellant was on probation in Police Department and his services having not been regularized, no `inquiry was held before discharging him from service‑‑‑Discharge from service could not be equated with dismissal or removal from service‑‑‑Allegations on basis of which appellant was discharged by the Police Department, did not fall within the ambit of definition of "moral turputide" but were of general nature and no specific allegation of accepting bribe, dishonesty or of committing any moral offence was levelled‑‑‑Case of the appellant was maximum of inefficiency which hardly constituted "moral turpitude" ‑‑‑Appeal filed by appellant was allowed and Bar Council concerned was directed for restoration of licence of the applicant so that he could practise law.

Appellant in person.

Muhammad Iqbal, A.A.G., Sindh on behalf of Advocate-­General, Sindh.

2002 M L D 44

[Peshawar]

Before Muhammad Qaim Jan Khan, J

AKRAM KHAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.40 of 2000, decided on 23rd October, 2000.

Prohibition (Enforcement of Hadd) Order (4 of 1979)‑‑‑

‑‑‑‑Art.4‑‑‑Criminal Procedure Code (V of 1898), S.103‑‑‑Appreciation of evidence‑‑‑Search in violation of S.103, Cr.P.C.‑‑‑Effect‑‑­Prosecution evidence was inconsistent and full of doubts and contradictions‑‑‑Complainant S.H.O., had adopted a haphazard procedure with regard to the search warrants‑‑‑" Charas" was not recovered from the exclusive possession of the accused as many inhabitants were living in the house of recovery‑‑‑Despite the availability of many respectable persons of the locality, none of them was associated with the recovery proceedings and as such the provisions of S.103, Cr.P.C. were violated‑‑‑Laboratory report of the sample of the recovered material was not brought on record by the prosecution‑‑­Accused was extended the benefit of doubt and acquitted in circumstances.

Saleemullah Khan Ronazai for Appellant.

Shoukat Hayat Khan Khakwani for the State.

Date of hearing: 23rd October, 2000.

2002 M L D 189

[Peshawar]

Before Ijaz‑ul‑Hassan, J

AWAL KHAN and 3 others‑‑‑Petitioners

Versus

MALIK AMAN and 23 others‑‑‑Respondents

Civil Revision No.53 of 1995, decided on 14th May, 2001.

North‑West Frontier Province Tenancy Act (XXV of 1950)‑‑‑

‑‑‑‑Ss.4 & 5‑‑‑Specific Relief Act (I of 1877), Ss. 42 & 54‑‑‑Suit for declaration and permanent injunction ‑‑‑Revisional jurisdiction, exercise of‑‑‑Plaintiffs/petitioners had claimed that area owned and possessed by their predecessor according to earlier settlement was reduced in subsequent settlement and was adjusted in other area and the defendants/respondents who were occupancy tenants at time of said subsequent settlement had become the owners, of said area‑‑‑Plaintiffs, sought declaration to the effect that they were the owners of said area‑‑­ Trial Court decreed suit, but Appellate Court below set aside judgment and decree of the Trial Court‑‑‑Validity‑‑‑Evidence on record had established that predecessor of the plaintiffs had become owner of the suit land and predecessor of defendants was in possession of the same as occupancy tenant on behalf of the predecessors of the plaintiffs and after promulgation of S.4 of North‑West Frontier Province Tenancy Act, 1950 defendants deposited the required rent and their status was converted to that of the owners of the suit land‑‑‑Survey map though was not direct evidence of title yet it was direct evidence of possession at a particular time, namely, the time at which the survey map was made‑‑‑ Appellate Court after discussing all material issues at length, set aside judgment and decree passed by the Trial Court in favour of the plaintiffs/petitioners and no prejudice had been caused to the plaintiffs‑‑­In absence of any misreading or non‑reading of evidence on record, judgment passed in appeal could not be interfered with by the High Court in exercise of its revisional jurisdiction.

1993 SCMR 92; PLD 1993 Lah. 566; 1989 CLC 2206; 1992 CLC 382 and PLD 1960 (W.P.) Lah.181 ref.

Saleh Bin Ahmed Sultan for Petitioners.

Qazi Ghulam Rauf for Respondents.

Date of hearing: 13th April, 2001.

2002 M L D 199

[Peshawar]

Before Nasirul Mulk and Ijaz‑ul‑Hassan, JJ

SHER AFZAL‑‑‑Petitioner

versus

ABDUL MALIK and 2 others‑‑‑Respondents

Writ Petition No.211 of 1999, decided on 12th September, 2001.

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

‑‑‑‑O. VI, R.17‑‑‑Amendment of plaint‑‑‑Delay alone in application for amendment was not a ground for refusing amendment in plaint but the Court was bound at the same time to keep in view that while allowing amendment no prejudice was caused to other side and that the amendment was necessary for accurate determination of case

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

‑‑‑‑O. VI, R.17‑‑‑Constitution of‑--Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Amendment in plaint‑‑‑Principles‑‑‑Court is empowered under O. VI, R.17, C. P. C., to allow amendment in plaint—Court while allowing such amendment, should also keep in view the rights of the defendant‑‑‑No amendment should be allowed which was aimed to change complexion of the suit altogether or to introduce a new case based on new cause of action‑‑Application for amendment, in the present case, was. made at belated stage when the case was fixed for arguments‑‑‑Plaintiff when realized that the witnesses produced by him did not support his claim and spoke differently, he immediately moved application for amendment simply to bring his case in line with the deposition made by his witnesses‑‑‑Valuable right accrued to the defendant could not be snatched away lightly‑‑‑No illegality or material irregularity having been committed by the Courts below in rejecting application for grant of amendment in plaint, concurrent or ers passed by Courts below could not be interfered with by the High Court in exercise of its Constitutional jurisdiction when plaintiff/petitioner had failed to point out any jurisdictional defect in such findings.

Ghulam Nabi v. Sardar Nazir Ahmad 1985 SCMR 824; Ali Hussain v. Late Ali Ahmad Khan 1983 SCMR 1178; Muhammad Ismail v. Muhammad Sarwar 1980 SCMR 254; S. Ikhlaq Hussain v WAPDA. Lahore 1997 SCMR 284; Zubaida Begum v. Wali Muhammad Khan 1974 SCMR 181; Bashir Ahmad Khan v. Qasiar Ali Khan PLD 1973 SC 507; Ahmad Din v. Muhammad Shafi PLD 1971 SC 762; Sultan Ahmad and another v. Sahu and others 1969 SCMR 277; Kaptan Yousuf Kalkava v. Semco Salvage PTD Ltd. 1992 CLC 143 and Sardar Muhammad Mushtaq Khan and 6 others v. Sardar Muhammad Pervez Khan and 14 others 2001 MLD 1725 ref.

Muhammad Ilyas Khan for Petitioner.

Qazi Anwarul Haq for Respondents.

Date of hearing: 12th September, 2001

2002 M L D 205

[Peshawar]

Before Nasirul Mulk and Ijaz‑ul‑Hassan, JJ

Dr. MUHAMMAD EHTESHAM and another‑‑‑Appellants

versus

SAJID LATEEF SETHI and 17 others‑‑‑Respondents.

Regular First Appeal No.22 of 1996, decided on 14th June, 2001

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts.95 & 117‑‑‑Specific Relief Act (I of 1877), Ss. 8 & 42‑‑‑West Pakistan Land Revenue Act (XVII of 1967), Ss. 44 & 53‑‑‑Suit for declaration and possession‑‑‑Presumption as to general power` of attorney‑‑‑Burden of proof--‑Claim of the‑Appellants was that power of attorney allegedly executed by their late father in respect of plot in dispute in favour of respondent on basis of which the respondent had sold the plot to other respondents was forged and fictitious and sale made on basis of said power of attorney was illegal and liable to be set aside‑‑­Appellants by producing sufficient documentary evidence on record had rebutted the presumption of truth attached to said power of attorney and proved that their late father had never executed the same in favour of respondent authorizing him to sell plot in dispute and that said power of attorney was procured by the respondent through deceitful means‑‑­Where a document was repudiated by its executant or any one claiming under him as a forged document, the party claiming under said document must prove that document was genuine‑‑‑Onus in such a case was on the respondent to prove that said document was executed in his favour and was genuine which he failed to discharge‑‑‑Presumption of truth attached to a registered document was rebuttable ‑‑‑Trial Court, in circumstances, was not justified to dismiss the suit holding that the Appellants had failed to prove general power of attorney was fraudulent and fictitious.

PLD 1977 Lah. 729 and PLD 1968 Dacca 201 ref.

(b) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S. 41‑‑‑Transfer by ostensible owner‑‑‑Protection of rights of the transferees‑‑‑Considerations for‑‑‑Considerations necessary for the application of S.41,. Transfer of Property Act, 1882 were that the transferor was the ostensible owner, that he was so by the consent, express or implied, of the real owner; that the transfer was for consideration and that the transferee had acted in good faith taking reasonable care to ascertain that the transferor had ' power to transfer.

Sajjad Ahmad Abbasi for Appellants.

Qazi Muhammad Sheharyar for Respondent No. 11.

Muhammad Tariq Khan Tanoli for Respondents Nos. 12 to 18.

Date of hearing: 17th May, 2001.

2002 M L D 235

[Peshawar]

Before Sardar Muhammad Raza Khan, C.J. and Shah Jehan Khan, J

WALI MUHAMMAD ‑‑‑Appellant

versus

GOVERNMENT OF N.‑W.F.P and others‑‑‑Respondents

Regular First Appeals Nos.99 and 90 of 1997, decided on 13th March, 2001.

Land Acquisition Act (I of 1894)‑--

‑‑‑‑S.18‑‑‑Acquisition of 'land‑‑‑Compensation‑‑‑Proof‑‑‑Objector was running marble factory on the land acquired by the Authorities‑‑­Compensation awarded by the Authorities was not accepted by the objector‑‑‑Crush machine and other superstructure capable of removing and installation somewhere else were removed by the objector‑‑­Compensation amounting to Rs.53,737.36 was paid to the objector over and above the removed material under protest and to prove the damage sustained by the objector engineer of private firm was produced‑‑­Validity‑‑‑Where the engineer was not associated with the representative of acquiring Department and his report was based on cursory look and without cogent evidence, such report could not be relied upon‑‑‑Witness of the acquiring Department could not be disbelieved and the referee Court had rightly relied upon his assessment and had enhanced the compensation for superstructure to Rs.3,87,000 with 15% compulsory acquisition charges and 6% simple interest from the date of taking physical possession till payment of compensation in Court as permissible under the law‑‑‑Objector failed to establish through cogent evidence that he had sustained a loss of Rs.8,00,000 as claimed by him in the objection petition‑‑‑Appeal was dismissed in circumstances.

Sher Bahadar for Appellant.

Pervez Younas and Muhammad Alam Khan for Respondents Nos. 2 to 12 (in R.F.A. No. 90 of 1997).

Date of hearing: 16th January, 2001.

2002 M L D 280

[Peshawar]

Before Shah Jehan Khan and Qazi Ehsanullah Qureshi, JJ

Mst. SHAHI LAL‑‑‑Petitioner

versus

Malik SAAD, S.S.P., PESHAWAR and 12 others‑‑‑Respondents

Writ Petition No.954 of 2000, decided on 1st November, 2001.

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

‑‑‑‑Ss.154 & 190‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Setting the criminal law into motion‑‑­Modes‑‑‑Discretionary powers, exercise of‑‑‑Two modes had been provided, in the Criminal Procedure Code‑‑‑In order to set the criminal law into motion one by way of lodging of report with the police under S.154, Cr.P.C. in respect .of commission of cognizable offence and other by filing of a complaint before a Magistrate as provided by 5.190, Cr.P.C.‑‑‑Requirement of law was that Police Officer had to record the F. I. R. of a cognizable offence under 5.154, Cr.P.C., but if it was a non‑cognizable cane then substance of such information was to be entered in the relevant register and in each case the refusal was out of question ‑‑‑Incharge of a police station was duty‑bound and it was his statutory obligation that on receipt of information whether orally or writing, he had to record the same in the book prescribed for that purpose and no option or discretion was left with him in that regard‑‑‑Fact that the petitioner/complainant had an alternative remedy of filing a private complaint would not take away the discretion of the High Court and deter the Court from giving directions to the police to record F.I.R. in an appropriate case‑‑‑Discretionary powers must be exercised in good faith having regard to all relevant considerations and it should be exercised justly, fairly and reasonably.

(b) Discretion‑‑‑

‑‑‑‑ Exercise of discretionary powers‑‑‑Discretionary powers must be exercised in good faith having regard to all relevant considerations and it should be exercised justly, fairly and reasonably.

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

‑‑‑‑Ss.154 & 190‑‑‑Penal Code (XLV of 1860), Ss.302/148/149‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Registration of a criminal case‑‑‑Petitioner who was mother of the deceased had charged the respondents/police officials for murder of her son when he was in police custody, whereas the version of the respondents was that the deceased died in police encounter and case had been registered in that respect‑‑‑Police was not possessed with the right to murder or kill any citizen accused of any offence only for the reason that such person was involved in a criminal case and was keeping a previous bad record‑‑‑Person keeping bad record could be innocent in the case registered against him because under the law presumption of innocence would continue until he was proved guilty‑‑‑If the police machinery would take law in its hands it was to be dealt with in the same manner as the ordinary citizens were dealt with‑‑‑Nobody could be allowed to take law into his hands and it was the duty of the Courts to curb the highhandedness strictly‑‑‑In view of totally different versions of the parties regarding the occurrence, it could not be said as to which version was correct and the truth could be ascertained only if the case of the petitioner was registered and both the cases were investigated together‑‑ ‑Unless both the versions were placed before the Court, no proper adjudication of the respective contentions could be made‑‑‑To submit challan in one case and to ignore the other version was not at all conducive to the interest of justice‑‑‑High Court accepting Constitutional petition ordered registration of case against the respondents in accordance with S.154, Cr.P.C. for the murder of the son of the petitioner and that investigation in case should be entrusted to an experienced and honest police official of the Crime Branch.

Sardar Hussain for Petitioner.

Tariq Javed, A.A. ‑G. for Respondents.

Date of hearing: 1st November, 2001.

2002 M L D 293

[Peshawar]

Before Qazi Ehsanullah Qureshi and Ijaz‑ul‑Hassan, JJ

TANVEER HUSSAIN SHAH‑‑‑Appellant

versus

CHAN WAIZ alias KALA SHAH and others‑‑‑Respondents

Criminal Appeal No.2 of 1997,‑decided on 16th October, 2001.

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

‑‑‑‑S. 249‑A‑‑‑Power to acquit accused‑‑‑Scope‑‑‑Application under S.249‑A, Cr.P.C. could be filed at any stage of proceedings provided the requisite conditions were met and there was no illegality if the prosecution had not examined all the witnesses‑‑‑Requirements to be fulfilled were that hearing was to be given to the prosecution and counsel for the accused and that reasons were recorded in support of the conclusion that the charge was groundless and there was‑ no probability of the accused being convicted.

State v. Asif Ali Zardari 1994 SCMR 798; Aarub Khan v. Haris M.B. Ahmad and others PLD 1996 Kar. 253 and Abdul Sattar and others v. The State 1992 PCr.LJ 2054 ref.

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

‑‑‑‑S.417 (2‑A)‑‑‑Penal Code (XLV of 1860), S.324/34 ‑‑‑ Appeal against acquittal‑‑‑Order of acquittal passed by the Trial Court being balanced and well‑reasoned, would hardly call for interference of the High Court in appeal.

Muhammad Naseem Zaman for Appellant.

Nemo for Respondents.

Date of hearing: 16th October, 2001.

2002 M L D 330

[Peshawar]

Before Ijaz‑ul‑Hassan, J

ABDUL GHAFFAR and 2 others‑‑‑Petitioners

versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous Application No.239 of 2001, decided on 12th November, 2001.

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

‑‑‑‑S.497‑‑‑‑Bail‑‑‑Exercise of discretion by the Trial Court in matter of bail‑'‑ Interference by High Court‑‑‑Scope‑‑‑High Court normally would not interfere with the exercise of discretion by the Trial Court in the matter of bail, but where interference was inevitable, High Court was under duty to do so in order to secure the ends of justice and to do complete and substantial justice to the parties.

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

‑‑‑‑(. 497‑‑‑Penal Code (XLV of 1860), Ss. 354‑A, 452, 506 & 34‑‑­Bail, grant of‑‑‑Exercise of discretion by the Trial Court‑‑‑Interference by High Court‑‑‑Scope‑‑‑Order refusing bail to the accused passed by the Trial Court was neither illegal nor perverse warranting interference by High Court‑‑‑Bail had been declined to the accused for valid and cogent reasons‑‑‑Tentative Assessment of the evidence in the hands of prosecution consisting of the statement of victim lady had prima facie shown that reasonable grounds existed to believe that the accused had committed the crime for which they were charged and were not entitled to grant of bail‑‑‑Trial Court, in circumstances, had rightly declined bail to the accused holding that accused had not been able to successfully demonstrate the existence of the circumstances justifying the grant of bail.

Ghulam Haider and others v. The State 1989 PCr.LJ 954; Manzoor Hussain and another v. The State 1993 PCr..LJ 2406; Amic Khan v. Mst. Gohran and. another 1985 SCMR 1847; Mst. Taj Mahi alias Tanjoo v. The State 998 MLD 2077; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Imtiaz Ahmad and another v. The State PLD 1997 SC 545; Mst. Zaitoon v. Muhammad Riaz and 3 others PLD 1996 Pesh. 30 and Mst. Taj Mahi alias Tajoo v. The State 1998 MLD 2017 ref.

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

‑‑‑‑S. 497‑‑‑Bail, grant of‑‑‑Appreciation of evidence at bail stage-‑‑Not permissible‑‑‑Evidence of the parties at bail stage could not be assessed/tested in depth‑‑‑Purpose was to avoid expression of opinion one way or the other on merits of the case.

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

‑‑‑‑Ss. 497 & 497(5)‑‑‑Bail, grant of or cancellation of‑‑‑Considerations for‑‑‑Considerations for the grant of bail and the considerations for the cancellation of the, bail, were absolutely different‑‑‑Once accused had been admitted to bail, his liberty could not be interfered with lightly‑‑­Where the accused after grant of bail had not misused the concession of bail and had not interfered with the course of investigation or that while granting bail the Trial Court had not acted illegally and in violation of the settled principles for grant of bail, bail granted to the accused, could not be cancelled.

Muhammad Muzaffar Khan Swati for Petitioner.

Khuram Ghias Khan for the State.

Muhammad Akbar Khan Swati for the Complainant

Date of hearing: 12th November, 2001.

2002 M L D 347

[Peshawar]

Before Shahzad Akbar Khan and Ijaz‑ul‑Hassan, JJ

STATE ‑‑‑Appellant

versus

IFTIKHAR‑‑‑Respondent

Criminal Appeal No.45 of 1994, decided on 26th October, 2000

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Criminal Procedure Code (V of 1898), S.417‑‑‑Appeal against acquittal‑‑‑Prosecution case entirely rested on the solitary statement of prosecution witness who was mother of the deceased who furnished ocular account of the incident and also stated about the motive of the occurrence‑‑‑Solitary statement of a witness though was sufficient to base conviction of accused provided the same rang true, but the sole testimony of related chance witness would not be relied upon in a case involving a capital charge, unless such witness inspired confidence by furnishing plausible and convincing explanation for his/her presence at a place where he/she was not ordinarily expected to be present at a given time‑‑‑Evidence on record had proved that the solitary witness was not present on the spot and she had not witnessed the occurrence‑ ‑‑Trial Court, in circumstances, had rightly disbelieved solitary statement of such witness ‑‑‑F.I.R. had also been lodged after considerable delay which appeared to have been made after consultation and preliminary investigation‑‑‑Authenticity of F.I.R. was questionable in circumstances‑‑‑Alleged abscondence of the accused was meaningless because it could neither remove the defects of the oral evidence nor by itself was sufficient to bring guilt home to the accused‑‑‑Medical evidence also did not support the accusation and the motive had not been satisfactorily proved‑‑‑Evidence regarding recovery of the gun at the pointation of the accused was also highly doubtful‑‑­Grounds of acquittal of the accused could not be called fanciful or perverse, in circumstances‑‑‑Appeal against acquittal was dismissed.

Muhammad Ayub Khan, A.A.‑G. for the State, Khan Afsar Khan for the Complainant.

Ghulam Mujtaba Khan Judoon and Ghulam Younis Tahir for Respondent.

Date of hearing: 26th October, 2000.

2002 MLD 360

[Peshawar]

Before Ijaz-ul-Hassan, J

SHEHR YAR KHAN and another---Petitioners

Versus

WAQAR ALI and 2 others--‑Respondents

Criminal Miscellaneous No.391 of 2000, decided on 5th November, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(5)‑‑‑Penal Code (XLV of 1860), S.324/34‑‑‑Bail‑‑­Considerations for grant and cancellation of bail‑‑‑Considerations for the grant of bail and considerations for the cancellation of bail were absolutely different‑‑‑Once an accused had been released on bail, his liberty could not be interfered with lightly‑‑‑Bail granting order, in the present case, was neither violative of the legal norms nor had resulted in miscarriage of justice‑‑‑No extraordinary circumstances had been pointed out which could constitute an impediment in the way of granting bail to the accused‑‑‑Grounds advanced by the Trial Court for grant of bail to the accused were cogent, and convincing and legitimate grounds recognized by the superior Courts for cancellation of bail, were missing in the case‑‑‑Nothing was on record to suggest that the accused had misused their liberty by indulging in any criminal activity or interfered with course of investigation‑‑‑Applicants for cancellation of bail had not successfully demonstrated the existence of circumstances justifying the cancellation of bail to the accused, application for cancellation of bail was dismissed in circumstances.

Abdul Ghafoor v. Muhammad Ashraf and another 1994 PCr.LJ 804; Khalid Ahmad v. The State 2000 PCr.LJ 214; Qaid‑e‑Azam v. The State 2000 PCr.L1 216; Dr. Zulkifal v. Pervez Akhtar and others 2000 PCr.LJ 284; Mashooq Ali alias Iqbal v. The, State 2000 PCr.LJ 1951 and Muhammad Sharif v. Shafqat Hussain alias Shaukat and another 1999 SCMR 338 ref.

Abdullah Jan Mirza for Petitioners.

S.Amjad Shah and Fazal‑e‑Haq Abbasi for Respondents

Date of hearing: 5th November, 2001

2002 M L D 621

[Peshawar]

Before Tariq Parvez and Muhammad Qaim Jan Khan, JJ

DAMSAZ KHAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Case No.20 of 2001, decided on 3rd May, 2001.

Prohibition (Enforcement of Hadd) Order (4 of 1979)‑‑‑

‑‑‑‑Art.3‑‑‑Appreciation of evidence‑‑‑Two star witnesses of the prosecution were inconsistent on almost every material fact of the case‑‑­Even the statements of the two witnesses regarding mode in which the raid was conducted and the police party entered the house were contradictory to each other‑‑‑No person from the public or the surrounding houses had been associated which had created substantial doubt in the case of the prosecution‑‑‑Conviction and sentence awarded to the accused by the Trial Court were set aside and he was acquitted of the charge against him.

Dost Muhammad Khan for Appellant.

Shoukat Hayat Khan Khakwani, Dy. A.‑G. for the State, Date of hearing: 3rd May, 2001.

2002 M L D 651

[Peshawar]

Before Talat Qayyum Qureshi, J

TAUS KHAN‑‑‑Petitioner

versus

MUHAMMAD SHUAIB-‑‑Respondent

Civil Revision No.536 of 1994, decided on 23rd April, 2001.

(a) Islamic Law---

‑‑‑‑Gift of undivided property in favour of minor‑‑‑Delivery of possession‑‑‑Donee being minor at the‑time of making of gift of property in his favour, delivery of possession of gifted property to him by the donor was not sine qua non for the validity of the gift‑‑‑Delivery of possession of gifted property to other donee who was major at the time of making of gift, was also not necessary because said property at relevant time had not been partitioned‑‑‑Possession of such donee could be regulated and validated by subsequent delivery of possession after partition of, said property‑‑‑Gift of specified Khasra numbers out of the joint poperty on which donor had possession, would be justified subject to adjustment at the time of partition of property.

Feroze v. Sher and others PLD 1985 SC 254; Saad Ullah v. Ibrahim AIR 1952 Lah. 518; Muhammad Amin v. Kamar Das AIR 1924 Lah. 293; Sukh Dew v. Parsi AIR 1940 Lah.473; Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC 9; Muhammad Sharif and 3 others v. Ghulam Hussain and another 1995 SCMR 514; Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC (Pak.) 9; Hakim Khan v. Aurangzeb and another PLD 1975 Lah. 1170 and Muhammad Afzal and another v. Mst Khurshid Begum and 3 others PLD 1975 Pesh. 24 ref.

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

‑‑‑S.115‑‑‑Revisional jurisdiction‑‑‑Scope‑‑‑Where Courts below had properly appreciated the evidence on record as well as the law applicable to the case and neither any non‑reading or misreading of evidence was shown nor any material irregularity or any jurisdictional error or defect was pointed out, concurrent judgments and decrees of Courts below could not be interfered with by the High Court in exercise of its revisional jurisdiction.

Attaullah Khan for Petitioner.

Miss Nusrat Yasmin for Respondent.

Date of hearing: 19th March, 2001.

2002 M L D 662

[Peshawar]

Before Malik Hamid Saeed, J

TAHIR AHMAD‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.240 of 2000, decided on 22nd January 2001.

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

‑‑‑‑Ss. 154 & 561‑A‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss. 7, 8, 9, 10 & 11‑‑‑Registration of second F.I.R.‑‑‑Powers under S.561‑A, Cr.P.C.‑‑‑No hard and fast rules existed under which the Police/Investigating Agencies could be prevented from registering a second F.I.R. in respect of different version of an incident or registering an incident taking place on the same date on which another incident had already taken place‑‑‑Powers under 5.561‑A, Cr.P.C., were intended to prevent the abuse of the process of the Court, but not to stifle prosecution.

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

‑‑‑‑S.561‑A‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss. 7, 8, 9, 10 & 11‑‑‑Quashing of F.I.R.‑‑‑Accused was unable to show that no probability existed of his conviction for the offence he was charged with or that the registration of the F.1.R. against him amounted to double jeopardy or that quashment of the F.I.R. against the accused would secure the ends of justice‑‑‑Petition for quashing F.I.R. being without force, was dismissed.

Javed A. Khan for Petitioner.

Kh. Azhar Rashid, A.A.‑G, (on Pre‑admission Notice) for the

Date of hearing: 22nd January, 2001

2002 M L D 690

[Peshawar]

Before Qazi Ehsanullah Qureshi, J

GHIYAS ‑‑‑ Petitioner

versus