MLD 2003 Judgments

2003 M L D 633

[N.‑W.F.P. Bar Council Tribunal]

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

Haji HABIB ULLAH‑‑‑Appellant

Versus

FAZAL RAHIM, ADVOCATE and another‑‑‑Respondents

Appeal No.TA‑22 of 2001, decided on 14th December, 2002.

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

‑‑‑‑S.41‑‑‑Professional misconduct‑‑‑Disciplinary Committee, powers of‑‑‑Scope‑ ‑‑Committee could reject complaint after making enquiries and giving parties an opportunity of hearing‑‑‑Where Committee wanted to impose punishment, then matter must be referred to the Tribunal for final adjudication as Committee had no power to award punishment under S.41 of the Act, which also provided for reprimand or warning as minor punishment.

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

‑‑‑‑S.41‑‑‑Professional misconduct‑‑‑Disciplinary Committee rejected complaint after giving warning to Advocate‑‑‑Validity‑‑‑Impugned order was self‑contradictory, thus, was liable to be struck down‑‑‑Tribunal accepted appeal, set aside impugned order and remanded case to Disciplinary Committee for fresh decision after giving patties opportunity of hearing.

M. Jamil for Appellant.

Respondent No. 1 in person.

Malik Akhtar Naveed, Dy A.‑G. for N.‑W.F.P. Government.

2003 M L D 1027

[Punjab Bar Council Tribunal]

Before Justice Nasim Sikandar, Chairman, Arif Chaudhry and Nusrat Javaid Bajwa, Members

MUHAMMAD INAYAT---Complainant

Versus

MANZOOR AHMED DHUDRA, ADVOCATE, GUJRAT---Respondent

File No. 194 of 1998, decided on 4th January, 2003.

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

----Ss. 41 & 42---Professional misconduct---Complainant had alleged that Advocate had claimed himself to be a relative of the Judge before whom criminal case against complainant party was pending and demanded huge amount for procuring acquittal of all the accused and had taken that amount from the complainant deceitfully---Complainant through his complaint accompanied by affidavits had demanded the return of said amount from the Advocate and had requested for disciplinary action against him---Advocate denied the allegation as being totally false and frivolous---When case came up for hearing before the Disciplinary Committee of the Bar Council, an offer was made by the Advocate himself that in the case complainant and his witness took Special Oath that complainant had given alleged amount to the Advocate he would be ready to pay back the same to the complainant---Complainant accepted offer of Advocate and took Special Oath accordingly, but when proceedings of Special Oath had undergone, Advocate resiled from his offer and denied to pay back amount to the complainant---Disciplinary Committee referred the complaint to the Tribunal of the Bar Council--­Complainant appeared as his own witness and produced two witnesses who stated unrebuttedly that complainant paid amount to the Advocate as illegal gratification for its onward transmission to the Judge who was seized of the criminal case in which complainant's son and nephew were the accused---Advocate was not at all within his legal or moral right to resile or back out from his offer and undertaking given before the Disciplinary Committee---Special Oath was meant to put an end to the controversy and it could not be subjected to any cross-examination--­Disputed amount was proved to have been taken by the Advocate from the complainant and defence by the Advocate did not appeal to the reason as he had taken divergent, inconsistent and incoherent defence pleas--­Complainant, in circumstances had successfully established his allegation against the Advocate- --Advocate was .guilty of professional misconduct and was ordered to be removed from legal practice---Office of the Bar Council was directed to remove the name of the Advocate from the Roll of Advocates---Complainant could seek his remedy for repayment of his amount both on civil as well as criminal side of .administration of justice.

Complainant in person.

Respondent in person.

Malik Akhtar Hussain Awan, Addl. A.-G. Punjab

Date of hearing: 4th January, 2003.

2003 M L D 222

[Election Tribunal N.‑W.F.P.]

Before Tariq Parvaz Khan, J

UMAR AYUB KHAN ‑‑‑Appellant

versus

RETURNING OFFICER NA‑19, N.‑W.F.P., DISTRICT HARIPUR/ADDITIONAL

DISTRICT AND SESSIONS JUDGE, HARIPUR and another‑‑‑Respondents

Election Appeals Nos.9 and 10 of 2002, decided on 13th September, 2002.

(a) Representation of the People Act (LXXXV of 1976)‑‑‑.

‑‑‑‑Ss.8‑A [as inserted by Chief Executive's Order No.17 of 2002], 12, 14(3)(5‑A) & 99(1)(cc)‑‑‑Filing of detailed Marks Certificate instead of Bachelor. Degree‑‑‑Acceptance of nomination papers by Returning Officer‑‑‑Validity‑‑‑No objection as to genuineness of Detailed Marks Certificate had been taken except that instead of detailed marks the Bachelor Degree should have been produced‑‑‑Respondent produced original Bachelor Degree before Tribunal, which was verified from the concerned University‑‑‑Law required that candidate should be a Graduate‑‑‑Such qualification could be proved on the basis of any evidence to the satisfaction of Returning Officer, having power to accept or reject nomination paper on any ground mentioned in S.14 of the Representation of the People Act, 1976‑‑‑Returning Officer had power under S.14(3)(ii) of the Act to allow a candidate to remedy any defect in nomination paper at the time of scrutiny‑‑‑Tribunal under S.14(5‑A) of the Act could take material into consideration for reaching at correct and just conclusion‑-‑Respondent was, held, to be a Graduate and was not suffering, from such disqualification.

(b) Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑‑Ss.12 & 14(3)(c)‑‑‑Declaration of assets filed by respondents on the basis of "Goshwara Malkiat" issued by Patwari and verified by Tehsildar‑‑‑Such declaration was at variance with “Goshwara Malkiat" filed with objection petition‑‑‑Returning Officer accepted nomination papers of respondents‑‑‑Validity‑‑‑Respondents had not shown their agricultural land on the basis of their assessment, but on the basis of documents provided to them by Patwari‑‑‑If Patwari had later on rectified any mistake committed by him, respondents could not be penalized for such act of Patwari‑‑‑Rejection of nomination papers was a penalty, which could only be imposed, if an offence was committed or law violated‑‑‑Section 14 of the Act would apply, when false statements had been made with mens, rea, but not otherwise‑‑‑Mere existence of defect in nomination paper not of substantial nature and defect, which could be remedied, should not be made ground for rejection of nomination papers‑‑‑Returning Officers could ask respondents to file fresh "Goshwara Malkiat"‑‑‑Election Tribunal dismissed appeals in circumstances.

Abbas Khan and others v. Appellate` Authority District and Sessions Judge, Attock and others 2002 SCMR 398 and Zulfiqar Ahmad v. Returning Officer Writ Petition No. 168 of 2001 distinguished.

(c) Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑‑Ss.12(2) (a to f) & 14(3)(c)‑‑‑Declaration of assets‑‑‑Nomination papers, rejection of‑‑‑Scope‑‑‑Statement made by a nominee on the basis of a document supplied to him by a Government functionary, if not correct, but was corrected, later on, would not be made basis for denying a guaranteed fundamental right to a contesting candidate, which could not and should not be the spirit of law.

d) Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑Ss.12 & 14(3)(c)‑‑‑Nomination papers, rejection of ‑‑‑Scope and traditions‑‑‑Rejection of nomination papers filed in violation of S.12 of the Act in all cases would be against all norms of justice‑‑‑Rejection of nomination papers was a penalty, which could be imposed, if an offence was committed or law violated‑‑‑In both such cases, there should be presence of mens rea alongwith act‑‑‑Where in a particular case, false statements were made but with mens rea, the provisions of S.14(3)(c) of the Act would be applicable, but not otherwise.

Haji Ghulam Basit for Appellant (in both Appeals).

Muhammad Zahid, Civil Moharrir of A.S.J.I, Hairpur/Returing Officer N.A. 19 for Respondent No. l (in both Appeals).

Abdul Samad Khan for Respondent No.2 (in Appeals No.9 of 2002).

Khalid Rehman for Respondent No.2 (in Appeal No.10 of 2002).

Date of hearing: 13th September, 2002.

2003 M L D 1842

[Election Tribunal Sindh]

Before Justice Syed Zawwar Hussain Jafferi, Election Tribunal

Syed MUHAMMAD SHAH---Petitioner

Versus

MARVI MAZHAR and others---Respondents

Election Petition No.97 of 2002, decided on 6th June, 2003.

Representation of the People Act (LXXXV of 1976)----

----Ss.55(3) & 63---Election petition, dismissal of---Non-verification and attestation of annexures---Plea raised by the returned candidate was that as the annexures were not verified as required under S.55(3) of Representation of the People Act, 1976, the petition was liable to be dismissed---Validity---Failure to attach annexures with election petition would not be fatal to the petition if those had not made out any additional allegation of substantive character or had furnished better particulars of the allegations made in the petition---Non-verification of the annexed documents with election petition would not be material for dismissal of the petition---Documents in question were merely in support of contentions/allegations levelled in the election petition---Application was dismissed in circumstances.

Haji Mian Azizur Rehman Chan v. Mian Abbas Sharif 1994 MLD 2293 and Haji Amanullah Khan v. Sahabzada Tariqulah PTC and others 1995 CLC 158 ref.

Nooruddin Sarki for Petitioner.

Ghulam Rasool Mangi for Respondent No. 1.

Date of hearing: 6th June, 2003.

2003 M L D 1516

[Federal Shariat Court]

Before Zafar Pasha Chaudhry and S.A. Rabbani, JJ

FAROOQ HUSSAIN and another---Appellants

Versus

THE STATE---Respondent

Jail Criminal Appeal No. 109-1 of 2002, decided on 9th June, 2003.

Penal Code (XLV of 1860)---

----S.377/34---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Appreciation of evidence ---F.I.R. was lodged after about 12 days of the occurrence and explanation tendered for such delay that attempts for conciliation or compromise were being made, did not appear to be convincing---Various discrepancies in statements of two prosecution witnesses who claimed to be eye-witnesses of occurrence, had belied their testimonies and their reaching at place of occurrence and witnessing occurrence appeared to be unacceptable being exaggerated---­Statement of victim could not be accepted as the same was neither corroborated by any credible piece of evidence nor from Medical or Chemical Examiner's Report---Rule of prudence as well as safe administration of justice demanded that solitary statement on which conviction had to be based, , should be unimpeachable---Solitary statement of victim in the present case, who was quite a mature person aged about 21/22 years, was not supported by any evidence coming from independent source---Prosecution had brought on record evidence of recovery of pistol from accused, but mere recovery of pistol which was not fired during occurrence, would be inconsequential---Prosecution had not been able to prove its case against accused beyond doubt and benefit of doubt invariably would go to the accused---Conviction and sentence as recorded against accused by Trial Court, were set aside arid they were ordered to be released.

Dr. Babar Awan for Appellants.

Muhammad Sharif Janjua for the State.

Date of hearing: 9th June, 2003.

2003 M L D 1

[Karachi]

Before Wahid Bux Brohi, J

MUHAMMAD AHMED BAIG‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.90 of 1999, decided on 7th March, 2002.

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

‑‑‑‑Ss.28 & 29 [as amended by Legal Reforms Act (XXIII of 1997)] & S.561‑A‑‑‑Penal Code (XLV of 1860), Ss. 174, 175 & 228‑‑‑Quashing of proceedings‑‑‑Application for‑‑‑Jurisdiction of Court ‑‑‑Applicant/accused who was Investigating Officer in a criminal case pending trial before Special Judge, was bound down for his attendance before Court and production of witnesses as well as case property, but applicant failed to comply with order of Court on relevant date of hearing without any reason‑‑‑Trial Court issued show‑cause notice to applicant, but he did not respond to that notice‑‑‑Trial Court directed to file, complaint against applicant for offences under Ss. 174, 175 & 228, P.P.C. before Court of competent jurisdiction‑‑‑Complaint filed against applicant was forwarded to Judicial Magistrate who took cognizance of the case‑‑‑Only "Executive Magistrate" under Ss.28 & 29, Cr.P.C. could try offences registered under Ss.174, 175 & 228, P.P.C.‑‑‑Cognizance of case or cases, in circumstances, . could not be taken by 'Judicial Magistrate'‑‑‑Offence against applicant having actually taken place within territorial limits of the concerned District, Magistrate of the District would have jurisdiction to try case against accused and not Magistrate of other District Courts‑‑­Judicial Magistrate on both counts was not competent to take cognizance of the case‑‑‑Proceedings before Judicial Magistrate amounting to abuse of process of Court, were quashed, in circumstances.

Mumtaz Khan v. The State PLD 1983 FSC 225 ref.

Jawed Haider Kazmi for Applicant.

Fazal‑ur‑Rehman Awan for the State.

2003 M L D 9

[Karachi]

Before Sarmad Jalal Osmany, J

MUSARAT MASOOD LODHI and others‑‑‑Appellants

Versus

MASOOD HAMEED LODHI and others‑‑‑Defendants

Suit No. 1713 of 1997, decided on 31st March, 2000.

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

‑‑‑‑S.54‑‑‑Perpetual injunction, grant of‑‑‑Essentials‑‑‑Such injunction may be issued to prevent breach of an obligation existing in favour of plaintiff, whether expressly or by implication particularly when defendant invades or threatens to invade plaintiff's right or enjoyment in the particular circumstances enunciated by S.54 of Specific Relief Act, 1877.

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

‑‑‑‑S.54‑‑‑Suit for perpetual injunction‑‑‑Maintainability‑‑‑Plaintiff in lawful possession of immovable property can always approach a Court of law for an injunction to the effect that, he/she may not be dispossessed except in due course of law.

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

‑‑‑O. VII, R.11‑‑‑Rejection of plaint‑‑‑Essentials‑‑‑Strength or weakness of plaintiff's case is not to be examined at the stage of rejection of plaint under O.VII, R.11, C.P.C.‑‑‑Plaint not displaying a cause of action or otherwise barred by any law, should be rejected.

(d) Administration of justice‑‑‑

‑‑‑‑ Several reliefs claimed in the suit‑‑‑Non‑availability of one of those reliefs on account of any technical difficulty‑‑‑Effect‑‑‑Other reliefs, if claimed and available, cannot be disallowed merely on account of the bar, which applied to first relief.

Muhammad Ilyas Hussain v. Cantonment Board, Rawalpindi PLD 1976 SC 785 fol.

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

‑‑‑‑Ss.39, 54, 9 & 42‑‑‑Civil Procedure Code (V of 1908), O. VII, R.11 & O. XXXIX, Rr. 1 & 2‑‑‑Suit for cancellation of gift deed and permanent injunction‑‑‑Suit property owned by defendant was in possession of plaintiffs (his wife and son)‑‑‑Defendant executed gift deed in favour of his brother in respect of suit property‑‑Plaintiffs sought cancellation of gift deed as being invalid due to non‑delivery of possession and prayed for permanent injunction restraining defendants from evicting plaintiffs from the suit property except under due course of law‑‑‑Defendants' application under O.VII, R.11, C.P.C., seeking rejection of plaint for not disclosing cause of action and being barred under Ss.9 & 42 of Specific Relief Act, 1877‑‑‑Validity‑‑‑Plaintiffs in the plaint had not sought any declaration as to any legal character or right to any property‑‑‑Plaintiffs as an ancillary relief had fought a declaration for adjudging gift deed as null and void in the circumstances of case‑‑­Plaintiffs in such circumstances could always approach the Court seeking permanent injunction that they may not be dispossessed which had already been granted to them by Court by way of temporary injunction‑‑­Plaint showed that if gift deed was left as it was, same would cause injury to plaintiffs as on its basis, defendants were seeking to dispossess them‑‑‑Plaint did disclose facts, whereby plaintiffs had a legitimate causes of action seeking cancellation of gift deed‑‑‑Would be futile, at this stage to consider whether on the facts of the case, gift deed could or could not be cancelled, which would, of course, be relevant at the time of final arguments after recording of evidence‑‑‑Declaration might not be granted regarding invalidity of gift deed in terms of first prayer of the plaintiffs‑‑‑Where one of the reliefs claimed in a suit was non‑available on account of any technical difficulty, the other relief, if claimed and available, could not be disallowed merely because of the bar which applied to the first‑‑‑High Court dismissed the application in circumstance.

Munawar Hussain Shah v. Biloria Bi PLD 1978 SC (AJ&K) 33; Muhammad Bashir v. Muhammad Yaqub 1993 CLC 1084; Fazal Ahmed v. Rakhi PLD 1958 Lah. 218; Saida v. Pinnu PLD 1979 SC (AJ&K) 245; Khalida Bibi v. Daryar Khanum 1994 MLD 2339; Sardar Ahmed Khan v. Zamroot Jan PLD 1950 Pesh. 45; Hyderabad Municipal Corporation v. M/s. Fateh Jeans 1991 MLD 284; Sarfaraz Khan v. Abdul Karim 1981 MLD 1230; Sehar Begum v. Salahuddin 1991 MLD 1954 and Muhammad Ilyas Hussain v. Cantonment Board, Rawalpindi PLD 1976 SC 785 ref.

Usman Ghani Rashid for Plaintiffs.

Muneeb Ahmad Khan for Defendants.

Date of hearing: 27th November, 1998.

2003 M L D 19

[Karachi]

Before Muhammad Moosa K. Leghari, J

ABDUL HAMEED and 2 others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 405 of 2002; decided on 5th July, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), 5.302/324/427/148/149‑‑‑Bail‑‑­Accused were arrested on 30‑10‑1999 and since then they were in custody and the trial was not yet concluded‑‑‑Expeditious and fair trial was the fundamental right of the accused‑‑‑Criminal case must be disposed of without unnecessary delay‑‑‑Inordinate delay in imparting justice was likely to cause erosion of public confidence in the judicial system on one hand and on the other hand it was bound to create a sense of helplessness, despair, feelings of frustration and anguish apart from adding to the woes and miseries of the public‑‑Great hardship had been caused to the accused due to inordince a delay in conclusion of the trial in the peculiar circumstances of the case‑‑‑State Counsel had also, in circumstances, rightly conceded to grant of bail to accused‑‑‑Bail was allowed to accused accordingly.

Agha Nazarali v. Emperor AIR 1941 Sindh 186; Emperor v. Muhammad Ibrahim and others AIR 1942 Ca1.219; The Crown v. Piru and another PLD 1955 Sindh 227 and Mian Manzoor Ahmad Wattoo v. State 2000 SCMR 107 ref.

Asif Ali Abdul Razzak Soomro for Applicants.

Muhammad Ismail Bhutto for the State.

2003 M L D 22

[Karachi]

Before Shabbir Ahmed, J

JAVED IQBAL‑‑‑Plaintiff

Versus

PROVINCE OF SINDH through Chief Secretary and 3 other‑‑‑Defendants

Suit No.684 of 1999, decided on 2nd September, 2002.

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

‑‑‑‑O. VI. R.17 & VII, R. 11 ‑‑‑Two applications one for rejection of plaint and the other for amendment of plaint ‑‑‑Pendency of both such applications‑‑‑Former application had to be taken first.

State Life Insurance Corporation v. Ibrahim Management Ltd. 1990 CLC 206 rel.

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

‑‑‑‑O. XXIII. R.1(3)‑‑‑Abandoning claim without permission of Court‑‑‑Effect‑‑‑Once claim in respect of impugned order had been abandoned same could not be re‑agitated by another suit.

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

‑‑‑‑S. 11‑Res judicata, principle of‑‑‑Applicability‑‑‑Essential conditions stated.

In order to press the provisions of section 11, C.P.C. five conditions have to be spelled out (i) the matter directly and substantially in issue in the subsequent suit must be the same matter, which was directly and substantially in issue actually or constructively in former suit, (ii) the former suit must have been a suit between the same parties or between the parties under whom they or any of them claim, (iii) the parties as aforesaid must have litigated under the same title in the former suit, (iv) the Court which decided the former suit must have been a Court competent to try the subsequent suit in which such issue is subsequently raised, and (v) the matter directly or substantially in issue in subsequent suit must have been heard and finally decided by the Court in the first suit.

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

‑‑‑‑O.XXIII, R.1(3)‑‑‑Permission to withdraw suit, grant or refusal of‑‑‑Jurisdiction of Court ‑‑‑Scope‑‑‑‑Court can grant or refuse application for withdrawal of suit with permission to institute a fresh suit‑‑‑Court has no power to grant permission to withdraw and withhold permission to institute a fresh suit.

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

‑‑‑‑Art. 189‑‑‑Contlict between two judgments of Supreme Court‑‑‑View of the larger Bench would prevail.

Muhammad Saleem v. Fazal Ahmad 1997 SCPAR 30; Fazal Muhammad v. Khalid Hussain 1997 SCMR 1368; Muhammad Riasat v. Secretary Education 1997 SCMR 1626 and Badar Shahzad v. Saeed Akbar 1999 SCMR 2518 ref.

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

‑‑‑‑Art. 189‑‑‑Supreme Court can always modify its earlier view‑‑­Particular view taken by a larger Bench later in time would be held as she law declared.

Mirza Mehboob Baig and others v. The Deputy Settlement Commissioner (Land) and others 2002 MLD 1512 ref.

(g) Specific Relief .Act (I of 1877)‑‑‑

‑‑Ss. 12, 42, 54 & 55‑‑‑Civil Procedure Code (V of 1908), O.VII R.11‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XII of 1975), S.2(2) & 5‑‑‑Evacuee Property (Residual Work) Disposal Rules, 1978, Rr.2(u), 5, 6 & 8‑‑‑Suit for specific performance of contract,. declaration, cancellation, damages, mesne profits, permanent and perpetual injunction‑ ‑‑Rejection of plaint ‑‑‑Defendants (vendors were holding 4100 produce index units approve vide Supplementary Appendix dated 20‑8‑1985. which they agreed to sell with allotment orders to plaintiff on 8‑1‑1996 with promise that they would get land approved for remaining P.I.Us.‑‑‑Secretary (RS&FP), Board of Revenue in terms of S.2(2) of Evacuee Property and Displaced Persons (Repeal) Act, 1975 as Notified Officer side order dated 11‑6‑ 1996 allotted some land to vendors‑‑‑Member (RS&EP), Board of Revenue in exercise of suo motu revision‑‑jurisdiction set aside order of the Secretary‑‑­Plaintiff filed suit challenging the vires of order passed by Member. Board of Revenue ‑‑Defendants filed application for rejection of plaint on the ground that plaintiff had no cause of action‑‑‑Validity‑‑‑No right could be claimed on the basis of agreement dated 8‑1‑1996 coupled with irrevocable power of attorney in favour of plaintiff‑‑‑In event of settlement of 4100 P.I.Us. vide Supplementary Appendix dated 20‑8‑1985 and any allotment of land in pursuance thereof after enforcement of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, could not bring present case within the scope of expression "pending proceedings"‑‑‑No superstructure in the shape of right and title could be claimed on an order, which was patently void ab initio and without jurisdiction‑‑‑Since no specific agricultural land or urban property could be allotted to claimant/plaintiff, all that they could claim was cash compensation in respect of produce index units‑‑‑Plaint was rejected for want of cause of action in circumstances.

Syed Saifullah v. Board of Revenue, Balochistan 1991 SCMR 1255; Nawabdin v. Member, Board of Revenue PLD 1979 SC 846; Muhammad Ramzan v. Member, Revenue CSS and others 1997 SCMR 1635; Syed Saifullah v. Board of Revenue 1991 SCMR 1225; Member, Board of Revenue v. Muhammad Mustafa and others 1993 SCMR 723 and Ali Muhammad and others v. Chief Settlement Commissioner and others 2001 SCMR 1822 ref.

(h) Void order‑‑‑

‑‑‑‑ No superstructure in the shape of right and title could be claimed on an order, which was patently void ab initio and without jurisdiction.

Mirza Adil Baig for Plaintiff.

Ms. Sana Minhas for Defendants with Abbas Ali, Addl. A.‑G.

2003 M L D 39

[Karachi]

Before Zahid Kurban Alvi, J

Mst. SABIRA KHATOON and 2 others‑‑‑Plaintiffs

Versus

MUHAMMAD AKRAM SIDDIQUI and 2 others‑‑‑Respondents

Suit No.652 of 1987, decided on 19th February, 1999.

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

‑‑‑‑S.1‑‑‑Death by rash and negligent driving of vehicle by defendant (driver)‑‑‑Admission of accident by defendant‑‑‑Effect‑‑‑Presumption of negligence would arise in such case‑‑‑Where defendant gave his own version of accident, which was different from version of plaintiff then defendant took upon himself the burden to prove the manner of accident pleaded by him‑‑‑Defendant in such case had to show that he had been cautious enough to take care of deceased/victim of accident.

Mst. Sakina v. NLC 1995 MLD 633; Anisur Rehman v. Government of Sindh 1997 CLC 615; Spingul v. Ikramul Haque 1987 MLD 2402; Hayat Services Ltd. v. Kandan 1989 CLC 2153; Pakistan Steel Mills v. Malik Habib` 1993 SCMR 848; Messrs Nimi Frances v. Muhammad Saeed Qureshi 1982 CLC 1703; Muhammad Athar Hussain v. Trustee of Port of Karachi 1998 CLC 633; Mrs. Gul Bano v. Muhammad Ramzan 1982 CLC 1120; Mst. Zaibunnisa v. S.R.T.C. 1982 CLC 1228; Roshan Bai v. Pakistan Steel Mills 2000 CLC 111 and Nisar Ahmed v. Hospital Supply Corporation 1999 MLD 13 ref.

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

‑‑‑‑S.1‑‑‑Death due to rash and negligent driving of vehicle‑‑‑Plea of contributory negligence‑‑‑Non‑examination of defendant (driver), and withholding such best evidence‑‑‑Effect‑‑‑Oral evidence led by plaintiffs on material part of negligence‑and its consequences almost remained un­rebutted and uncontroverted‑‑‑Plaintiff through oral and documentary evidence had discharged their initial burden and made out a prima facie case by supporting the contents of plaint‑‑‑Defendants having imputed negligence in their written statement to deceased had taken upon themselves burden to disprove their negligence and use of care and a caution in operating vehicle‑‑‑Defendant (driver) was not examined without any justification‑‑‑Withholding of such best/primary evidence in fatal accident cases was always considered a prime factor in raising adverse inference against defendants on issue of negligence‑‑‑Defendants had failed to prove contributory negligence on the part of deceased by leading evidence to that effect‑‑‑In absence of such evidence, inference could safely be raised that defendant (driver) was negligent in driving and causing fatal accident leading to death of deceased‑‑‑Defendants had not led any evidence to rebut the case set up by plaintiffs, as such same would be deemed to remain uncontroverted‑‑‑Version of plaintiffs on the point of negligence was accepted as true and correct in circumstances.

1988 CLC 2063; 1987 CLC 933; 1988 MLD 2447; 1995 CLC 1714 and PLD 1965 Kar. 127 rel.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑Art.133‑‑‑Omission to cross‑examine witness on a material part of his evidence‑‑‑Effect‑‑‑Such omission would give rise to inference that truth of evidence of such witness had been accepted‑‑‑Such unchallenged statement of witness should be given full credit and usually accepted, unless displaced by reliable, cogent, and clear evidence.

1991 SCMR 2300; 1997 MLD 2013; 1988 MLD 1651 and 1997 CLC 1617 ref.

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

‑‑‑‑O.VI, R.1‑‑‑Pleadings, averments in‑‑‑Evidentiary value‑‑‑Mere averments in pleadings were of no value and could not be relied upon, unless proved by cogent evidence.

1986 MLD 1613; 1988 MLD 1122 and 1988 MLD 1651 rel.

(e) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.133‑‑‑Evidence on oath‑‑‑Such evidence should be controverted/contradicted only by statement on oath in order to analyse the comparative value of the evidence.

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

‑‑‑‑S.1‑‑‑Death due to rash and negligent driving of vehicle‑‑‑Plea of contributory negligence‑‑‑Burden of proof‑‑‑Plea of contributory negligence would give rise to a question of fact, which should be proved by party alleging same.

1996 SCMR 406 rel.

Nasir Maqsood for Appellant.

Naeem Ahmed for Respondents.

2003 M L D 61

[Karachi]

Before Mushir Alam, J

AKHTAR NAWAZ‑‑‑Applicant

Versus

Mrs. SANJEEDA KHATOON‑‑‑Respondent

Revision Application No.24 of 2000, heard on 1st October, 2001.

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

‑‑‑‑O.XLI, R.27 & S.115‑‑‑Additional evidence‑‑‑Application for production of document as additional evidence ‑‑‑Maintainability‑‑­Provision of O. XLI, R 27, C.P.C., could not be invoked at revisional stage, but only question relating to jurisdictional error committed by Courts below would be relevant consideration‑‑‑Evidence or additional evidence could only be produced under given circumstances before Trial and Appellate Courts‑‑‑Additional evidence could not be allowed mechanically‑‑‑Case of petitioner was not that evidence produced by him had not been considered or he had been shunted from producing any evidence‑‑‑Application for additional evidence at revisional stage was misconceived‑‑‑High Court dismissed such application.

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

‑‑‑‑S.5 & Sched.‑‑‑Civil Procedure Code (V of 1908), S.115 & O.IX, R. 6‑‑‑Suit for recovery of money by ex‑husband against ex‑wife after obtained decree for dissolution of marriage on ground of Khula' Petitioner's plea was that he had remitted a sum of Rs.60,000 as loan on desire of respondent; and that after having learnt that she had obtained Khula' he demanded refund thereof, but finally filed suit‑‑‑Suit was proceeded ex parte, but Trial Court not being satisfied with case set up by petitioner dismissed the suit‑‑‑Appellate Court dismissed appeal filed by petitioner‑‑‑Contention of petitioner was that since ex parte proof filed by him had gone unrebutted, Courts below ought to have decree; the suit‑‑‑Validity‑‑‑Such contention was wholly misconceived as plaintiff in order to succeed in a case had to stand on his own legs and not to red on weakness of the other side‑‑‑Wholly improbable that a person, who had received a notice of dissolution of marriage lent sum of Rs.60,000 to his ex‑wife‑‑‑Not appealing to mind that respondent after three months of passing of decree for dissolution of her marriage by way of Khula would barrow any amount from a person against whom she harboured hatred on account of torture, lack of mutual trust and love and who had levelled allegations of adultery against her‑‑‑Petitioner had neither denied such allegations made in suit for dissolution of marriage nor had made any effort to have the decree of Khula set aside even after he learn about same‑‑‑Such circumstances cast serious doubt on veracity of petitioner's claim‑‑‑Findings of Appellate Court that present suit appeared to have been filed to take revenge from respondent for staining Khula' from Court of law could not be brushed aside Petitioner had filed suit merely six days short of limitation‑‑‑Not established on record that such amount was a loan‑‑‑Address of respondent given in plaint did not correspond to her address shown in Bank Certificate filed with plaint‑‑‑Neither before Trial Court, Appellate Court or in the High Court, petitioner had made any effort to have respondent served at address given in such Bank Certificate or at address given in suit for dissolution of marriage filed by her­---Such conduct of petitioner indeed rang bell of caution‑‑‑Court below had exercised great caution and care in the case‑‑‑No error in exercise of jurisdiction by Courts below was pointed out by petitioner‑‑‑High Court dismissed revision petition in circumstance.

Saheb Khan through Legal Heirs v. Muhammad Pannah PLD 1994 SC 162; Evacuee Trust Property Board through Assistant Director Evacuee Trust Properties, Gujrat v. Muhammad Siddique alias Bandoo and others 1995 SCMR 1748; Riasat Ali v. Muhammad Jaffar Khan and others 1991 SCMR 496; Jan Muhammad Khan v. Shah Mir Hussain and others 1985 SCMR 2029; Aziz Ahmed and others v. Mst. Hajran Bibi and another 1987 SCMR 527 and Makhmad and another v. Shadi Khan through his Legal Heirs 1986 SCMR 1018 ref.

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

‑‑‑‑O.IX, R.6‑‑‑Ex parte proceedings‑‑‑Duty of Court while passing ex parte judgment or decree‑‑‑Guidelines stated.

Courts while passing ex parte judgment or decree against absenting party are expected to exercise great caution, as it is not very uncommon in this morally deteriorated society to obtain orders by misrepresentation and suppression.

In ex parte proceedings Courts are cautious and careful, while taking into consideration the claim put forward by a party and evidence adduced in support of such claim. Courts of law are not expected to pronounce judgment and decree merely because a party to proceedings has remained absent or matter is ex paste. One cannot rule out the possibility of malicious and ill‑founded claim as it is not very uncommon that process of Courts are abused to vindicate personal ego.

(d) Administration of justice‑‑‑

‑‑‑‑ Plaintiff in order to succeed in a case has to stand on his own legs and not to rely on the weakness of other side.

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

‑‑‑‑S.115‑‑‑Jurisdiction of revisional Court ‑‑‑Scope‑‑‑Revisional Court has jurisdiction to correct error resulting from non‑reading, misreading of evidence or where Courts below failed to exercise jurisdiction vested in them.

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

‑‑‑‑S.115 & O.XLI, R.33‑‑‑Powers of Revisional and Appellate Court‑‑­Scope‑‑‑Two views possible on the basis of evident‑material placed before Courts below ‑‑‑Revisional Court or for the matter even Appellate Court would not interfere with finding of fact and substitute its own opinion in absence of any compelling reason for the same.

Anwar Hussain for Applicant.

Nemo for Respondent.

Date of hearing: 1st October, 2001.

2003 M L D 79

[Karachi]

Before Anwar Zaheer Jamali and Syed Zawwar Hussain Jaffery, JJ

MUHAMMAD NAWAZ alias DENO and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.D‑817 of 2001, decided on 24th January, 2001.

(a) Criminal trial‑‑‑

‑‑‑‑No universal rule of application‑‑‑In criminal cases there is no universal rule of application which can be applied to every case, as it will be the facts, circumstances and merits of each case which will determine its fate.

PLD 1978 SC 236 and PLD 1987 SC 467 ref.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149/114‑‑‑Bail‑‑­Bail was sought on the sole ground that the direction contained in the High Court's order passed on the previous bail application of accused for disposal of their case within two months had not been complied with by the Trial Court and such failure of Trial Court had entitled them for grant of bail‑‑‑High Court clarified that indulgence shown by superior Courts by issuance of such directions for the Trial Court to conclude cases within some specified period were only meant/aimed to expedite proceedings of the case against the accused and not to arm them with so­ called new ground for bail in case of non‑compliance of such directions as such a concept was totally alien to any statutory provision‑‑‑Accused had been charged for offences under Ss.302 & 324, P.P.C. and even two years had not expired as yet‑‑‑Trial Court with all sincere efforts was trying to dispose of the case expeditiously‑‑‑Bail was refused to accused in circumstances.

Gul Hassan Pehyar v. The State 1997 SCMR 390; Jadeed Gul v. The State 1998 SCMR 1124; Muhammad Aslam v. The State 1999 SCMR 2147; Liaquat Ali v. The State 2000 PCr.LJ 1317; The State v. The Zubair and 4 others PLD 1986 SC 1731; PLD 1978 SC 236 and PLD 1987 SC 467 ref.

Muhammad Ayaz Soomro for Applicants.

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

Date of hearing: 24th January, 2002.

2003 M L D 106

[Karachi]

Before Amir Hani Muslim, J

FEROZ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1064 of 2002, decided on 4th September, 2002.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.392/411/34‑‑‑Bail‑‑‑Non­mentioning of the name of accused in the F.I.R. in dacoity matters was immaterial‑‑‑Recovery of the articles mentioned in the F.I.R. had been effected from the accused which had been identified by the complainant‑‑‑No explanation of the ‑aid recovery had been offered by the accused‑‑‑No allegation of any previous enmity of the accused either with the police or with the complainant was available on record‑‑­Deeper evaluation of the material against the accused could not be made in bail matter‑‑‑Bail was declined to accused in circumstances.

1997 SCMR 412, 2000 PCr. LJ 773 (sic) and 1997 PCr.LJ 330 (sic) distinguished.

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

‑‑Ss.497/498‑‑‑Bail‑‑‑Assessment of evidence‑‑‑Principle‑‑‑Court in bait matters do not evaluate the material against the accused in depth which is the function of Trial Court.

Syed Mujahid Hussain for Applicant.

Javed Akhtar for the State.

2003 M L D 125

[Karachi]

Before Ghulam Rabbani, J

BHOORO and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 136 of 2002, decided on 17th July, 2002.

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

‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/324/147/148/149/504/337‑A (1)/337‑F(1)‑‑‑Bail‑‑‑During the first incident taking place in the earlier part of the day the complainant party was issued threats of dire consequences by the accused and in the second incident which took place on the same day in the evening all the culprits including the accused had allegedly arrived at the scene of occurrence duly armed with hatchets and caused injuries to the complainant party including the complainant as a result whereof one of them lost his life‑‑‑Accused had caused injuries to the injured persons in such a manner that gravity of their wrongful acts could not be lost sight of, although the injuries attributed to them have been declared to constitute offences punishable for not more than seven years‑‑‑Reasonable grounds were, prima facie, available to connect the accused with the commission of the offences alleged against them‑‑‑Accused were refused bail in circumstances.

Muhammad Afsar v. The State 1994 SCMR 2051; Mumtaz Hussain and 5 others v. The State 1996 SCMR 1125; Muhammad Aslam and another v. The State through A.‑G., Punjab and another 1997 SCMR 251; Jan Muhammad v. Haji Noor Jamal 1998 SCMR 500; Faraz Akram v. The State 1999 SCMR 1360; Saleem Khan v. The State 1999 PCr.LJ 140; Shafi Muhammad v. The State 1999 PCr.LJ 890; Allah Dino v. The state 1999 YLR 1930; Lakha Dino v. The State 2002 MLD 610; Allah Rakha v. The State 2002 PCr.LJ 1031; Nazar Muhammad v. The State and another PLD 1978 SC 236; Lal Muhammad v. The State 1990 SCMR 315; Dilbar Baig v. The State 1998 SCMR 358; Qadar Mand v. Muhammad Amroze and 4 others .1998 SCMR 496; Ainullah v. Nazool and another 1999 YLR 1303; Tabbasam Ahmed Qureshi v. The State 2000 PCr.L1 105; Khadim Hussain and 5 others v. Sher Afzal and others 2000 PCr.LJ 974; Ghulam Nabi v. The State 1996 SCMR 1023; Arshad v: The State and another. 1996 SCMR 1270; Hashim and 2 others v. The State 1996 PCr.LJ 1681.and Akhtar Hussain v. The State 2000 PCr.LJ 315 ref.

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

‑‑‑‑S.497‑‑‑Bail in cases not falling within the prohibitory clause of S.497, Cr.P.C.‑‑‑Principle‑‑‑Grant of bail in each and every case not punishable with death or imprisonment for life or for ten years without considering the gravity of the offence is not a rule of law.

Tubbasam Ahmed Qureshi v. The State 2000 PCr.LJ 105 ref.

Allah Bachayo Soomro for Applicants.

Mashooq Ali Samo, Asstt. A‑G., Sindh for the State.

Faiz Muhammad Qureshi for the Complainant.

Date of hearing: 17th July, 2002.

2003 M L D 154

[Karachi]

Before S. Ali Aslam Jafri, J

GUL MUHAMMAD and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.319 and Miscellaneous Applications Nos. 950 to 952 of 2002, decided on 16th July, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail‑‑‑Only evidence against the accused was that the deceased was last seen in their company‑‑‑Accused were continuously in custody for more than 2‑1/2 years and despite direction of the High Court, Trial Court had not been able to examine the three material witnesses within the specified period of two months‑‑‑Delay in disposal of case being shocking and scandalous, bail was granted to accused in circumstances.

Gul Hassan Panhiyar v. The State 1997 SCMR 390; Manzoor Khan v. Kamir and 4 others 1972 SCMR 207; Muhammad Sadiq v. Muhammad Shafi and another 1973 SCMR 212; Sherzaman v. Muhammad Azad and another 1978 SCMR 248 and Khalid v. The State 1994 PCr.LJ 12 ref.

Manzoor Hussain Ansari for Applicants.

G.D. Shahani, Addl. A‑G. for the State.

2003 M L D 165

[Karachi]

Before Muhammad Roshan Essani, Actg. CJ

MUHAMMAD ASHRAF‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Bail No.914 of 2002, decided on 30th July, 2002.

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

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.419/420/468/471/109‑‑­Foreigners Act (XXXI of 1946), Ss. 3(2)(a)(b)/13/14‑‑‑Bail‑‑‑Accused having been charged under different provisions of two different statutes of similar nature was to be tried under the statute which entailed lesser punishment‑‑‑Section 419 & 420, P.P.C. were bailable whereas Ss.468 & 471, P.P.C. were non‑cognizable ‑‑‑Accused was not alleged to have prepared fake and forged passport and he was no more required for investigation‑‑‑Case of accused requiring further enquiry as envisaged by S.497(2), Cr.P.C., accused was admitted to bail in circumstances.

Faiz Muhammad v. The State Criminal Bail Application No. 175 of 2002 ref.

(b) Criminal trial‑‑‑

‑‑‑‑ Accused charged under two different statutes‑‑‑Principle‑‑‑Where the offences punishable under different statutes are of similar nature; the accused shall be tried under the Statute which entails lesser punishment.

Faiz Muhammad v. The State Criminal Bail Application No.175 of 2002 ref.

Mr. Rasheed for Applicant.

Ziauddin Ansari, Standing Counsel.

2003 M L D 171

[Karachi]

Before Muhammad Roshan Essani, J

TALIB HUSSAIN ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.323 and Miscellaneous Applications Nos.965 and 966 of 2002, decided on 23rd July, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/324/147/148/149‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑Bail‑‑‑Source of light, names of accused with the role played by each of them and the motive for the commission of the offence were all mentioned in the promptly lodged F.I.R.‑‑Parties being already known to each other mistaken identity of accused was out of question‑‑‑Sin of the deceased only was that she had gone with her father after an order passed by High Court in the habeas corpus petition and subsequently due to the miseries suffered by her at the hands of her husband she had filed a suit for dissolution of marriage which was taken by accused as their insult and in order to avenge they formed an unlawful assembly and killed her after entering into her house‑‑‑Bail was refused to accused in circumstances.

Haji Shafi Muhammad Chandio for Applicant.

Ghulam Sarwar Korai on behalf of Addl. A.‑G. for the State.

2003 M L D 178

[Karachi]

Before Shabbir Ahmed, J

ABDUL RAHIM KHAN‑‑‑Applicant

Versus

ASIF ALI and others‑‑‑Respondents

Civil Revision No.S‑10 of 1999, heard on 24th August, 2000.

(a) Islamic Law ‑‑‑

‑‑‑‑Pre‑emption‑‑‑Suit for pre‑emption by Muslim in respect of sale by Muslim vendor to Hindu vendee ‑‑‑Maintainability‑‑‑Not necessary for enforcing claim of pre‑emption that both pre‑emptor and vendee should be, Muslims‑‑‑Right of pre‑emption being in the nature of legal survitude running with land, which could be enforced against property in whosever and same might be‑‑‑Muslim pre‑emptor could enforce claim for pre‑emption against Hindu vendee in respect of sale by Muslim vendor.

Sundri Bai v. Ghulam Hussain 1982 CLC 2241 fol.

(b) Islamic Law ‑‑‑

‑‑‑‑Pre‑emption‑‑‑Right of pre‑emption under Islamic Law partakes strongly of the nature of an easement right, the "dominant tenement" and "servient tenement" of the law of easement being analogous to pre­-emptional tenement.

(c) Pre‑emption‑‑‑

‑‑‑‑Right of‑‑‑Not a personal right‑‑‑Same being in the nature of a limitation on the power of vendor enforceable on sale, which is a condition precedent not for existence of right, but to its enforceability.

(d) Pre‑emption‑‑‑

‑‑‑‑ Right of‑‑‑Not a right of re‑purchase from vendor or from vendee, but simply a right of substitution entitling pre‑emption by reason of a legal incident to which sale itself was subject to stand in the shoes of vendee in respect of all the rights and obligations ensuing from the sale.

(e) Islamic Law ‑‑‑

‑‑‑‑Pre‑emption‑‑‑Suit for pre‑emption by Muslim in respect of sale by Hindu vendor to Muslim vendee ‑‑‑Maintainability‑‑‑Right of pre‑emption could be enforced on sale by a vendor, who was subject to Muslim Personal Law‑‑‑Hindu vendor could not be subjected to Muslim Personal Law and property owned by him could not be said to be having inherent right of pre‑emption ‑‑‑Where vendor was Hindu, then suit to enforce a right of pre‑emption founded upon Islamic Law ‑could not be maintainable.

Sundri Bai v. Ghulam Hussain 1982 CLC 2241; Govind Dayal v. Inayatullah ILR 7 All. 775; Shri Audh Behari Singh v. Gajadhar Jaipuria and others AIR 1954 SC 417 and Shaikh Qudratullah v. Mohni Mohan 4 BLR 134 ref.

Allah Bux v. Jano and others PLD 1982 Kar 317 fol.

Abdul Qadir Abro for Applicant.

Ahmed Ali and M. Shaikh for Respondents.

Illahi Bux Kehar: Amicus curiae.

Date of hearing: 24th August, 2000.

2003 M L D 194

[Karachi]

Before S.A. Sarwana and Muhammad Mujeebullah Siddiqui, JJ

ABDUL MAJID‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.643 of 2002, decided on 22nd June, 2002.

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

‑‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.420, 468, 471 & 34‑‑‑Bail, ,,rant of‑‑‑Property mortgaged with Bank by accused had already been sold‑‑‑Plea of accused was that F.I.R. was lodged in 1999 in respect of alleged offence committed in 1992, thus there was inordinate delay; that he was an old person of 65 years age and was a diabetic patient‑‑­Validity‑‑‑Accused had mortgaged property showing same to be owned by him, although same had already been sold‑‑‑Accused in such circumstances could not allege that he was not aware about sale of property and there was no mens rea on his part when he had offered fake documents for mortgage of property for availing loan facility‑‑‑White collar crimes could not be equated with ordinary crimes of theft or injury as white collar crimes were directed against society at large and had affected entire society‑‑‑Accused had not denied commission of offence‑‑‑Trial Court after recording of evidence would decide as to what was the gravity of offence and what would be the proper order to be made‑‑‑Present case was not a case of further enquiry as envisaged under S.497(2). Cr.P.C.‑‑‑Accused was not entitled to bail merely because he was suffering from diabetes‑‑‑High Court dismissed bail application in circumstances.

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

‑‑‑‑‑S. 497(2)‑‑‑Bail, grant of‑‑‑Condition precedent ‑‑‑Court should first come to the conclusion that there are no reasonable grounds to believe that accused has committed an offence and thereafter bail can be granted instead of releasing him on ground that there are further grounds for inquiry.

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

‑‑‑‑‑S. 497‑‑‑Bail, grant of‑‑‑Ground of illness of accused ‑‑‑Validity‑‑­Accused could be granted bail on such ground, if nature of his illness was such that same might be detrimental to his life and his treatment in jail was not possible.

Ms. Salima Nasiruddin for Applicant.

Khurshid A. Hashmi, Dy. A.‑G.

Date of hearing: 6th June, 2002.

2003 M L D 205

[Karachi]

Before Amir Hani Muslim, J

Messrs SOCIETY OIL DEALERS, KARACHI ‑‑‑Petitioner

Versus

DISTRICT JUDGE, KARACHI and another‑‑‑Respondents

Constitutional Petition No.S‑529 and Civil Miscellaneous No.665 of 2002, decided on 5th September, 2002.

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

‑‑‑‑O.VIII, R.1‑‑‑Defendant not appearing in witness‑boa‑‑‑Written statement by such defendant‑‑‑Worth‑‑‑Such written statement being of no value, contents thereof ought to be ignored‑‑‑Defence based on such written statement could not be looked into as defendant had failed to place his defence before Court.

Mst. Khair‑ul‑Nisa and 6 others v. Malik Muhammad Ishaque and‑2 others PLD 1972 SC 25 and Malik Muhammad Ishaque v, Messrs Erose Theatre and others OLD 1977 SC 109 rel.

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

‑‑‑‑O.VI, R.1‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.2(c)‑‑‑Pleadings‑‑­Evidentiary value‑‑‑Pleadings of parties cannot be equated to evidence.

Malik Muhammad Ishaque v. Messrs Erose Theatre Ad others PLD 1977 SC 109 rel.

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

‑‑‑Ss. 15(vii) & 2(f)‑‑‑Civil Procedure Code (V of 1908), O.VIII, R.1‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Requirement of premises for personal bona fide use ‑‑‑Respondent filed her affidavit‑in‑evidence and was cross‑examined‑‑‑Petitioner filed his written statement and affidavit‑in‑evidence, but did not appear in witness‑box‑‑‑Rent Controller dismissed ejectment petition on the ground that relationship of landlord and tenant did not exist between parties; and ejectment petition by respondent was a mala fide attempt to eject petitioner as earlier ejectment petition filed by her brother against petitioner had failed‑‑‑Appellate Court accepted appeal of respondent and set aside findings of Rent Controller‑‑‑Validity‑‑‑Rent Controller had erroneously taken note of earlier ejectment proceedings initiated on distinct ground by brother of petitioner‑‑‑Petitioner, after filing written statement and affidavit‑in‑evidence, had avoided/failed to appear in witness‑box, thus, he failed to put his defence before Court‑‑‑Defence based on such written statement could not be looked into‑‑‑Petitioner in cross‑examination had not put a single question to respondent in regard to her status either as "landlord" or "owner"‑‑‑No misreading of evidence was found‑‑‑Findings of Appellate Court were in accordance with law and principles laid down by Supreme Court‑‑‑High Court in exercise of Constitutional jurisdiction could not interfere in matters of such nature nor could determine the status of respondent, which ex facie was a question of fact‑‑‑Word "landlord" as defined in S.2(f) of Sindh Rented Premises Ordinance, 1979 also included "owner" ‑‑‑Version of respondent in regard to personal requirement was not only consistent with averments made in ejectment petition, but same had not been shaken by petitioner in cross‑examination‑‑‑High Court dismissed Constitutional petition in circumstances.

1990 MLD 1009; PLD 1993 Kar. 300; 1994 CLC 1982; 2001 SCMR 338; 2000 CLC 1206; 2000 SCMR 1292 and 1997 SCMR 1062 ref.

Partab Rai for Petitioner.

Rashid Anwer for Respondent No.2.

Dates of hearing: 4th and 5th September, 2002.

2003 M L D 279

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Azizullah M. Memon, JJ

PLATINUM COMMERCIAL BANK LTD. ‑‑‑Petitioner

versus

GOVERNMENT OF SINDH through the Secretary, Sindh Secretariat, Karachi and another-‑‑Respondents

Constitutional Petition No.D‑2239 of 2001, decided on 27th September, 2002.

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

‑‑‑Ss.2(c), 3(3) & 14‑--Constitution of Pakistan (1973), Art. 199‑‑‑ Constitutional petition‑‑‑Outstanding property tax payable by owner‑‑­Demand of such tax from previous tenant of the premises (petitioner) ‑‑­Validity‑‑‑Vacation of premises by petitioner was itself indicative of the fact of his not being a lessee in perpetuity‑‑‑Authority not in possession of any material to establish that. petitioner was in arrears of any amount payable to owner or was liable to' pay any future rent to the owner‑‑‑In absence of such material, authority had no sanction in law to demand from petitioner outstanding property tax, which in law was payable by owner‑‑‑Authority had no jurisdiction to issue impugned notice‑‑‑High Court accepted Constitutional petition being maintainable and struck off impugned notice.

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

‑‑‑‑Art.l99‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Constitutional petition would always be maintainable to assail initiation of proceedings palpably without jurisdiction, for simple reason that when foundation itself was not available, there was no question of erecting any edifice on the same‑‑‑Objection as to maintainability of Constitutional petition could be taken in cases, where action initiated was shown to be with jurisdiction and permissible within parameters of law.

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

‑‑‑‑S.3(3)‑‑‑Property tax, recovery of‑‑‑Liability of tenant to pay arrears of rent and future rent to Authority‑‑‑Essential conditions‑‑‑Effect of payment of tax by tenant on his liability towards landlord‑‑‑Principles stated.

Under section 3 of West Pakistan Urban Immovable Property Tax Act, 1958, property tax can be levied on owner and none else. Iris only in the matter of recovery of tax that a provision has been made to the effect that if the premises is in possession of tenant and he is in arrears of rent due and payable to owner or a tenant is required to pay any future rent, then only the property, tax being Government revenue, shall have first charge, and in such eventuality, the tenant shall be bound to pay arrears of rent and future rent to Property Tax Authorities, who shall step into the shoes of owner for purpose of recovery of outstanding tax. The payment of such tax under Urban Immovable Property Tax Act shall be deemed to be valid discharge of liability of tenant towards landlord and he shall not be held to be a defaulter.

M. Saddiq Khan for Petitioner.

Suleman Habibullah,. A.A.‑G. for Respondents.

Date of hearing: 27th September, 2002.

2003 M L D 308

[Karachi]

Before Zia Perwez, J

NAZZAZ ALI ‑‑‑Plaintiff

versus

CONTROLLER OF BUILDINGS K.B.C.A.‑‑‑Respondent

Suit No.508 of 2000, decided on 16th September, 2002.

Sindh Chief Court Rules (O.S.)‑‑‑

‑‑‑ 1.14(2)‑‑‑Civil Procedure Code (V of 108), Ss.96 & 104‑‑Sindh Buildings Control Ordinance (V of 1979), S.6‑‑‑Stranger to suit or proceedings‑‑‑Certified copy of judgment and decree, grant of‑‑­Requirements‑‑‑Applicant claiming to be resident of the concerned Co­operative Housing Society for purpose of filing, an appeal against judgment and decree applied for obtaining certified copies thereof‑‑­Plaintiff's objection was that he had acquired vested right after the order had attained finality, which could not be disturbed; and that applicant had not disclosed the nature of his interest in subject‑matter of the suit‑‑­Validity‑‑‑Applicant was only required to show that he was permanent resident of the area, which followed existence of his right‑‑‑Questions of finality of order, vested rights of plaintiff and maintainability of appeal were the questions to be considered and decided by Appellate Court‑‑­Not appropriate for Court while dealing with application for grant of certified copies to examine the details and merits of appeal proposed to be filed‑‑‑Applicant had made out a prima facie case for grant of certified copies‑‑‑Application was allowed accordingly.

Suleman Mala v. Karachi Building Control Authority 1990 CLC 448 fol.

Mirpurkhas Sugar Mills Ltd. v. Consolidated Sugar Mills Ltd. PLD 1987 Kar. 225 and Fazal Din v. Lahore Improvement Trust, Lahore PLD 1969 SC 223 and H.M. Saya & Co. v. Wazir Ali Industries Ltd. PLD 1969 SC 65 ref.

H.A. Rehmani for Plaintiff.

Naeem‑ur‑Rehman for Applicant.

2003 M L D 319

[Karachi]

Before Wahid Bux Brohi, J

MUHAMMAD YASEEN SIDDIQUI‑‑‑Plaintiff

versus

TAHSEEN JAWAID SIDDIQUI‑‑‑Defendant

Suit No. 317 of 2000, decided on 25th July, 2002. .

(a) Benami transaction‑‑‑

‑‑‑‑ Plaintiff (father) claimed that he was real owner of suit property and defendant (his son) was an ostensible/benami owner‑‑‑Defendant's plea was that plaintiff had orally gifted him the suit property‑‑‑Validity‑‑‑Such plea would legally amount to an admission by defendant that his father (plaintiff) at the time of oral gift was real owner and as such was capable of gifting his property to his son (defendant) ‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.30.

(b) Power of attorney‑‑‑

‑‑‑‑ Special power of attorney executed in U.S.A. was neither a registered document not duly attested by Embassy of Pakistan or concerned Consulate in U.S.A.‑‑‑Such paper was worthless document and would hardly create an authority.

S.M. Khalil v. Biswanath Basak 1971 DLC (Rev.) 62 rel.

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

‑‑‑‑OXIII, R.1‑‑‑Written statement, wherein plea of oral gift was raised‑‑‑Not .signed by defendant himself, but was signed by a person not having a legal and valid power of attorney‑‑‑Defendant never made an attempt to rectify such irregularity‑‑‑Such written statement would be of no legal value.

(d) Islamic Law‑‑‑

‑‑‑‑Gift‑‑‑Proof, inevitable and predominant requirement for‑‑‑Person deriving title through gift should lead formidable evidence to establish that owner of property offered the same to him and the latter accepted the same; and transaction was solemnized and completed by way of delivery of possession.

(e) Benami transaction‑‑‑

‑‑‑‑ Plaintiff (father) claimed to be real owner of property and defendant ,his son) was an ostensible owner‑‑‑Defendant's plea was that plaintiff had orally gifted property to him in presence of his mother and two sisters‑‑‑Neither donee nor donor entered in witness‑box to give evidence about gift nor witnesses cited by defendant had ever turned up‑‑‑Sole witness examined on the side of defendant was not in picture at the time of alleged oral gift‑‑‑No tangible evidence on record to prove essential constituent factors of a gift‑‑‑Purchase of plot by plaintiff with his own funds and incoming expenses of construction from his own source was proved on record‑‑‑Lease deed executed by plaintiff in favour of defendant in respect of suit property had come through witness of plaintiff leading to inference of benami transaction in his favour‑‑‑Motive of benami transaction was the love and affection between the parties‑‑­Both parties were residing out of Pakistan‑‑‑Property was in possession of brother of plaintiff and uncle of defendant, as caretaker on ground floor‑‑‑Defendant's witness had claimed that he was residing there with permission of defendant, but had also admitted that whenever plaintiff came to Pakistan, be stayed there without any objection‑‑‑Essential ingredients of benami transaction were made out‑‑‑Suit was decreed accordingly.

Abdul Rahim v. Jannatay Bibi 2000 SCMR 346 and Siraj Din v. Jamilan PLD 1997 Lah. 633 ref.

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

‑‑‑Ss.42, 54 & 55‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.42‑‑‑Suit for declaration, permanent and mandatory injunction‑‑­Benami transaction‑‑ ‑Plaintiff sought declaration to the effect that he was real owner of the property and that defendant was ostensible owner thereof=‑‑Plaintiff also prayed for grant of mandatory injunction directing defendant to execute declaration of oral gift before Sub‑Registrar in respect of suit property‑‑‑Court decreed the suit, but declined to grant such relief of mandatory injunction in view of having granted to plaintiff declaration as to his title‑‑‑Court also. observed that defendant would be at liberty to enjoy the property and effect mutation in relevant records on the basis of title.

(g) Benami transaction‑‑‑

‑‑Benami nature of transaction‑‑‑Criteria for determination stated.

Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 fol.

(h) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑Art.30‑‑‑Admission‑‑‑Sole witness examined on behalf of defendant had no valid power of attorney and thus could not make admission‑binding defendant.

Jawaid Mussarat for Plaintiff.

Shahenshah Hussain for Defendant.

2003 M L D 480

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

SAIFULLAH‑‑‑Petitioner

Versus

MUHAMMAD BUX and 2 others‑‑‑ Respondents

Constitutional Petition No.S.192 of 2002, decided on 16th December, 2002.

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

‑‑‑‑S.18-‑‑Interpretation and scope of S.18, Sindh Rented Premises Ordinance, 1979‑‑‑Stricto senso compliance of the service of notice by registered post A/D, under S.18 is not required ‑‑‑Principles‑‑‑[Philomena Mathew v. Mrs. Abida Riasat 1993 CLC 2307 dissented from].

If the tenant of the previous owner is informed by the subsequent owner or landlord of the transfer of the premises, then the purpose of section 18 is served and from the date of such notice the tenant shall be duty bound to pay the rent to the new landlord and in the case of non‑payment shall be held to be defaulter.

The stricto senso compliance of the service of notice by registered post A/D, under section 18 of Sindh Rented Premises Ordinance, 1979 is not required. If the tenant has been made sufficiently aware of the transfer of property by the previous owner, the tenant shall be protected from being declared defaulter till the date of sufficient notice to him only and thereafter no protection shall be available to the tenant.

Philomena Mathew v. Mrs. Abida Riasat 1993 CLC 2307 dissented from.

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

‑‑‑‑S.18‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Contention of the petitioner was that both the Courts of Rent Controller and the District Judge had not properly appreciated the evidence‑‑‑Validity‑‑‑Question pertaining to application of facts could not be resorted to, in exercise of Constitutional jurisdiction by High Court, for the simple reason that in doing so the Constitutional petition shall be converted into a revision or second appeal and restricting the finality pertaining to the rent matters to first appeal shall stand frustrated‑‑‑Constitutional petition being not a substitute either for revision or the second appeal, Constitutional petition shall be entertained if a case was made out to the effect that the Rent Controller and First Appellate Authority had made an error palpably without jurisdiction or, there was case of lack of jurisdiction or the finding was so perverse, that it was not sustainable on the established principles of the appreciation of evidence, or any specific provisions of law had been violated‑‑­Constitutional petition, in rent matters and in all such cases in which no second appeal or revision was provided in law, shall not be entertained, until and unless there was a jurisdictional error committed by the Courts below‑‑‑Principles.

The contention in the present case was that, the two Courts below have not properly appreciated the evidence. Question pertaining to appreciation of facts cannot be resorted to, in exercise of Constitutional jurisdiction by High Court, for the simple reason that in doing so the petition shall be converted into a revision or second appeal and the very purpose of abolishing the second appeal and restricting the finality pertaining to the rent matters to first appeal, shall stand frustrated. A writ petition is not substitute either for revision or the second appeal and the petition shall be entertained if a case is made out to the effect that the Rent Controller and First Appellate Authority have made an order palpably without jurisdiction or there is case of lack of jurisdiction or the finding is so perverse, that it is not sustainable on the established principles of the appreciation of evidence, or any specific provision of law has been violated. No Constitutional petition in rent matters and in all such cases in which no second appeal or revision is provided in law, shall be entertained, until and unless there is a jurisdictional error committed by the Courts below. The exercise of jurisdiction in a perverse or arbitrary manner or ignoring the material available on record or violation of any provision of law, substantive or procedural, causing miscarriage of justice or violation of established principles of administration of justice shall bring the case within the purview of jurisdictional error. High Court, while exercising Constitutional jurisdiction shall not enter into appreciation of evidence, even if there is possibility of arriving at any other conclusion on the appreciation of evidence. Since the petition is not substitute of appeal, therefore, the contention is found to be beyond the scope of Constitutional jurisdiction and requires no consideration.

(c) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court ‑‑‑Scope‑‑­Constitutional petition, in rent matters and in all such cases in which no second appeal or revision was provided in law, Shall not be entertained, until and unless there was a jurisdictional error committed by the Courts below.

Abdul Qadir Shaikh for Petitioner.

Respondent No. 1 in person.

Nemo for Respondents Nos.2 and 3.

Date of hearing: 16th December, 2002.

2003 M L D 488

[Karachi]

Before Anwar Zaheer Jamali, J

MUHAMMAD FAISAL ‑‑‑Plaintiff

Versus

MUHAMMAD IQBAL and others‑‑‑Defendants

Suit No. 147 of 1992, decided on 17th September, 2001.

Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑O.IX, Rr. 8 & 9‑‑‑Specific Relief Act (I of 1877), Ss.39, 42 & 54‑‑­Suit for declaration. cancellation of instrument and injunction etc.‑‑­Dismissal of suit for non‑prosecution‑‑‑Application for restoration‑‑­When the suit was fixed for evidence for the first time, same was dismissed in the early Court hours as neither the plaintiff nor his counsel appeared in the Court‑‑‑Application for restoration of suit was moved by plaintiff within ten days from date of its dismissal for non‑prosecution‑‑­Alongwith application counsel for plaintiff had filed his affidavit wherein it was stated that he was busy before another Bench‑‑‑Application 'was also accompanied with copy of cause list confirming the fact that case of the counsel for plaintiff was fixed before another Bench on that very date‑‑‑Such plea was also not disputed by defendant‑‑‑Absence of plaintiff though had not been explained satisfactorily, but considering the facts that valuable rights of the plaintiff were involved in the suit, law favoured adjudication of disputes on merits‑‑‑Date of hearing was the first one when suit was fixed for evidence and dismissed for non­prosecution in early Court time‑‑‑Was not just and fair that plaintiff be penalized by depriving him of any further opportunity to seek adjudication of his claim on merits‑‑‑Application of plaintiff was allowed and suit was restored to its original position subject to payment of costs.

PLD 1998 Kar. 154; 1990 CLC 206 and 1995 CLC 461 ref.

Salim Salam Ansari for Plaintiff.

Muhammad Zubair Qureshi for Defendant No. 1(a).

Sardaruddin Qureshi for Defendants Nos.2 and 3.

Nemo for the Remaining Defendants.

2003 M L D 542

[Karachi]

Before Muhammad Sadiq Leghari, J

MUHAMMAD SIDDIQUE and others‑‑‑Petitioners

Versus

MUHAMMAD BUX and others‑‑‑Respondents

Civil Revision No. 84 of 2000, decided on 25th September, 2002.

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

‑‑‑‑S.115‑‑‑Revision‑‑‑Limitation‑‑‑Condonation of delay‑‑‑First Appellate Court passed judgment on 31‑5‑2000 and prepared decree on 30‑6‑2000‑‑‑Revision was filed on 30‑9‑2000‑‑‑Validity‑‑‑Revision was two days beyond period of limitation as time had started to run from 1‑7‑2000 and ninety days period had expired on 28‑9‑2000‑‑‑No convincing and satisfactory explanation for such delay was shown‑‑‑Appellate Court had not supplied copy of judgment to petitioner and High Court heard arguments on question of admission much after expiry of three months of filing of revision‑‑‑If revision was declared not maintainable for being two days beyond period of limitation, such might create impression of selective rigidity‑‑‑As question raised by petitioner deserved careful examination, High Court admitted time‑barred revision for hearing.

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

‑‑‑‑S.115‑‑‑Limitation Act (IX of 1908), S.12(2)‑‑‑Revision‑‑‑Provisions of S.12(2) of Limitation Act, 1908‑‑‑Applicability‑‑‑Section 12(2) of Limitation Act, 1908 would not apply to revision application as limitation for its making was fixed by C.P.C. and not by Limitation Act, 1908‑‑‑Revision application even otherwise was nowhere mentioned in S.12(2) of Limitation Act, 1908, which only spoke of appeal and application for leave to appeal or review of order.

2001 MLD 1546: PLD 1960 (W.P.) Kar. 795 and PLD 1993 Quetta 121 ref.

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

--‑Ss.115(1), second proviso, 96 & 100‑‑‑Revision against judgment of First Appellate Court‑‑‑Limitation, computation of‑‑‑Ninety days' period was fixed for filing revision against decision of subordinate Courts‑‑Where first and/or second appeal were filed against judgment followed by decree, time would be computed from date of decree‑‑‑Judgment in First appeal was never complete without decree as in absence of decree, same was not executable‑‑‑Decree was, thus, essential component of decision‑‑‑First appeal could be treated as a matter decided finally only after preparation of decree‑‑‑Decision referred in S.115, C.P.C., was combination of judgment and decree as any of them singly could not be created as decision‑‑‑Since judgment and decree both collectively were to be treated decision, thus, time would start to run from date of decree following the judgment.

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

--‑S.115‑‑‑Revisional jurisdiction of High Court‑‑‑Nature and scope‑‑Time limit fixed in second proviso to S.115, C.P.C.‑‑‑Implementation of‑‑‑Such proviso was regulatory in form giving an automatic controlling mechanism‑‑‑Ninety days' time limit for filing revision application not to be rigidly implemented‑‑‑Balanced and practical attitude be adopted towards regulatory time limit fixed by such proviso by avoiding rigidity in deserving cases ‑‑‑Revisional jurisdiction of High Court under S.115, C.P.C. being supervisory in nature, could be exercised even suo Motu for checking illegalities and irregularities‑‑‑No time limit for suo Motu exercise of such jurisdiction‑‑‑Rigid application of time limit provided by S.115, C. P. C., might create impression of refusal to exercise jurisdiction by Revisional Court itself for technical reasons.

Bhajandas Tijwani for Applicants.

Respondent No. 1 in person.

Date of hearing: 25th September, 2002.

2003 M L D 560

[Karachi]

Before Abdul Hameed Dogar and Ghulam Nabi Soomro, JJ

WAHID alias FARHAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.165 and 166 of 1999, decided on 3rd March, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.392/34‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7(ii)‑‑­Appreciation of evidence‑ ‑‑Reduction in sentence‑‑‑Offence alleged against the accused was of vehicle‑snatching which according to S.7(ii) of Anti‑Terrorism Act, 1997 was punishable with 7 years' R.I. and fine‑‑‑Sentence of 10 years' R.I., awarded to accused by Trial Court was reduced to 7 years' R.I. ‑‑‑Maintaining conviction of accused sentence was reduced accordingly.

Shahadat Awan and Hassan Jaffer Rizvi for Appellant.

Syed Jalil A. Hashmi, Asstt. A.‑G. for the State.

Date of hearing: 3rd March, 2000.

2003 M L D 572

[Karachi]

Before Khilji Arif Hussain, J

RUKHSANA PARVEEN and 4 other, Plaintiffs

Versus

ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of Railways, Islamabad and 3 others‑‑‑Defendants

Suit No. 1128 of 1990, decided on 24th December, 2002.

Fatal Accidents Act (XIII of 1855)‑‑‑

‑‑‑‑S.1.‑‑‑Fatal accident‑‑‑Suit for damages‑‑‑Evidence on record has established that defendant (Railway Authorities) had been negligent in taking proper care resulting in the death of three persons in accident at the railway crossing‑‑‑Suit for damages/compensation filed by legal heirs of deceased was decreed taking into consideration age and earning capacity of the deceased.

Nasir Maqsood for Plaintiffs.

Akhlaq Ahmed Siddiqui, Ikram Ahmed Ansari and Imtiaz Ahmed Ansari for Defendants.

Date of hearing: 12th December, 2002.

2003 M L D 582

[Karachi]

Before Saiyed Saeed Ashhad, C.J. and Ghulam Rabbani, J

NAZIM, UNION COUNCIL NO.6, KARACHI SOUTH and another‑‑‑Petitioners

Versus

ELECTION TRIBUNAL, SADDAR TOWN, KARACHI and others‑‑‑Respondents

Constitutional Petition No. D.357 of 2002, decided on 14th March, 2002.

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

‑‑‑‑S. 5(r)‑‑"Wilful default"‑‑‑Connotation.

Khan Asfandyar Wali 'v. Federation of Pakistan PLD 2001 SC 607; Muhammad Iqbal v. District Returning Officer‑and others 2001 YLR 855 and Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD 2000 SC 869 ref.

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

‑‑‑‑Ss.14(j), 16, 18 & 18‑A‑‑‑Sindh Local Government Election Rules, 2000, Rr.16, 18, 81, 83 & 86‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Rejection of nomination papers‑‑­Nomination papers for election of Nazim and Naib‑Nazim were rejected by Returning Officer, their election as returned candidates was declared void and opposing candidates securing next highest number of votes were declared elected‑‑‑Nomination papers were rejected on the ground that candidate for Naib‑Nazim was declared "defaulter" in payment of instalments of Bank‑‑‑Rejection of nomination papers was challenged on the grounds that candidate was not wilful defaulter; that disqualification of candidate for Naib Nazim would have no adverse effect on the candidate for the seat of Nazim; that in case of disqualification of both the candidates, opposing defeated candidates were not to be allowed to take over as successors of candidates, but bye‑elections were to be held for new set by applying petitioners of S.18‑A of Sindh Local Government Elections Ordinance, 2000‑‑‑Validity‑‑‑Candidate alleged to be wilful defaulter admittedly had availed facility from Bank, but he failed to repay amount to Bank which had to file suit for recovery of amount against the candidate‑‑‑Candidate had admitted that at the time of filing nomination papers he was under liability to pay amount and Banking Court had passed decree against him‑‑‑Candidate, in circumstances, could not say that he was not an adjudged "wilful defaulter" ‑‑‑Provision of S.16 of Sindh Local Government Election Ordinance, 2000 required that Nazim and Naib Nazim would contest ­election as joint candidates who had to file single nomination paper as joint candidates‑‑‑In case of rejection of nomination papers of either Nazim or Naib‑Nazim, nomination papers for both candidates would stand rejected‑‑‑Nomination papers of both the candidates were rightly rejected in, circumstances‑‑‑Provisions of Rr.81(1) & 83 of Sindh Local Government Elections Ordinance, 2000 had empowered Election Tribunal not only to make an order declaring election of returned candidates as void, but it could declare opposing unreturned candidates getting next maximum votes to be duly elected‑‑­Nomination papers of candidates, in circumstances, were rightly rejected and opposing candidates, were rightly declared duly elected.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Muhammad Iqbal v. District Returning Officer and others 2001 YLR 855 and Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief‑Executive of Pakistan and others PLD 2000 SC 869 ref.

Kamal Azfar and Abdul Ghafoor Mangi for Petitioners.

Muhammad Sarwar Khan, Addl. A‑G, Sindh for Respondents Nos. 1 to 3.

I.A. Hashmi for Respondents Nos.4 and 5.

Date of hearing: 14th March, 2002.

2003 M L D 607

[Karachi]

Before Sabihuddin Ahmed and Shabbir Ahmed, JJ

Haji KHUDA BUX NIZAMANI‑‑‑Petitioner

Versus

ELECTION TRIBUNAL and others‑‑‑Respondents

Constitutional Petition No.D‑1605 of 2002, decided on 16th September, 2002.

(a) Representation of the People Act (LXXXV of 1976)‑‑‑--

‑‑‑‑Ss.14(5) & 14(5‑A) [as inserted by Representation of the People (Amendment) Ordinance (XXXVI of 2002)]‑‑‑Appeal‑‑‑Suo motu jurisdiction of Election Tribunal to reject nomination papers of a candidate on information received‑‑‑Scope‑‑‑Technically correct that appeal against order of Returning Officer could be filed by a contesting candidate‑‑‑No particular form prescribed under S.14(5‑A) of the Act for giving information-‑‑Election Tribunal would be well within its jurisdiction to treat memo. of appeal as an information and proceed according to requirement of law.

(b) Representation of the People Act (LXXXV of 1976)‑‑‑----

‑‑‑‑S.14(5)‑‑‑Appeal, notice of Natural justice, principle of‑‑­Applicability‑‑‑Substantial compliance with principles of natural justice would be effected, when notice of appeal was given to petitioner.

(c) Practice and procedure‑‑‑‑--

‑‑‑‑ When notice to a party is required by way of an express provision of law as distinguished from a mere principle of natural justice, then strict compliance ought to be made and mere substantial compliance might not be sufficient.

(d) Representation of the People Act (LXXXV of 1976)‑‑‑--

‑‑‑‑Ss.12(2)(d), 14(5), 14(5‑A) [as inserted by Representation of the People (Amendment) Ordinance (XXXVI of 2002)], 68(a) & 99(1‑A)‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Appeal against order of Returning Officer accepting nomination papers of petitioner alleged to be a Bank defaulter‑‑‑Election Tribunal, without requiring petitioner to show cause, after serving notice of appeal upon him rejected his nomination papers‑‑‑Validity‑‑‑Such allegation could have been scrutinized more appropriately by issuing a show‑cause notice requiring petitioner to explain the same‑‑‑Adequate documentary material had not come to notice of Tribunal in absence of a proper show‑cause notice‑‑‑High Court could not assume jurisdiction of Election Tribunal‑‑­Debarring petitioner from contesting elections in absence of ,sufficient proof as to his being disqualified would be entirely unwarranted‑‑‑Law regarding disqualification of a candidate ought to be strictly construed‑‑­If petitioner was elected and his nomination was found to be invalid, same could always be assailed by way of election petition under S.68(a) of the Act‑‑‑High Court accepted Constitutional petition.

Babar Khan Ghori v. Election Tribunal No. 1 1998 CLC 1304 ref.

(e) Representation of the People Act (LXXXV of 1976)‑‑‑---

‑‑‑‑Ss.14(5), 14(5‑A) [as inserted by Representation, of the People (Amendment) Ordinance (XXXVI of 2002)], 68 & 70‑‑‑Appeal‑‑­Summary disposal‑‑‑Object‑‑‑Exercise of suo motu power by Election Tribunal to reject nomination papers of a candidate‑‑‑Such power is predicated by conditions of a show‑cause notice to candidate and satisfaction of Tribunal that candidate is actually defaulter or suffers from any disqualification‑‑‑Such powers under S.14(5‑A) of the Act need to be exercised cautiously‑‑‑Principles.

Tribunals constituted under section 14(5) of the Representation of the People Act, 1976 are required to work inasmuch as they have to dispose of dumber of appeals within a short period of time so as to ensure that electoral process is not delayed, therefore, the Legislature had advisedly ordained that such appeal are to be "summarily decided". At the same time, however, though Legislature has conferred upon a Tribunal the power to suo motu reject the nomination papers of a candidate, such power is predicated by the conditions of show‑cause notice to the candidate and the satisfaction of Tribunal that the candidate is actually a defaulter or suffers from any disqualification., Scheme of the electoral laws does not stipulate a large scale of disqualification of candidate prior to the poll, but it is designed only to ensure that a person suffering from a disqualification does not occupy a representative office. This may be evident from a comparison of sections 68 and 70 of the Act relating to election petitions. Under section 68; the election of a returned candidate can be declared void, if he was disqualified from contesting on the nomination day but under section 70 the election as a whole could be declared void only if the result was materially affected by reason of failure of any person to comply with the provisions of law or the prevalence of extensive corrupt practices. In other words the mere factum of an unqualified person participating in the election may not vitiate the election‑as long as he is not declared elected. Where an appeal under section 14(5) by the very nature of things has to be summarily decided, the powers under section 14(5‑A) need to be cautiously exercised after the Tribunal is fully satisfied that the candidate was actually a defaulter or otherwise disqualified from contesting election.

(f) Electricity Act (IX of 1910)‑‑‑

‑‑‑‑S.2(c)‑‑‑"Consumer"‑‑‑Expression "person" as used in S.2(c) of the Act‑‑‑Not confined to a natural person ‑‑‑Corporate/juristic person would also fall within definition of a "consumer".

(g) Company‑‑‑

‑‑‑‑ Company is separate and distinct legal entity from its shareholders or directors‑‑‑Liability of share‑holders in the liability of company is limited to extent of unpaid amount on his shares unless otherwise provided in its memorandum.

(h) Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑‑Ss.14(5) & 68‑‑‑Constitution of Pakistan (1973), Arts. 199.& 225‑‑­Constitutional petition‑‑‑Maintainability‑‑‑Where candidate was disenfranchised or barred from contesting election, and electoral law did not provide any remedy to him to seek redress, then jurisdiction. of High Court under Art. 199 of the Constitution could always be invoked.

Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396 ref

Ghulam Mustafa Jatoi v. Additional District and Sessions Judge 1994 SCMR 1299; Aftab Shahban Mirani v. President of Pakistan 1998 SCMR 1863 and Chowdhri Nazir Ahmed v. Chief Election Commissioner PLD 2002 SC 184 fol.

(i) Representation of the People Act (LXXXV of 1976)‑‑‑

--‑‑‑Ss.12. 14(5‑A) [as inserted by Representation of the People (Amendment) Ordinance (XXXVI of 2002)] & 99(1‑A)‑‑­Nomination papers, scrutiny of‑‑‑Disqualification of a candidate‑‑­Law regarding disqualification of a candidate ought to be strictly construed.

Syed Irtaza Hussain Zaidi and Shehenshah Hussain for Petitioner.

Makhdoom Ali Khan, Attorney‑General for Pakistan and Muhammad Idrees Naqshbandi for Respondents.

Date of hearing: 16th September, 2002.

2003 M L D 627

[Karachi]

Before Sabihuddin Ahmed and Amir Hani Muslim, JJ

Messrs RABIA CITY, RESIDENTS WELFARE ASSOCIATION (REGD.) ‑‑‑ Petitioner

Versus

CANTONMENT BOARD, FAISAL CANNT and another‑‑‑Respondents

Constitutional Petition No.420 of 2000, heard on 11th December, 2002.

Cantonments Act (II of 1924)‑‑‑--

‑‑‑‑Ss.2(viii), 108 & 185(1), first and second provisos‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Construction raised not in conformity with approved building plan‑‑‑Composition upon payment of compensation fee‑‑‑Construction raised on leased plot being not in conformity With the building plan approved by Cantonment Board, petitioner was aggrieved by said construction' and filed Constitutional petition challenging such construction‑‑‑Respondent approached Cantonment Board for composition and Cantonment Board upon payment of compensation fee by respondent stopped further proceeding against respondent in terms of first proviso to S.185(1) of Cantonments Act, 1924‑‑‑Validity‑‑‑Cantonment Board was competent to compound illegality in construction only when a building was under the management of Cantonment Board, .otherwise composition could not be effected without previous concurrence of Competent Authority defined in S.2(viii) of Cantonments Act, 1924‑‑‑No such concurrence was obtained in the present case‑‑‑Since property in question was not under the management of Cantonment Board and concurrence of Competent Authority which was required before composition could be effected, composition arrived at between Cantonment Board and respondent, was without lawful authority‑‑‑Cantonment Board was directed to perform its duty in accordance with law.

Khadim Hussain Abro for Petitioner.

Abdul Saeed Khan Ghori for Respondent No. 1.

Respondent No.2 (absent).

Nadeem Azhar Siddiqui, Dy. A.‑G. (on Courts Notice).

Date of hearing: 11th December, 2002.

2003 M L D 635

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

Messrs GHULAM HUSSAIN & Co. and others‑‑‑Petitioners

Versus

PROVINCE OF SINDH and others‑‑‑Respondents

Constitutional Petitions Nos. D‑418, D‑423, D‑430, D‑497 and D‑630 of 2002, decided on 18th November, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Unauthorised occupation and encroachment on land which was to be used for a project in public interest‑‑‑Petitioners who were in possession of property in dispute, had neither any registered sale‑deed nor a lease deed in their favour, but were unauthorized occupants and encroachers‑‑‑Land in dispute was reserved to construct a project of public and national importance‑‑‑Petitioners who had no legal right or title over the land and were trespassers and encroachers, had no right to remain in its possession or to invoke extraordinary jurisdiction of High Court‑‑‑Constitutional petitions, were dismissed, in circumstances.

M. Farooq Hashim for Petitioners (in C.P. No.D‑418 of 2002).

Raja Qureshi, A.‑G., Sindh alongwith Suleman Habibullah, Addl. A.‑G., Sindh for Respondent No.3 (in C.P. No.D‑418 of 2002).

Manzoor Ahmad for Respondents Nos.2 to 6 (in C.P. No.D‑418 of 2002)

Amarnath for Petitioner (in C. P. No. D‑423 of 2002).

Raja Qureshi, A.‑G., Sindh alongwith Suleman Habibullah, Addl. A.‑G., Sindh for Respondent No.1 (in C.P. No.D‑423 of 2002)

Manzoor Ahmad for Respondents Nos.4 to 7 (in C.P. No.D‑423 of 2002).

M Farooque Hashmi for Petitioners (in C.P No.D‑430 of 2002)

Raja Qureshi, A.‑G., Sindh alongwith Suleman Habibullah, Addl. A.‑G., Sindh ,for Respondent No. 1 (in C.P. No.D‑430 of 2002).

Manzoor Ahmad for Respondents Nos.3 to 6 (in C.P. No.D‑430 of 2002).

Shehenshah Hussain for Petitioners (in‑C.P. No.D‑497 of 2002).

Raja Qureshi, A.‑G., Sindh alongwith Suleman Habibullah, Addl. A.‑G., Sindh for Respondent No.1 (in C.P. No.D‑497 of 2002).

Manzoor Ahmad for Respondent No.2 (in C.P. No.D‑497 of 2002)

M. Ghulam Qadir Jatoi for Petitioners (in C.P. No.D‑630 of 2002)

Raja Qureshi, A.G., Sindh alongwith Suleman Habibullah, Addl. A.G., Sindh for Respondent No. 1 (in C. P. No. D‑630 of 2002).

Manzoor Ahmad for Respondents Nos.2 to 5 (in C.P. No.D‑630 of 2002)

Dates of hearing: 22nd March; 2nd, 16th, 25th April; 3rd May; 18th June; 13th, 20th and 23rd August, 2002.

2003 M L D 646

[Karachi]

Before Saiyed Saeed Ashhad, C. J. and Ghulam Rabbani, J

PETROSIN ENGINEERS AND CONTACTORS P.T.E. LTD. ‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Civil Petition D‑1007 of 2002, heard on 3rd September, 2002.

(a) Contract Act (IX of 1872)‑‑‑-

‑‑‑‑Ss. 2(a)(b)(e)(h), 3 & 10‑‑‑Valid contract‑‑ ‑Making of bid simply would amount to making of an offer and unless it was accepted and communicated, it would not mature into a valid contract‑‑‑No legal right would be acquired by a bidder by simply making a lower bid because other factums like capacity to fulfil other conditions to complete the contracted project also would be kept in view‑‑Whether it had been made obligatory or it was discretionary to award contract was also to be seen‑‑‑Company which had invited bids through its letter had clearly reserved its right to accept or reject any or all bids without assigning any reason whatsoever‑‑‑Bidder who was found wanting in many aspects, was rightly not awarded contract despite he had made lower bid.

Food Corporation of India v. Messrs Kamdhenu Cattle Feed Industries 1993 SCMR 2158; Ch. Muhammad Younus v. The Islamic Republic of Pakistan through The Secretary, Ministry of Communication, Government of Pakistan, Islamabad and 3 others PLD 1972 Lah. 874; Fawad and Fareen Enterprise Ltd. v. Director of Industries, Government of Sindh, Karachi and others PLD 1983 Kar. 340 and Muhammad Younus Khan and 12 others v. Government of N.‑W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618 ref.

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

‑‑‑Art. 199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Complicated questions of fact which would need detailed enquiry would not fall appropriately within Constitutional jurisdiction of High Court.

Landale and Morgan v. Chairman, Jute Board 1970 SCMR 853 ref.

Muhammad Jameel for Petitioner.

S. Zaki Muhammad, D.A. ‑G. for Respondent No. 1.

Sajid Zahid for Respondent No.2.

Faisal Islam for Respondents Nos.3 and 4.

Date of hearing: 3rd September, 2002.

2003 M L D 661

[Karachi]

Before Sabihuddin Ahmad and Zia Pervaiz, JJ

AFTABUDDIN QURESHI and others‑‑‑Petitioners

Versus

GOVERNMENT OF SINDH, SECRETARY, HOUSING AND TOWN PLANNING and others‑‑‑Respondents

Constitutional Petition No.D‑1900 of 1999, heard on 8th February, 2002.

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

‑‑‑‑Ss.6 & 11‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Commercialization of plot‑‑‑ Permission to commercialize several plots including other adjacent to plots of petitioner having been granted by Authority, petitioners applied for commercialization of their plots, but their request was rejected on the ground that Government by a Notification‑had imposed a ban on commercialization of the plots‑‑‑Plots of petitioners remained solitary residential plots though it had become incapable of being used for residential purposes on account of multistoreyed commercial buildings having been raised all around the area‑‑‑Notification in question was with regard to restriction contained in Sindh Buildings Central Ordinance, 1979‑‑‑Controversy stood at rest by judgment of High Court reported as 1992 MLD 2259 whereby restriction contained in Sindh Buildings Control. Ordinance, 1979 or Town Planning Regulation, would not be applicable to the present case‑‑­Petitioners, nevertheless, would still be bound by any restriction as land user contained in Cantonments Act or Rules made thereunder‑‑­Constitutional petition filed by petitioners was allowed to the extent that order rejecting application of petitioners for commercialization of their plots, was set aside and Authority was directed to decide applications for commercialization notwithstanding the said Notification within specified period.

Zeeshan Builders v. Karachi Building Control Authority 1992 MLD 2259 ref.

Abid S. Zuberi for Petitioners.

Suleman Habibullah, A.A. ‑G. for Respondent No. 1.

Syed Jameel Ahmad for Respondent No .2.

Sohail H.K. Rana for Respondent No.3.

Date of hearing: 8th February, 2002.

2003 M L D 676

[Karachi]

Before Wahid Bux Brohi and Rehmat Hussain Jafferi, JJ

ASIF JAMEEL and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Special ATAs. Nos. 164 and 175 of 1999, decided on 17th December, 2002.

(a) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss.302/34 & 364/34‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑-­Qanun‑e‑Shahadat (10 of 1984), Art.40‑‑‑Appreciation of evidence‑‑­Assailants were unknown to the complainant and neither their names nor their features were given in the F.I.R.‑‑‑No identification parade for identifying the accused was held in presence of Magistrate through prosecution witnesses who had straightaway picked out the accused in the Court to be the culprits who had taken away the deceased with them‑‑­Plea of incident being already known to every body it could not be termed to be discovery within the meaning of Art. 40 of Qanun‑e-­Shahadat, 1984, and it carried no weight‑‑‑Identification of accused in the Court by the prosecution witnesses had no value‑‑‑No other evidence was avoidable on record to connect the accused with the crime‑‑­Inadmissible evidence had been brought on the file in the shape of statement/admission of the accused, hearsay evidence and pointing out place of incident by the accused which was already known to every body, which according to law was not required to be brought on the record, for the simple reason that it might affect or influence the mind of the Court in arriving at a right decision in the case‑‑‑Accused were acquitted in circumstances.

The State v. Farman Hussain and others PLD 1995 SC 1; 1993 SCMR 585; AIR 1982 SC 839; 1984 SCMR 175; Lal Pasand v. The State PLD 1981 SC 143; Shadeo Gosain v. Emperor 46 Cr.LJ 1945; Asghar Ali v. The State 1992 SCMR 2088 and Tayyab v. The State 1995 SCMR 412 ref.

(b) Penal Code (XLV of 1860)‑‑‑----

‑‑‑‑Ss.302/34 & 364/34‑‑‑Appreciation of evidence‑‑‑Identification of accused in Court‑‑‑Effect‑‑‑Identification of accused by the prosecution witnesses in the Court without holding identification test through the prosecution witnesses is of no value and it cannot be made the basis for conviction.

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

‑‑‑‑S.161‑‑‑Statements under S.161, Cr.P.C. cannot be used by the prosecution for any purpose but can be used by the defence for the purposes of corroboration or contradicting a witness‑‑ ‑Statements of prosecution witnesses given to the Investigating Officer during the course of investigation are not required to be recorded in the evidence through the Investigating Officer as the same is inadmissible in evidence and thus is not required to be tendered by the prosecution on record or brought on the record by the Court‑‑‑Principles‑‑‑Responsibility of the Court, prosecution and defence counsel qua the admissibility or inadmissibility of evidence detailed.

Statements under section 161, Cr.P.C. cannot be used by the prosecution for any purpose. It can be used by the defence for the purpose of corroboration or contradicting a witness. As such the statements of prosecution witnesses given to the Investigating Officer during the course of investigation are not required to be recorded in the evidence through the Investigating Officer as it is inadmissible in evidence therefore, the same are not required to be tendered by the prosecution or recorded or brought on the record by Courts.

At the time of recording of evidence heavy responsibility lies upon the prosecution and defence counsel to be alert so that inadmissible evidence should not come on the record. As soon such evidence is tendered by the prosecution or defence counsel, then the other party should immediately raise objection to the admissibility of such question/evidence and the Court should decide the same then and there and prevent it from coming on the record, if it is found to be inadmissible in evidence. If for any reason, the prosecution or defence does not raise such objection to the admissibility of evidence then it is the duty of the Judges to check such evidence, because the Judge has to play an active role while recording the evidence of witnesses. The evidence should not be recoded in a mechanical manner. A distinction has to be made between admissible and inadmissible evidence and only admissible evidence shall be allowed to come on record. If any inadmissible evidence is brought on the record, then it will adversely reflect upon the conduct of the prosecutors and defence counsel on their alertness, ability and knowledge of law etc., while tendering such evidence. At the same time it also reflects adversely upon the conduct of the Court in which, such evidence is recorded, allowed or brought on the record. Not only that, but it will unnecessary burden the record, which is ultimately to be discarded, and wastage of energy and Court's time, which can be utilized to some other work.

The moment the witness commences giving hearsay evidence, the Court should stop him. It is the duty of the Court to see that the evidence which is inadmissible should not be allowed to go into the prejudice of accused. A witness ought not be allowed to give hearsay evidence as it is impossible to remove its effects from the mind of the Court.

While considering the question of admissibility of evidence the Court should lean always in favour of the accused, and exclude all evidence tendered by the prosecution which is doubtful or of remote relevance.

The time for determining questions as to the admissibility of evidence is ordinarily the time when they arise, i.e., when the evidence is offered, instead of admitting the evidence in the first instance and reserving the question of law as to its admissibility until the ends of the trial. A ruling as to the admissibility must be very brief and there should be no interruption of trial once the ruling is given. If need be, further reasons may be given in the judgment. Therefore, all the concerned parties are advised to be careful, vigilant, alert while tendering, receiving and recording the evidence.

R. v. Pettamber 7 WR Cr. 25; Abbas v. R. CW No. 484; 7 WR Cr. 2,‑2. WR 252; 5 WR Cr. 28, 18 WR Cr. 16; 24 WR Cr.77; 10 WR Cr. 57; 40 CWN 432; AIR All. 405; 16 IA 148; 2 CMN 188; 13 CLJ 18; AIR 1925 Vindh. Pra. 452; AIR 1940 Nag. 340; 98 PLR 1918 and AIR 1950 Mad. 62 ref.

Shoukat Hussain Zubedi for Appellant (in Special ATA No. 164 of 1999).

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

Date of hearing: 21st November, 2002.

2003 M L D 688

[Karachi]

Before Saiyed Saeed Ashhad, C. J. and Ghulam Rabbani, J

MUSLIMS COMMERCIAL BANK LTD. and another‑‑‑Appellants

Versus

ADAMJEE INSURANCE COMPANY LTD and others‑‑‑Respondents

High. Court Appeal No.215 of 2002, decided on 28th November, 2002.

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

‑‑‑O.XXXIX, Rr. 1 & 2‑‑‑Temporary injunction, grant of ‑‑‑Essentials‑‑‑ All three essential ingredients must be fulfilled‑‑‑Absence of any one of such ingredients would not warrant grant of injunction.

For grant of injunction Order XXXIX, C.P.C., the party seeking grant of injunction has to establish the existence of three essential ingredients i.e. existence of a prima facie case; likelihood of irreparable loss or legal injury for non‑grant of temporary injunction; and that balance of convenience ought to be in favour of the party seeking temporary injunction. It is also the requirement of law that all the three requisites/essential ingredients must be fulfilled before injunction can be granted in favour‑of a party and absence of any one of these essential ingredients would not warrant grant of injunction.

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

‑‑‑‑O.XXXIX, Rr.1 & 2‑‑‑Temporary injunction, grant of‑‑‑Judging prima facie case‑‑‑Criteria stated.

Existence of a prima facie case is to be judged or made out on the basis of material/ evidence on record at the time of hearing of injunction application, and such evidence or material should be of the nature that by considering the same Court should or ought to be of the view that plaintiff applying for injunction was in all probability likely to succeed in the suit by having a decision in his favour, and that his case was not likely to fail on account of some apparent defects.

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

‑‑‑‑O. XXXIX, Rr. 1 & 2‑‑‑Temporary injunction cannot be granted merely on apprehension of party approaching the Court.

Injunction cannot be granted or issued merely on the apprehension of a party approaching the Court. The party seeking injunction must establish that adverse party committed an overt act or in all probability was likely to commit an overt act, which would result in causing legal injury or violation of his vested rights.

Anwar Mansoor Khan for Respondents Nos. 1 to 4.

Abrar Hassan for Respondent No.7.

Aga Faqir Muhammad and Ms. Rahat Konain Hasnain, General Counsel for Securities, and. Exchange Commission of Pakistan, for Respondent No. 8.

Date of hearing: 13th September, 2002.

2003 M L D 705

[Karachi]

Before Muhammad Sadiq Laghari, J

MUHAMMAD ZAHEER and another‑‑‑Applicants

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous Application No.433 of 2001, heard on 16th December, 2002.

(a) Penal Code (XLV of 1860)‑‑‑-

‑‑‑‑S.165‑‑‑Public servant obtaining valuable thing without consideration from person concerned in proceeding or business transacted by such public servant‑‑‑Essentials‑‑‑Section 165, P.P.C. relates to the delivery and receiving of valuable things and the presence of these elements is essential to attract its provisions‑‑‑.Taking or looting the goods or things forcibly do not fall within the ambit of S.165, P.P.C.

(b) Prevention of Corruption Act (II of 1947)‑‑‑

‑‑‑‑S.5‑‑‑Criminal misconduct ‑‑‑Scope‑‑‑Looted or robbed things from a premises do not fall within the ambit of any clause of S.5 of the Prevention of Corruption Act, 1947.

(c) Penal Code (XLV of 1860)‑‑‑-

‑‑‑‑Ss.165 & 167‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑­Code (V of 1898), S.561‑A‑‑‑Quashing of proceeding Accused were alleged to have looted valuable articles after locks of the complainant's premises‑‑‑Neither the articles were delivered to or received by the accused nor the same were ever entrusted to them or given under their control as public servants‑‑­Accused were also not stated to have possessed pecuniary resources or properties disproportionate to their known sources of income‑‑­Complaint filed by the complainant did not disclose the commission of art offence under S.165, P.P.C. or S.5(2) of the Prevention of Corruption Act, 1947‑‑‑Offence of S.167, P.P.C. being not a scheduled offence, Special Judge was not competent to take cognizance of the same‑‑­Proceedings pending against accused were quashed in circumstances.

Muhammad Ilyas Khan for Applicants.

Syed Tariq Ali, Federal Standing Counsel for Respondents.

Date of hearing: 16th December, 2002.

2003 M L D 719

[Karachi]

Before Saiyed Saeed Ashhad, C.J. and Ghulam Rabbani, J

Prof. MUHAMMAD WALI KHAN and another‑‑‑Petitioners

Versus

SECRETARY, GOVERNMENT OF SINDH and others‑‑‑Respondents

Constitutional 2002 No.1334 of 2002 decided on 19th November 2002.

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

‑‑‑‑Art.199‑‑‑Issuance of directions or providing relief under Art. 199 of the Constitution‑‑‑Purely discretionary.

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

‑‑‑‑Art. 199(2)(b)(ii)‑‑‑Quo warranto, writ of‑‑‑Issuance of such writ purely discretionary‑‑‑Duty of Court to test conduct and motive of petitioner before issuing such writ‑‑‑Principles.

Issuance of directions or providing reliefs under Article 199 of the Constitution is purely discretionary and it is more so in relation to the principles governing issuance of writ of quo warranto under Art. 199(2)(b)(ii) of the Constitution. In issuing the writ of quo warranto, the Court can and will take into consideration the conduct and motive of petitioner for determining as to whether the person, who has challenged the appointments of certain persons has done so with good intention of upholding the law or the mala fide and dishonest motive to settle some personal grudge and animosity with the person(s) holding the office(s) to certain post(s).

(c) Constitution of Pakistan (1973)‑‑­

‑‑‑‑Art.199(2)(b)(ii)‑‑‑Quo warranto, writ of‑‑‑Mala fides ‑‑‑Laches‑‑­Suppression of material facts‑‑‑Petitioner did not claim his right to any of the offices held by respondents‑‑‑Petitioner filed Constitutional petition after he was suspended and charge‑sheet was served on him for misconduct warranting penal action against him‑‑‑Non‑mentioning such facts in Constitutional petition would lead to presumption that petitioner had approached Court on‑ account of animosity and with vengeance for being placed under suspension‑‑‑No plausible and justifiable. reason for delay of five years in filing Constitutional petition was shown‑‑‑High Court dismissed Constitutional petition in limine.

Muhammad Shafique Raja v. Government of the Punjab and 2 others 1991 CLC 617; Syed Manzoor Hussain Gillani v. Sain Mullah, Advocate and 2 others PLD 1993 SC (AJ&K) 12; Syed Ali Raza Asad Abidi v. Ghulam Ishaq Khan, President of Pakistan and another PLD 1991 Lah. 420; Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and 5 others PLD 1989 SC 166 and Syed M. Yousuf Shah v. Azad Government and another 1993 CLC 2234 ref.

(d) Constitution of Pakistan (1973)------

----Act. 199(2)(b)(ii)---Quo warranto writ of—Locus standi to file----Petitioner not necessarily be an aggrieved person‑‑‑High Court competent to test bona fides of relator to see if he has approached the Court with clean, hands‑‑‑Writ of quo warranto cannot be issued as a matter of course on sheer technicalities on a doctrinaire approach.

Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others PLD 1969 SC 42 fol.

Petitioner in person.

Fazle Ghani Khan for Respondents:

2003 M L D 729

[Karachi]

Before S.A. Rabbani and Ghulam Rabbani, JJ

HASSAN RAZA‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1624 of 2001, decided on 7th March, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), Ss. 10(b) & 18‑‑‑Bail, grant of‑‑‑Main charge against one of the co‑accused was that he acquired property of value beyond his known means of income‑‑‑Contention of accused was that he purchased the property in his own name and for that purpose he had borrowed money from the co­ accused and that it was not property of the co‑accused purchased in name of the accused‑‑‑Case of accused did not appear to fall within definition given in Cl.(b) of S.10 of National Accountability Bureau Ordinance, 1999 and a case of purchase of property by any person in his own name through borrowing from a person involved in corrupt practice, was not covered by the said provision of law‑‑‑One of co‑accused involved in such‑like cases was granted bail and case of accused did not appear to be materially different from case of said co‑accused‑‑‑Accused was admitted to bail, in circumstances.

Abdul Haleem Siddiqui alongwith Abdul Qayoom Abbasi for Applicant.

Aamir Raza Naqvi, A. D. P. G. A, for NAB.

Date of hearing: 7th March, 2002.

2003 M L D 739

[Karachi]

Before M. Ashraf Leghari, J

ABDUL GHAFOOR alias CHAUDHARY‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Revision No. 198 of 2001 decided on 5th June, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/324/34‑‑‑Criminal Procedure Code (V of 1898), S.169‑‑­Appreciation of evidence‑‑‑Accused was not present at the spot‑‑‑Both complainant and prosecution witness in their affidavits had stated that name of accused was given on account of some misunderstanding and that culprits had not committed offence at instance of the accused‑‑­Police had not submitted challan against the accused and his name was placed in Column No.2‑‑‑Report under S.169, Cr.P.C. was submitted to the effect that since evidence against accused was insufficient, accused was not sent up to stand trial‑‑‑Judicial Magistrate subsequently was not competent to pass order under 5.169, Cr.P.C. and could only send case to Sessions Court for trial without passing judicial order‑‑‑Only the Trial Court could join accused and he could be tried, but that had not been done‑‑‑No evidence was available in regard to conspiracy against the accused to connect him with commission of crime‑‑‑Complainant and prosecution had exonerated the accused‑‑‑Accused was neither sent‑up by police nor he had been joined as accused by Trial Court‑‑‑Order against accused was set aside and he was ordered to be released forthwith.

Mirza Atiq Baig for Applicant, Arshad Lodhi, A.A.‑G.

Date of hearing: 5th June, 2002

2003 M L D 750

[Karachi]

Before Sarmad Jalal Osmany and Faiz Muhammad Qureshi, JJ

ARSHAD ALI KHAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Special Anti‑Terrorism Appeal No.23 of 2001, decided on.3rd August, 2001.

Penal Code (XLV of 1860)‑‑‑--

‑--‑‑S.381‑A‑‑‑Appreciation of evidence‑‑‑Jurisdiction of Anti‑Terrorism Court‑‑‑Offence against accused was merely an attempt to steal a motor­cycle and no act/incident of terrorism took place on the day of occurrence‑‑‑Anti‑Terrorism Court, in circumstances, had wrongly assumed jurisdiction in the matter‑‑‑Conviction of accused was set aside and case was remanded to Court having jurisdiction to try the case.

Manzoor Ahmed for Appellant.

Habib Ahmed, Asstt. A.‑G, Sindh for the State, Date of hearing: 3rd August, 2001.

2003 M L D 762

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

DANISH MASIH and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Special ATA Appeals Nos.34 and 35 of 2001, decided on 18th December, 2002.

Penal Code (XLV of 1860)‑‑‑---

‑‑‑‑S. 365‑A/34‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑"Terrorist act"‑‑‑Appreciation. of evidence‑‑‑Abduction by itself was a heinous offence and when coupled with demand of ransom and threat of killing the abductee in case of non‑payment of the same, it was likely to strike terror and create a sense of fear and insecurity in the family members of the abductee and the employees in his office after receipt of telephone calls‑‑‑Acts of accused thus having affected a section of the people in the said manner fell within the definition of "terrorist act" ‑‑‑Statement of the abductee was corroborated by other prosecution witnesses who had received mobile telephone calls from the accused demanding five million Rupees with a threat of killing the abductee if the amount was not paid‑‑‑Statements of these witnesses were not challenged‑‑‑Accused had not substantiated the plea taken by them in defence and they had even failed to explain their presence at the spot and recovery of the abductee from their possession‑‑‑Non‑association of private persons in the recovery was not fatal to the prosecution in the peculiar circumstances of the case, particularly when the abductee himself had stated that he was recovered by the police from the car in which the accused were sitting‑‑‑Convictions of the accused were upheld in circumstances‑‑‑Sentences awarded to accused by Trial Court being illegal were rectified and the appeal was dismissed with such modification.

Tayyab Hussain Shah v. The State 2000 SCMR 683; Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; State v. Nazir Ahmad 1999 SCMR 160 and State v. Farman Hussain PLD 1995 SC 1 ref.

Al‑Haj Fareed Gul Khan for Appellants.

Habib Ahmed for Respondent.

Date of hearing: 5th November, 2002.

2003 M L D 777

[Karachi]

Before Sabihuddin Ahmed and Zia Parvez, JJ

RAUF BAKHSH KADRI---Petitioner

Versus

THE STATE and others---Respondents

Constitutional Petition No.386, 373, 1086 and 704 of 2002, decided on 12th December, 2002.

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

---Ss. 9(a), Cls. (i), (ii), (iii), (iv), (v), (ix) & 16-A---Constitution of Pakistan (1973), Arts. 25, 190 & 199---Constitutional petition---Vines of Cls. (i) to (v) of S. 9(a) of the National Accountability Bureau Ordinance, 1999---Clauses (i) to (iv) of S. 9(a) and S. 16-A of the National Accountability Bureau Ordinance, 1999, if construed according to their plain language cannot withstand the test of constitutionality--­Absolute discretion without any meaningful guidelines enabling the. Executive to pick and choose some persons for trial under the NAB Ordinance and leaving others to be tried by other fora would render such provisions repugnant to Art. 25 of the Constitution however, at the same time the principle that all efforts need to be made by Courts in the interpretative process to save rather than destroy the statute, cannot be overlooked---Striking down the said provisions of the NAB Ordinance as ultra vires the Constitution would practically amount to robbing it of its main contents inasmuch as Accountability Courts would have jurisdiction only to try those offences which were not punishable under any earlier law---Such course might amount to doing violence to the intention of the Legislature to deal with high level corruption in society---Supreme Court having held a large number of its provisions to be intra vires the Constitution and having directed amendments in others, High Court might be deviating from its obligation under Art. 190 of the Constitution to act in aid of Supreme Court, by striking down the main provisions of the said Ordinance, another reason for declining to strike down the impugned provisions was that the NAB Ordinance did not merely provide for a new mode of trial and punishment for offences under the pre-existing laws but also created certain, new offences which provisions had not teen questioned on the anvil of Art. 25 of the Constitution--­Principle of deviating from the literal construction or reading down the provisions of a statute can be resorted to by the Courts when they find a literal construction to affect the Constitutional validity of the law--­Literal construction of the impugned cls. (i) to (v) of S.9 (a) of NAB Ordinance cannot stand the test of Constitutionality, they have to read down to the extent that a Constitutionally permissible classification is established---Qualifications laid down in cl. (ix) will also have to be read in the other clauses of S. 9(a) of the NAB. Ordinance in-other words the discretion of the Chairman NAB or an officer authorized by him to file a Reference before the Accountability Court is not absolute or arbitrary-­Such Reference could be filed only when the Chairman or the Authorized Officer is satisfied that the amount involved is of large magnitude and resort to the facility of pre-bargaining with the accused would be in the national interest---Case would only be triable under the 'ordinary' law in the absence of such satisfaction.

Abdul Aziz Memon v. State A.A. 50 of 2002; Khan Afsandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Warts Meah v. State PLD 1957 SC 157; Inamur Rehman v. Federation of Pakistan 1992 SCMR 563; Liaqat Hussain y. Federation of Pakistan PLD 1999 SC 504; I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Atiya Bibi Khan v. Federation of Pakistan 2001 SCMR 1161. Safdar v. Government of Sindh 2001 SCMR 1231; State v. Dosso and another PLD 1958 SC (Pak.) 533; Azizullah Memon v. Province of Balochistan PLD 1993 SC 361; Illahi Cotton Mills v. Federation of Pakistan PLD 1997 SC 582: Amir Khatoon v. Faiz Ahmed and others PLD 1991 SC 787 and Sunil Batra v. Delhi Administration AIR 1978 SC 1675 ref.

Shafi Muhanunadi for Petitioner (in C.P.D. No.386 of 2002).

Khalid Anwar and Afsar Ali Abidi for Petitioners (in C.P.Ds. Nos.373, 1086 and 704 of 2002).

Naveed Rasool, Prosecutor-General Accountability Courts.

Muhammad Anwar Tariq, D.P.G.

Syed Zaki Muhammad, D.A.G.

Shoukat Hayat for Respondent No.2.

Dates of hearing: 10th July, 14th and 21st October, 2002.

2003 M L D 806

[Karachi]

Before Atta-ur-Rehman, J

AHMED ABBAS---Petitioner

Versus

THE IVTH ADDITIONAL DISTRICT JUDGE, DISTRICT EAST, KARACHI and 2 others---Respondents

Constitutional Petition No.D-522 of 2002, decided on 18th October, 2002.

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

----S.16(1)(2)---Striking off tenant's defence for violating tentative rent order---Conduct of tenant in each case has to be looked into as to whether he acted contumaciously or it was on account of simple error that rent was not deposited in accordance with order of Court.

Noor Muhammad v. Mehdi PLD 1991 SC 711; Zaheerullah Khan v. Abeda Begum 1999 CLC 771 and Aleemuddin v. Muhammad Aamir Gazdar (Civil Petition for Leave to Appeal No.715-K of 1998) rel.

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

----S.16(1)(2)----Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Striking off tenant's defence for having violated order of Rent Controller for about two years---Validity---Such act of tenant could neither be said to be on account of an error nor could be accounted as a technical error in depositing rent---Conduct of tenant was absolutely uncalled for, contumacious and violative of order of Rent Controller---Courts below had rightly come to such findings---No reason was found for interfering with impugned judgments in Constitutional jurisdiction---High Court dismissed petition in circumstances.

Adnan Ahmad for Petitioner.

Jawad Raza for Respondents

2003 M L D 828

[Karachi]

Before Anwar Zaheer Jamali, J

Mst. HAJIANI KHATIJA BAI and 8 others---Plaintiffs

Versus

Haji DAWOOD and 11 others---Defendants

Suit No. 232 and Civil Miscellaneous Applications Nos. 1116, 1742, 3874 and 3875 of 2000, decided on 24th October, 2002.

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

----O.VII, R.11---Rejection of plaint---Essential considerations--­Provisions of O.VII, R.11, C.P.C., not exhaustive of all situations in which plaint can be rejected in a suit---Court in addition to plaint can look into admitted/undisputed documents, such as record of previous litigation---Reading of plaint for such purpose should not be formal, but practical, meaningful, realistic and rational, so as to record a correct conclusion from pleadings rather than giving same an artistical and fanciful meaning---Court while doing such exercise has to keep in mind the true spirit of such provisions that incompetent suit should be buried at its inception.

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

----S.42---Civil Procedure Code (V of 1908), S.11, O.II, R.2 & O.VII, R.11---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss. 22 & 25---Suit for declaration with consequential relief---Rejection of plaint---Main relief claimed in third suit related to declaration regarding previous litigation between the parties that same was based on false assumption of site plan, thus, was of no legal effect and not binding on plaintiffs---Predecessor-in-interest of plaintiffs had litigated before Settlement Authorities in respect of same building--­Issues framed in first suit relating to bar of jurisdiction of Civil Court by virtue of Ss.22 & 25 of Displaced Persons (Compensation and Rehabilitation) Act, 1958, on the ground of estoppel and res judicata had been answered in affirmative---Appeal filed against such judgment had been dismissed, whereas revision filed by plaintiffs had been withdrawn---Plaint in second suit filed by plaintiffs on same subject had been rejected -being barred by res judicata---Plaintiffs or their predecessor in spite of being aware of site plan submitted before Settlement Authorities in year 1964 had neither denied nor disputed its existence or authenticity or signatures of parties thereon---Plaintiffs had failed to show any statutory provision under which site plan was required to be signed by Settlement Authorities or such non-signing had vitiated its validity---Nothing was in the matter, which was to be decided afresh in third suit, thus, same was barred by res judicata---Judgments/decrees in earlier round of litigation now challenged on ground of mis­representation of facts could be set aside only by Court which had passed final judgment/decree, thus, no such relief could be allowed to plaintiffs in third suit, which was barred under S.12(2), C.P.C.---If plaintiffs or their predecessor had any right to challenge site plan filed before Settlement Authorities in year 1964, then such cause of action, was available to them from very beginning, which they could have challenged in earlier round of litigation---In view of bar contained in O.II, R.2, C.P.C., right to seek such relief stood relinquished and same could not be adjudicated afresh---Court rejected plaint in third suit being not maintainable.

Mrs. Kausar Amin for Plaintiffs.

Sajjad Ali Shah for Defendant No.7

Nemo for the Remaining Defendants.

Chowdhary Muhammad Rafique, Addl. A.-G. for Defendants Nos.8, 9, 10 and 12.

2003 M L D 888

[Karachi]

Before Zia Perwez, J

TARIQ MOHSIN and others---Petitioners

Versus

COLLECTOR, CENTRAL EXCISE and others---Respondents

Criminal Miscellaneous No.207 of 1999, decided on 5th November, 2002.

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

----Ss. 561-A & 265-K---Quashing of proceedings---Since the application of accused under S.265-K, Cr.P.C. had not been disposed of by the Trial Court even after the expiry of eleven months, the same would be taken as dismissed---Trial Court, instead of disposing of the said application under S.265-K, Cr.P.C. had chosen to proceed first with the application for cancellation of bail---Accused, therefore, had a valid ground to seek their remedy under S.561-A, Cr.P.C.---Entire case in the F.I.R. was based upon survey/search and stock taking which had been declared to be unlawful and was set aside in the appellate order passed by the Collector and that order was upheld by the Tribunal---Impugned search had even been dislodged by the High Court---No justification, in circumstances, was available to the prosecution to continue the proceedings---Even if the case had been transferred to some other forum during pendency, High Court had ample power to take notice of the subsequent events and mould the relief according to altered circumstances of the case and dictates of justice even in the absence of such a prayer--­Proceedings pending against the accused were quashed accordingly.

Gianchand v. The State and another 1968 SCMR 380; Syed Nazar Ali v. Syed Ibne Ali and others 1981 SCMR 239; Ahmed Saeed v. The State and another 1996 SCMR 186; Criminal Miscellaneous No.36 of 1999; State v. Asif Ali and another Criminal Appeal No.553 of 1995 and The State v. Muhammad Nawaz 2002 SCMR 634 distinguished.

Nazir Iqbal alias Jeera and another v. The State NLR 1999 Criminal 181; Aamir Zia v. The State NLR 1999 Criminal 31; Muhammad Hanif Pathan v. The State PLD 1999 Kar. 12; 2000 PCr.LJ 1734; Mian Munir Ahmed v. The State 1985 SCMR 257; The State v. Asif Ali Zardari and another 1994 SCMR 798; Asif Ali Zardari v. State 1992 PCr.LJ 58; Syed Muhammad Awais Shibli v. The State 1995 MLD 511; Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 1..22; Muhammad Aamir Ali son of Hakim Ali and others v. The Judicial Magistrate, Moro and others Criminal Miscellaneous No. 112 of 1997 Muhammad Alam son of Muhammad Hashim v. Muhammad Aamir Ali son of Hakim Ali and others Cr.P.L.A. No.36-K of 1997; Malik Salman Khalid v. Shabbir Ahmed, D & S J, Karachi and another 1993 SCMR 1873; Sher Muhammad and another v. The State 1996 PCr.LJ 200; State v. Gulzar Muhammad 1998 SCMR 873; Muhammad Hanif Pathah v. The State PLD 1999 Kar. 121; State v. Gulzar Muhammad 1998 SCMR 873; Bhola Nath Keshari v. State of Bihar and another 1999 PTD 2374; Dr. Chandra Mohan Goswami v. State of Assam and another (1984) 145 ITR 582; W.L. Kohli and another v. Commissioner of Income-tax and another (1985) 152 ITR 154; Dr. R.P. Gupta v. Inspecting Assistant Commissioner of Income-tax (Assessment), Range XIV, New Delhi and another (1987) 168 IT.R.33; M. Murali Mohan v. State (Income Tax. Officer, Nalgonda) (1987) 168 ITR 729; Swastika Metal Works and others v. Vimal Vashist, Inspecting Assistant Commissioner of Income-­tax (1989) 176"ITR 526; Radhakrishna Reddiar v. Controller of Estate Duty, Kerala (1968) 67 ITR 838; Nooruddin and 11 others v. Abdul Waheed PLD 1997 Kar. Zameer ul Hassan v. State 1999 MLD 546; AIR 1945 PC 18; Saiyyid Abul A'la Maudoodi and others v. Government of West Pakistan and others PLD 1964 SC 673; Mst. Amina Begum and others v. Mehar Ghulam Distgir PLD 1978 SC 220; Samar Gul v. Central Government and others PLD 1986 SC 35 and Syed Ali Asghar and 3 others v. Creators (Builders) and 3 others 2001 SCMR 279 ref.

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

----Ss.561-A, 265-K & 249-A---Inherent power of High Court--­Application and scope--Power of High Court under S.561-A, Cr.P.C. as against Ss. 265-K & 249-A, Cr.P.C. is co-extensive---Law prefers the accused to first exhaust the remedy before the Trial Court under S.265-K, Cr.P.C. or S.249-A; Cr.P.C., before resorting to an application under S.561-A, Cr.P.C.---Where, however, the accused is able to establish that the remedy under S.265-K, Cr.P.C. or S.249-A, Cr.P.C. is illusory, nugatory, not proper or efficacious, looking to the circumstances of a particular case, High Court can well entertain a direct application under S.561-A, Cr.P.C.---Where the accused, in exceptional circumstances, demonstrates that the matters complained of constitute a patent abuse of process of Court and continuation of the trial is a waste of time and a futile exercise and from the admitted facts no offence was made out, non-suiting the applicant solely on the ground of availability of alternate remedies would lead to nothing but brute injustice.

Nazir Iqbal alias Jeera and another v: The State NLR 1999 Criminal 181 Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122; Malik Salman Khalid v. Shabbir Ahmed, D & S J, Karachi and another 1993 SCMR 1873; State v. Gulzar Muhammad 1998 SCMR 873 and Muhammad Hanif Pathah v. The State PLD 1999 Kar. 121 ref.

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

----Ss.561-A, 265-K & 249-A---Scheme and scope of Ss. 561-A, 265-K & 249-A, Cr.P.C.---When Court takes cognizance of an F.I.R., tae entire proceedings including the F.I.R. become amenable to the regime of quashment of laws found in Ss.249-A, 265-K & 561-A, Cr.P.C.

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

----S.561-A---Quashing of proceedings---Guidelines---Criminal proceedings can safely be quashed where in the case set up by the prosecution there is no chance of conviction of accused, or the very basis of the prosecution version is patently untenable or is rendered so, or the continuation of the trial appears to be a waste of time or a futile exercise and from the admitted facts no offence is made out or where the very cognizance is completely without jurisdiction.

Dr. Muhammad Farrogh Naseem for Applicants.

Ziauddin Nasir, Standing Counsel for the State.

Muhammad Anwar Tariq for NAB.

Date of hearing: 31st May, 2002.

2003 M L D 964

[Karachi]

Before Shabbir Ahmed and Muhammad Sadiq Laghari, JJ

SIDDIQUE BUDHANI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1335 of 2002, decided on 17th October 2002.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.420/468/471/109---Interim bail before arrest, grant of---Accused had pleaded that he had ceased to be employee of the complainant much prior to alleged obtaining of loan and that he had not signed any loan document---Case of the accused was identical to the case of co-accused who had already been granted bail--­Accused was also granted inter in bail before arrest.

Saalim Salam Ansari for Applicant.

2003 M L D 980

[Karachi]

Before Syed Zawwar Hussain Jafri, J

FATUHAL KHAN CHANDIO---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.S-104 of 2002, decided on 4th September, 2002.

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

----S. 561-A---Penal Code (XLV of 1860), Ss. 161/3Application for quashing of proceedings---Allegations against all the accused including applicant were that they all being police officials were guilty of highhandedness and maltreatment against complainant party and robbed them and thereafter confined them for 4 days and obtained huge amount from them---Case of the applicant could not be separated from the case of other co-accused, but said co-accused neither were impleaded nor any notice of proceedings was issued to them---Contradictions appearing in direct complaint, Constitutional petition, acid F.I.R. lodged by complainant against the applicant, were fatal to prosecution case--­Pendency of case against the applicant had revealed that complainant was a habitual offender as some cases were pending against him in the Courts ---Mala fides and .ulterior motives were clear on the part of complainant to show that a false complaint had been made against police officials including the applicant---Proceedings pending before Trial Court against the applicant had no legs to stand and ultimately if the Trial Court proceeded with the case of the applicant, it would end in his acquittal as evidence of the complainant and his witnesses were in conflict with documentary evidence brought on record in the shape of Constitutional petition, F.I.R. and the direct complaint---Proceedings against the applicant, were ordered to be quashed, in circumstances.

Zaheer Ahmed and 2 others v. The State PLD 1979 Kar. 186; Muhammad Sadiq v. Anverr Majeed and another 1989 PCr.LJ 1223; Muhammad Anwar and others v. The State 1976 PCr.LJ.1325; Mirza Naseem Baig v. Muhammad Iqbal and others 1981 SCMR 315 and Sanaullah Barni and others v. The State 1980 PCr.LJ 728 ref.

Khalid Iqbal Memon for Petitioner.

Roshan Ali Solangi for Respondent No. 1.

Ali Azfar Tunio, A.A.-G. for the State.

Date of hearing: 4th September, 2002.

2003 M L D 1023

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

Mst. SHAHZINA PERVEEN---Petitioner

Versus

DISTRICT RETURNING OFFICER (DISTRICT JUDGE) and others----Respondents

Constitutional Petition No.D-513 of 2002, decided on 10th September, 2002.

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

----S.14(g)---Constitution of Pakistan (1973), Art. 199---Disqualification of candidate---Appointment as Lady Health Worker in Health Department on contract basis at a fixed honoraria---Election Tribunal annulled petitioner's election in view of bar contained in S.14(g) of the Ordinance---Validity---Holders of elected public office and part-time officials remunerated either by salary or fee had been excluded from disqualification as envisaged in S. 14(g) of the Ordinance---Appointment order of petitioner showed that her selection for such post was a part ­time job and contract was for a fixed term subject to renewal and she was to be paid a honorarium at a fixed rate---Such case was not covered under disqualification as envisaged by S.14(g) of the Ordinance---High Court accepted Constitutional petition, set aside impugned order and restored decision of Returning Officer declaring the petitioner as successful candidate in election.

Petitioner in person.

Suleman Habibullah, Addl. A.-G., Sindh for Respondents Nos. 1 to 3.

Mahmood Hassan for Respondent No.4

Dates of hearing: 8th and 21st August, 2002.

2003 M L D 1033

[Karachi]

Before Anwar Zaheer Jamali, J

Messrs MEHRAJ (PVT.) LTD. ---Petitioner

Versus

Miss LAIMA SAEED and others----Respondents

Constitutional Petition No. 1049 of 2002, decided on 20th January 2003.

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

----S.15(2)(ii)---Default in payment of rent---Non-appearance of landlady in witness-box---Effect---Such non-appearance would not be fatal to her case, but such fact would be material only where tenant had pleaded payment of disputed rent to her.

Allah, Din v. Habib PLD 1982 SC 465 ref.

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

----S.15(2)(ii)---Default in payment of rent---Plea of practice of lump sum payment of rent or payment of any amount towards property tax etc, on behalf of landlady not raised by tenant in written objections--­Tenant, in circumstances, was precluded from raising such plea at stage of evidence.

Syed Abdul Rasheed v. Mst. Tajunnisa 1982 CLC 954; Haji Rehmatullah v. Mst. Manawar Jehan 1995 CLC 1117 and Gulzar Begum and others v. Masud Akhtar Khan and others 1988 MLD 938 ref.

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

----S.15(2)(ii)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Default in payment of rent---Withholding/non-payment of rent by tenant on pretext of negotiations for sale with landlady---Rent Controller and Appellate. Court concurrently found the tenant as defaulter in payment of rent---Validity---Tenant had failed to explain how withholding of rent for - disputed period could have helped him in finalizing sale transaction or what nexus the same had with negotiations for sale of rented premises--All such facts and different alternate pleas taken by tenant were indicative of the fact that his assertions could not be believed as correct---Impugned orders were based on proper assessment of evidence available on record---High Court dismissed Constitutional petition in limine.

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

----S.21---Constitution of Pakistan (1973), Art. 199---Appeal, right of--­Purpose---Constitutional jurisdiction of High Court---Scope of interference in cases under Sindh Rented Premises Ordinance, 1979--­Principles.

By conferring one right of appeal under section 21 of the Ordinance, the Legislature in its wisdom seems to have tried to shorten the span of litigation in rent cases. In such circumstances, interference by High Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution in judicial orders passed by Tribunals merely on the ground that another view of the matter is also possible, would not serve any other purpose, but would add to misery of the parties.

Secretary to the Government of the Punjab, Forest Department. Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415 ref.

Chowdhary Muhammad Iqbal for Petitioner.

Date of hearing: 20th January, 2003.

2003 M L D 1044

[Karachi]

Before Syed Zawwar Hussain Jafri, J

ILLAHI BUX---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.532 of 2002, decided on 28th August, 2002.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.324/34---Bail, grant of--­Accused allegedly had made firing on the complainant with fire-arm, but not a single scratch had been received by the complainant or any other person---Enmity existed between the parties as admitted in the F.I.R.--­Charge-sheet had already been filed in the Court---In view of no objection. rendered by State Counsel and the peculiar facts and circumstances of the case, accused was entitled to bail.

Ghulam Murtaza v. State 2001 PCr.LJ 1691 ref.

Asif Ali Abdul Razak Soomro for Applicant.

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

Date of hearing: 28th August, 2002.

2003 M L D 1050

[Karachi]

Before Sarmad Jalal Osmany and Mushir Alam, JJ

MANSOOR AHMED ---Appellant

Versus

THE STATE---Respondent

Criminal Accountability Appeal No.D-55 of 2002, decided on 8th October, 2002.

(a) Constitution of Pakistan (1973)---

----Art. 13(a)---Criminal Procedure Code (V of 1898), S. 403---Penal Code (XLV of 1860), S. 409---Double jeopardy---Constitutional guarantee---Accused was tried first by a Military Court, but later, upon lifting of Martial Law, case was tried by Magistrate and lastly case was ordered to be transferred to Sessions Court---Prosecution had not come to any conclusion in the said forums- --Fresh prosecution for the same offence was barred only where such prosecution had finally been concluded and resulted either in acquittal or conviction---Fresh trial of accused, was in no way derogatory to principle of double jeopardy as enunciated in Art. 13(a) of Constitution---Rule against "autrefois acquit" found place in S.403, Cr.P.C. and counterpart of said rule viz. 'autrefois convict' had received recognition per Art. 13(a) of the Constitution--­Constitutional guarantee was only available if the accused was convicted and sentenced in earlier prosecution---Accused having neither been convicted nor acquitted as in none of the forums prosecution had come to any conclusion, second trial of the accused was neither violative of Art. 13(a) of the Constitution nor in contravention. of S. 403(1), Cr.P.C.

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

----S. 497---Bail, grant of---Tentative assessment of evidence at bail stage---Only tentative assessment of the evidence on the record was to be made at bail stage whereas details were to be thrashed out at the regular hearing of the matter.

I.A. Hashmi for Applicant.

Amir Raza Naqvi for the State.

Date of hearing: 2nd August, 2002.

2003 M L D 1064

[Karachi]

Before Shabbir Ahmed and Atta-ur-Rehman, JJ

PREMIER MERCANTILE SERVICES (PVT.) LTD. ---Plaintiff

Versus

TRUSTEES OF PORT OF KARACHI and others---Defendants

Suit No.225 of 2000, decided on 1st November, 2001.

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

----Ss.42, 54 & 55---Suit for declaration and injunction-Tender for construction of terminal on Built-Operate-Transfer basis---Defendant after accepting single bid of plaintiff discharged same due to its conduct, who was in litigation with defendant in respect of outstanding dues--­Plaintiff prayed for declaring such discharge as of no legal effect, directing the defendant to consider its bid and restraining tie defendant from calling fresh tenders till its single bid was considered--- Defendant's plea was that mere acceptance of bid would not create any right in favour of plaintiff---Validity---Plaintiff, who had been in litigation, had disclosed such fact during pre-qualification process, bat was pre ­qualified in spite of such disclosure---Different Evaluation Committees after examining and finding such bid as most favourable to the defendant had recommended for negotiation with the plaintiff---Conduct of a party having litigated for its right could not be equated with a party, whose past conduct in execution of work was poor---Bid had not been, refused being single---Action of the defendant to discharge tender on ground of litigation was not only irrational, but unjust and unfair---Suit was decreed with direction to defendant to consider plaintiff's bid in thorough and transparent manner.

Pak Shaheen Container Services (Pvt.) Ltd. v. Trustees of Port of Karachi Suit No.773 of 2000; Pacific Multinational (Pvt.) Limited v. Inspector-General of Police PLD )992 Kar. 283; Arif Builders and Developers v. Government of Pakistan PLD 1997 Kar. 627; Shoukat Ali and others v. Government of Pakistan PLD 1997 SC 342; Bagh Construction Company v. Federation of. Pakistan and others 2001 YLR 2791 and Ramana Dayaram Shetty v. The International Airport Authority of India and others AIR 1979 SC 1628 ref.

Messrs Arshad & Company v. Capital Development Authority, Islamabad 2000 SCMR 1557 distinguished.

(b) Contract---

---- Contract for execution of work on "Built-Operate-Transfer" basis under "Budget Estimate"---Distinction---In former case, no finance is involved on whose behalf contract is to be executed while in the later case, finance is the responsibility of the Authority on whose behalf work is being executed.

Shaiq Usmani for Plaintiff.

Kazim Hassan for Defendants

Date of hearing: 27th September, 2001.

2003 M L D 1077

[Karachi].

Before S. Ahmed Sarwana, J

Syed MUHAMMAD ALI ---Petitioner

Versus

MUSSARAT JABEEN and another---Respondents

Civil Petition No.S-230 of 2002, decided on 16th September, 2002.

(a) Islamic Law---

Divorce---"Talaq"---"Khula"--- Distinction---Khula' is the right of wife---Talaq is the right of husband---Distinction between the two' is that Khula' is a form of dissolution of marriage for a consideration to be paid by wife, where a Qazi or Judge decides the same to be a fit case for dissolution---Where a wife has developed such dislike or aversion that she cannot live with husband under any circumstances and pays consideration to him for the same, then she has a right to approach the Court to obtain dissolution of marriage bond from her husband.

B.Z. Kaikaus v. President of Pakistan PLD 1980 SC 160 fol.

Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97; The Holy Qur'an: Surah Al-Baqrah II, Verses 229-230; Surah Al ­Nisa, II, IV Ayat 128; Ma' Ariful Qur'an by Maulana Mufti Muhammad Shafi, Maktaba-e-Darul-Uloom, Karachi, First Authorized Edn., 1996. Vol. 1, pp. 572, 575, Vol. II, pp. 583, 584; The Meaning of the Koran by Abul A'la Maududi, Islamic Publication (Pvt.) Ltd., Lahore, 3rd Revised Edn., 2002, Vol. 1, p. 165; Vol. II, pp. 583-584; Code of Muslim Personal Law by Dr. Tanzil-ur-Rehman: Ahkam al-Quran, Cairo by Al-Jassas, 1335 -A.H., Vo1.1II, p. 391; Ibn Rushd Bidayatul Mujtahid, Cairo, 1379 A.H., Vol. II, p. 68; Al-Qurtabi: Al Jami al Ahkam al­ Qurani Cairo, 1936 A.D., Part III, p. 137; Anwar al-Tanzil known as Tafsir Baydawi by Baydawi and A Code of Muslim Personal Law by Dr. Tanzil-ur-Rehman, Islamic Publishers, Karachi, 1984 Edn., Vol. I, pp. 525 to 527 ref.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Decree for dissolution of marriage on ground of Khula' without a finding that both husband and wife could not live within limits prescribed by Allah---Validity---When a wife asks for Khula, she does so as it is not possible for her to live as wife within limits prescribed by Allah---If Judge after recording evidence of wife decides to dissolve marriage by way of Khula', he does so, because he comes to the conclusion that it is not possible for parties to live happily as enjoined by Allah---Respondent (wife) had clearly stated that attitude of petitioner (husband) was not good with her, he quarrelled with her on petty matters, abused her and sometimes beat her---Respondent in cross ­examination had categorically stated that she was not ready to live with petitioner at any cost, she wanted Khula' from him and was ready to forego her dower amount, thus, Family Court had no choice, but to allow wife's prayer for Khula'---Not incumbent upon the Judge to use phrase "it is not possible to live within the limits prescribed by Allah" while passing order for dissolution of marriage by way of Khula'--­Omission by Judge to mention such `phrase' would not make his order ineffective, unlawful or contrary to law relating to dissolution of marriage by way of Khula'---Family Court had reached the right conclusion and passed impugned order in accordance with law---High Court dismissed Constitutional petition in limine.

(c) West Pakistan Family Courts Act (XXXV of 1964)---

----S.5 & Sched.---Constitution of Pakistan (1973), Arts. 189 & 199--­Constitutional petition---Decree for dissolution of marriage on ground of Khula'---Contention of the petitioner (husband) was that Khula' granted by Court was contrary to Islamic Law as he had not consented to release respondent (wife) from marriage bond on receiving consideration from her---Validity---Such contention was based upon a view taken by Hanafi, Shafii, Maalki and Hambli Schools of Thought, according to which Khula' could take place only on acceptance of wife's offer by husband and a Judge could not force husband to divorce wife or order dissolution of marriage by way of Khula', if he came to conclusion that it was not possible for husband and wife to live within limits prescribed by Allah and wife was willing to forego her dower or pay some other consideration for her release---Supreme Court, in exercise of its powers of Ijtehad had drawn a different conclusion from Ayaat of Holy Qur'an and precedents of Holy Prophet as expressed in Khurshid Bibi's case (PLD 1967 SC 97)---Said judgment of Supreme .Court was the law declared in respect of Khula', which was binding on High Court in view of Art.189 of the Constitution---High Court repelled such contention of the husband.

Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 9 and B.Z. Kaikaus v. President of Pakistan PLD 1980 SC 160 ref.

(d) West Pakistan Family Courts Act (XXXV of 1964)---

----S.5 & Sched.---Constitution of Pakistan (1973), Arts. 189 & 199--­Constitutional petition---Decree for dissolution of marriage on ground of Khula'---Contention of husband was that Khula' granted by Court was not valid as he had not consented to release wife from marriage bond on receiving consideration from her---Validity---Husband after passing of impugned decree had sent a legal notice to wife calling upon her to collect her dowry articles within specified time, failing which he would not be responsible to return the same---Such letter not denied by husband clearly indicated that he had consented to grant of Khula' by Family Judge on expressing her hatred for her husband and offering to forego her dower---Such contention clearly reflected mala fide conduct of husband---High Court dismissed Constitutional petition in limine being mala fide.

Badrul Alam for Petitioner.

Muhammad Ramzan for Respondents.

Dates of hearing: 31st May, 9th and 16th September, 2002.

2003 M L D 1095

[Karachi]

Before Mushir Alam, J

Lt. MUHAMMAD SOHAIL ANJUM KHAN and others---Plaintiffs

Versus

ABDUL RASHEED KHAN and others---Defendants

Suit No. 1298 of 1989, decided on 15th August, 2002.

(a) Islamic Law.-----

---Succession---Gift---Will---Nomination by member of a Co-operative Society---Such nomination does not operate as a gift or will, thus cannot deprive other heirs, who may be entitled thereto under law of succession---Nominee is merely a trustee of allottee and he cannot become owner of property after demise of original allottee---Nominee remains accountable to legal heirs of original allottee for all benefits derived out of such property---As nomination does not confer any title in favour of nominee, mutation and transfer of title on basis of nomination would not be legal---Nominee by virtue of nomination simpliciter is not seized or possessed of any right, title or interest in property.

Amtul Habib v. Musarrat Parveen PLD 1974 SC 185; Fazal Shah v. Muhammad Dina and others 1990 SCMR 868 and Kamal Afzal Farooqui represented by Legal Heirs v. Begum Shahzada Farooqui 1989 CLC 110 ref.

(b) Transfer of Property Act (IV of 1882)---

----S.58(a)---Qanun-e-Shahadat (10 of 1984), Art. 129---Mortgage money, re-payment of---Effect---Person in possession and producing original receipts showing re-payment of loan--- Presumption would be that such payment had been made by person in whose possession original receipts were, but by such payment, he could not claim any title to the property---Where mortgage debt was paid by a third person, there would be no presumption that he was owner of property or had an title therein.

AIR 1926 Cal. 916 ref.

(c) Islamic Law---

----Succession---Immediately on demise of intestate, the property if any, devolves unto the legal heirs of intestate forthwith in accordance with their respective entitlement under Muslim Personal Law.

(d) Qanun-e-Shahadat (10 of 1984)-----

----Art.84---Writing and signature, comparison of---Jurisdiction of Court---Court in appropriate cases has jurisdiction to examine disputed signatures---Where party did not produce any witness to prove that deceased had signed and executed document in their presence nor any person acquainted with signatures of deceased was examined nor disputed signatures were referred to Handwriting Expert, then only course available to Court would be to compare disputed signatures itself.

Tahira Dilawar v. Ghulam Samdani 1995 SCMR 246 rel.

(e) Registration Act (XVI of 1908)---

----S.60---Qanun-e-Shahadat (10 of 1984), Art.90---Registered document---Presumption of correctness---Endorsement of Sub-Registrar in terms. of S.60 of the Act to the effect that-document has been executed by its executant is relevant consideration for proving execution of such document---Presumption of correctness is attached to a registered document that same has been made and signed, by person executing same before Competent Authority.

(f) Transfer of Property Act (IV of 1882)---

---S.54---Specific Relief Act (I of 1877), S.12---Limitation Act (IX of 1908), Art. 113---Agreement to sell property.--Validity---Such agreement does not confer any title over property, rather same creates an equity to have agreement specifically enforced ---Such, equitable right, even if presumed to be possessed, fades away and is lost by passage of time.

(g) Transfer of Property Act (IV of 1882)---

----S.55---Buyer cannot have a better title than that of a seller.

PLD 1958 SC 104 ref.

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

----S.188---Agent's authority---Scope---Agent could not convey property, when executant of power of attorney was bereft of any right or title in property.

K.B. Bhutto for Plaintiffs.

Iftikhar Javed Qazi for Defendants.

Date of hearing: 30th May, 2002.

2003 M L D 1130

[Karachi]

Before Azizullah M. Memon, J

SOBOO and 5 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.744 of 2002, decided on 9th December, 2002.

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

----S.497---Penal Code (XLV of 1860), Ss.380, 457, 324 & 429---Bail, grant of---One of the accused persons was allegedly caught by complainant party at the place of incident alongwith gun and live cartridges were also recovered from his possession---At bail stage it could not be said that said accused was not guilty of offence with which he stood charged---Bail was refused to said accused---Remaining five accused were alleged to have run away after complainant party chased them to apprehend them---Said accused persons though were said to have fired from their respective arms on complainant party, but no injury was suffered by anybody from complainant party---Said remaining five accused were admitted to bail.

Muhammad Ayaz Soomro for Applicants.

Mushtaque Ahmed Kourejo for the State.

2003 M L D 1162

[Karachi]

Before Muhammad Sadiq Laghari, J

RAJAB --- Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.24 of 2003, decided on 20th February, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-F(vi)/337-L(ii)/504--­Bail, grant of---Though as many as 8 injuries were found on the person of victim lady, but those had been attributed to 4 accused persons--­Injury on person of the victim lady which was fracture, was punishable with imprisonment for 7 years being `Ghyr Jaifah Munaqilah' whereas remaining injuries were punishable with imprisonment for 2 years--­None of the injuries was specifically attributed to a particular person--­Collective activity no doubt could also be an offence, but in circumstances of the case, the accused had a case for grant of bail.

Shafi Muhammad Memon for Applicant.

Anwar H. Ansari for the State.

2003 M L D 1191

[Karachi]

Before Wahid Bux Brohi, J

SHARBAT and another---Petitioners

Versus

THE STATE---Respondent

Criminal Bail Application No.69 of 2003, decided on 25th March, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of--­Further inquiry---Accused had not been attributed fatal shot and had not even made a single fire from their gun---General allegation was that all the accused persons issued a challenge ---Co-accused had been granted bail on ground of statutory delay while accused were in custody for a period of about one year and there appeared no progress in trial---Only formal witness namely Medical Officer had been examined--­Constructive liability of accused person required further inquiry--­Accused persons on merits having a good case, their abscondence alone should not come in the way of grant of bail---Fugitive from law, though would lose some of his rights, but he would not lose right of bail forever, and would be entitled to fair and just trial within a reasonable time---Accused in circumstances were entitled to grant of bail.

Sher Ali v. State 1998 SCMR 190; Noor Muhammad v. Gaman 1990 PCr.LJ 1457; Sher Khan v. State 1980 SCMR 193; Muhammad Sadiq v. State 1996 SCMR 1654; Muhammad Nazir v. State 1984 SCMR 206; Gul Sher v. State 19$6 SCMR 1862; Mumtaz Hussain v. State 1996 SCMR 1125; Muhammad Saeed Mehdi v. State 2002 SCMR 282; Mubashir Ahmad v. State 1989 PCr.LJ 244; State v. Mukhtar Ahmad Awan 1991 SCMR 322 and Jam Sadiq Ali v. State 1989 PCr.LJ 1910 ref.

Muhammad Ayaz Soomro for Applicant.

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

2003 M L D 1236

[Karachi]

Before Shabbir Ahmad and Maqbool Baqir, JJ

SHAH NAWAZ THAHEEM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.673 of 2002, decided on 1st April, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Bail, grant of ---Charas weighing 400 grams was allegedly recovered from the accused---Maximum punishment for the alleged offence was seven years as provided under S.9(b) of Control of Narcotic Substances Act, 1997---Case against the accused not falling within prohibitory clause of S.497, Cr.P.C., detention of the accused during the trial was not warranted---Accused was admitted to bail.

Gul Muhammad v. The State 2000 PCr.LJ 551 and Tariq Bashir v. The State PLD 1995 SC 34 ref.

Shafi Muhammad Memon for Applicant.

Anwar Ansari for A.A.-G. for the State.

2003 M L D 1274

[Karachi]

Before Wahid Bux Brohi, J

QALANDAR BAKHSH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.33 of 2003, decided on 25th March, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 148 & 149---Bail; grant of---Further inquiry---Eye-witnesses in their evidence had simply alleged that seven persons emerged and fired at the deceased---No specific name had been given in deposition which had been recorded, on oath by the Trial Court---Previous enmity arising out of murders of two cousins of complainant was though manifestly described in the F.I.R., but none was nominated at the trial---If prosecution could rely on statements recorded by Police under S.161, accused could equally press into service statements recorded absence of accused---Allegations against accused requiring inquiry, accused was admitted to bail.

Muhammad Ayaz Soomro for Applicant.

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

2003 M L D 1343

[Karachi]

Before Ghulam Nabi Soomro and Atta-ur-Rehman, JJ

SARFARAZ KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1549 of 2001, decided on 15th January, 2002.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---Further inquiry---Accused had alleged that his father and his brother were taken away by C.I.A. Police from their house and were detained there till their indictment in separate F.I.Rs,.--­Father of the accused had been granted bail by the Court---State Counsel did not oppose bail application of the accused and had conceded to the grant of bail to the accused---Case against the accused falling within the ambit of subsection (2) of S.497, Cr.P.C., the accused was admitted to bail.

Sh. Ghulam Sabir Niazi for Applicant.

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

2003 M L D 1375

[Karachi]

Before Ghulam Rabbani, J

MUHAMMAD HAMID QURESHI and others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.328 of 2002, decided on 27th May 2002.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/365/406/34---Bail, grant of---No name of eye-witness of incident was mentioned in the F.I.R. which had been lodged with delay of 14 days---No evidence was available against accused persons to connect them with commission of crime---No recovery of any incriminating articles had been made from the accused---Police had already recommended case of accused for their release---State Counsel too had raised no objection before Trial Court to grant of bail---Nothing was available to withhold the concession of bail in the case---Accused, who were in jail since their arrest, were entitled to grant of bail, in circumstances.

Sathi M. Ishaque for Applicants.

Fazalur Rehman, State Counsel.

2003 M L D 1385

[Karachi]

Before Wahid Bux Brohi, J

SHOUKAT ALI --- Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.43 of 2003, decided on 2nd April, 2003.

Criminal Procedure Code (V of 1898)---

---S.497---Penal Code (XLV of 1860), S.302/34---Bail, grant of--­Allegation of causing fatal shot was attributed to accused alone--­Independent Mashir who was a police officer had captured accused within minutes of the occurrence---Version of complainant was also fully supported by two eye-witnesses ---Complainant party belonged to place different to residence of accused---Complainant could not, in circumstances, be said to have intentionally suppressed name of accused in first portion of his F.I.R.---Medical evidence did not come in conflict with ocular version---Accused could not prove that he was minor within meaning of Juvenile Justice System Ordinance, 2000 a,; Medical Board on examination of accused hail opined that age of accused was 21 /22 years---Prima facie sufficient evidence was available against accused to connect him with the offence of Qatl-e-Amd---Bail application of accused was dismissed, in circumstances.

Amjad Yameen v. State 2000 YLR 2928; Mahfooz-ur-Rehman v. State 2001 PCr.LJ 1692; Asghar Ali v. State 2002 MLD 1566 and Parveen Akhtar v. State 2002 SCMR 1886 ref.

Muhammad Ayaz Soomro for Applicant.

S. Mehboob Ali Shah for the State.

Date of hearing: 2nd April, 2003.

2003 M L D 1407

[Karachi]

Before Muhammad Ashraf Leghari, J

NASEER AHMED --- Petitioner

Versus

THE STATE----Respondent

Criminal Bail Application No.318 of 2003, decided on 7th April, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Bail, grant of--Further inquiry---F. I. R. was lodged two days after the alleged occurrence---Alleged abductee had appeared before the Judicial Magistrate and had sworn affidavit wherein she' had stated that she had not been abducted and did not make any complaint against the accused ---Nikah of alleged abductee was performed and she affixed her thumb- impression on it in presence of Nikah Khawan and the witnesses --Alleged abductee remained in police custody for about two days before recording her statement which cast a serious doubt. about genuineness and voluntariness of her statement---Record had demonstrated that alleged abductee was consenting party and commission of Zina was yet to be established by prosecution when evidence would be recorded---Case of accused having come under scope of S.497(2), Cr.P.C., he was admitted to bail.

Mahmood A. Qureshi for Applicant.

Habib-ur-Rasheed for the State.

Date of hearing: 7th April, 2003.

2003 M L D 1474

[Karachi]

Before Wahid Bux Brohi, J

NAZAR MUHAMMAD and another---Petitioners

Versus

THE STATE---Respondent

Criminal Bail Application No. 138 of 2003, decided on 1st April, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/148/149---Bail; grant of---Further inquiry---Delay of six days in lodging F.I.R. and two versions against the accused had made out a case of further inquiry against accused---Eye-witnesses in their affidavits had exonerated accused---Case against accused being of two versions, accused were admitted to bail.

Shahbaz All Brohi for Applicants.

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

2003 M L D 1492

[Karachi]

Before Muhammad Ashraf Leghari, J

Haji BAGAN JAMALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application-No.167 of 2003, decided on 1st April, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/324---Bail, grant of--­Further inquiry---Name of accused did not appear in the F.I.R. and after his arrest he had not been put to identification test---None of the prosecution witnesses had mentioned the name of accused in statement under S.461, Cr.P.C.---Accused had produced' licences of weapons recovered from his possession---Accused was arrested on the basis of statement of co-accused, which was inadmissible in evidence---Case of accused had come under scope of further inquiry as no evidence was collected by police against him and his involvement in the commission of offence was yet to be proved by prosecution---Accused was granted bail, in circumstances.

Shaukat Hussain Durrani for Applicant.

Abdul Nabi for the State.

Date of hearing : 1st April, 2003.

2003 M L D 1526

[Karachi]

Before Wahid Bux Brohi, J

GUL HASSAN --- Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.102 of 2003, decided on 31st March, 2003.

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

----S.497(2)---Penal Code (XLV of 1860), Ss.302/201/34/114---Bail, grant of---Further inquiry---Accused was mentioned as an unidentified person in the F.I.R. but prosecution witnesses had stated in their statement that the said person was the accused---Identification test held through the prosecution witnesses subsequently, would bring the case within ambit of further inquiry---Accused was allegedly armed with gun, but he did not use the same---Role played by accused in the offence under S.201, P.P.C. and also his constructive liability would require further inquiry---Accused and one other person during proceedings of Constitutional petition, were found illegally detained by Raid Commissioner who raided the police station and no entry was found in the Registers about arrest of accused despite accused was detained for a period of about one and half months---Accused was admitted to bail, in circumstances.

Wahid Bux Baloch for Applicant.

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

2003 M L D 1550

[Karachi]

Before Zahid Kurban Alavi and Muhammad Mujeebullah Siddiqui, JJ

MEHRAN---Applicant

Versus

THE STATE and others---Respondents

Criminal Miscellaneous Application No.47 of 2003, decided on 23rd May, 2003.

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

----S.491(1-A)---High Court Sindh Notification No.GAZ-XII-Z-14 dated 7-9-2002---Effect of S.491(1A), Cr.P.C.---Concurrent jurisdiction has been conferred on the Sessions Judge subject to the direction issued by the High Court and S.491(1-A), Cr.P.C. has not the effect of taking away the jurisdiction of the High Court---Principles.

Subsection (1-A) of section 491, Cr.P.C. empowers the High Court to direct by general or special order published in Official Gazette that all or any of its powers specified in clauses (a) and (b) of subsection (1) of section 491 and subject to such conditions if any as may be specified in the order, be exercisable also by a Sessions Judge and an Additional Sessions Judge, within the territorial limits of a Sessions Division.

It is evident from the language of subsection (1-A) of section 491, Cr.P.C. that a concurrent jurisdiction has been conferred .on the Sessions Judges and Additional Sessions Judges subject to special order or general order issued by the High Court. The word `also' used in subsection (1-A) is indicative of the fact that the power under section 491 can be exercised by the Sessions Judges and Additional Sessions Judges as well, if empowered by the High Court, itself. The conferment of this concurrent jurisdiction on Sessions Judge/Additional Sessions Judge does not take away the jurisdiction vested in the High Court. The power conferred under subsection (1-A) read with notification issued by the High Court can be compared with the power of revision conferred on the Sessions Judge, under section 439-A, Cr.P.C. which provides that the Sessions Judge may exercise any of the powers conferred on. High Court by section 439, Cr.P.C. in respect of proceedings before Magistrate. Under the Civil Procedure Code also the High Court and District Judge have concurrent jurisdiction to entertain the revision application under section 115, C.P.C.

The sole effect of the insertion of subsection. (1-A) in section 491, Cr.P.C. is that the concurrent jurisdiction has been conferred on the Sessions Judge subject to the direction issued by the High Court and it has not the effect of taking away the jurisdiction of High Court. The power on Sessions Judge has been conferred in addition to the powers vested in High 'Court and not in derogation of the said powers. In all appropriate cases High Court shall continue to exercise the jurisdiction under section 491, Cr.P.C. notwithstanding the provisions contained in subsection (1-A) of section 491, Cr.P.C. Looking to the nature of complaints which are pouring in and the magnitude of highhandedness on the part of various agencies, the High Court shall always consider whether the matter should be considered at the level of High Court instead of Sessions lodge. It has been complained in several cases that the efficacious and effective remedy is not provided in all the cases by the Sessions Judges.

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

----S.491(1-A)---Habeas corpus petition---Incharge, Police Station who had detained the detenue was not able to give any plausible explanation for arresting the detenue in a crime which was registered at different police stations ---Mashirnama of arrest had been fabricated to use as ruse for giving the colour of legality to the illegal detention of the detenue--­Present case being one of highhandedness, High Court directed the Incharge of the Police Station concerned to pay the compensation of Rs.5,000 to the detenue from his own pocket ---Detenue, who was present in the Court, was ' directed to be released forthwith.

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

----S.491(1A)---Where no petition under S.491, Cr.P.C. had been filed in respect of the alleged detenue, High Court declined to undertake deeper probe and appreciation of the facts about the said detenue.

Khalid Hussain Shahani for Applicant.

Ali Azhar Tunio, Asstt. A.-G. for Respondents.

Gul Hassan through Habibullah Ghori for Detenue No.2.

Date of hearing: 23rd May, 2003.

2003 M L D 1570

[Karachi]

Before Sarmad Jalal Osmany, J

MUHAMMAD ISHTIAQ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.70 of 2003, decided on 17th February, 2003.

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

----S.497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)---Bail, grant of---Further inquiry---Whether or not female with whom accused had claimed to have married, was divorced earlier by her husband, was a question of further inquiry and only Trial Court could establish such fact ---F.I.R. Was delayed by three years for which no reasonable explanation -was given---Question of said F.I.R. having been lodged after consultation thus could not be ruled out--­Tentative conclusion was borne out by the fact that some difference of opinion existed on religious matters between the accused and the complainant---Both accused and the female who allegedly had contracted marriage in June, 1998 were living together as husband and wife---Prima facie, present case could hardly be the one of Zina---Accused was entitled to bail in circumstances.

Allah Dad v. Mukhtar and another 1992 SCMR 1273 ref.

Khawaja Naveed Ahmed for Applicant.

Shafi Muhammadi for the Complainant.

Arshad Lodhi, A.A.-G. for the State.

Date of hearing: 17th February, 2003.

2003 M L D 1578

[Karachi]

Before Muhammad Moosa K. Leghari and Altaf Hussain Chandio, JJ

ABBAS alias GHULAM ABBAS and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-224 of 2001, decided on 4th May, 2001.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302(a)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)--­Bail, grant of---Further inquiry---Identification test of accused was held one month after the incident---Minimum requirement for mixing accused with dummies was 10 for each accused, but in the present case 10/12 dummies in all had been mixed up while there were two accused persons in the case---Identification test was purported to have taken place before Civil Judge and memo. of identification was prepared by him, but even then he was not sure as to how many dummies had been mixed up---Such dereliction/lapse on part of the Civil Judge was absolutely unwarranted as he was judicial officer and was required to act strictly in accordance with law but he did not apply his mind and signed identification memo. prepared by some one else in a mechanical manner---Features of accused persons were not given in the F.I.R. and identification memo. had been witnessed by complainant who had identified the accused persons which was another illegality having been committed to render identification test dubious---Mere recovery of gun after expiry of one month of registration of F.I.R. was not sufficient to contend that there were reasonable grounds to believe that accused were guilty of alleged offence---Case requiring further inquiry as contemplated under S.497(2), Cr.P.C., accused persons were admitted to bail.

Muhammad Sharif Qazi for Applicants.

Muhammad Ismail Bhutto for the State.

2003 M L D 1589

[Karachi]

Before Muhammad Sadiq Laghari, J

IKRAM alias GORA---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.148 of 2003, decided on 31st March, 2003.

Criminal Procedure Code (V of 1898)---

----S.497---Prohibition (Enforcement of Hadd) Order (4 of 1979)--­Arts.3 & 4--Bail, grant of---Allegation against accused was that of possession and sale of narcotic substances i.e. 100 grams heroin and 200 grams Charas, but seizure memo. as well as F.I.R. did not indicate the drawing of representative sample---Report of Chemical Examiner though was in respect of 10 grams Charas and 1 gram heroin, but that by itself did not connect the samples with the stuff allegedly seized from the accused---Was yet to be established during trial that the stuff got examined chemically was in fact drawn from the material allegedly seized from the accused---Bail was granted to accused, in circumstances.

Collector of Customs v. Nasim Amir Butt and others 2001 SCMR 1083 and Waqar Khan v. The State 2003 PCr. LJ 789 ref.

Lalchand Mamtani for Applicant.

Mohsin for the State.

Date of hearing: 31st March, 2003.

2003 M L D 1591

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

NAZEER AHMED and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.606 of 2001, decided on 30th January, 2002.

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

----S.497---Bail, grant of---Administration of criminal justice---Principle of innocence and its applicability for purpose of grant of bail---Principle of presumption of innocence was applicable for the purpose of general law and until and unless the person was convicted, he was not to be treated guilty, but such principle was not applicable for the purpose of grant of bail, otherwise all prohibitory provisions in that regard in the law, would become redundant, superfluous and nugatory---If the view was held that every person was innocent until and unless convicted and thus he should be released on bail, there would be no offence for which a person could be refused bail and in that event entire criminal law would have to be re-written---Concept of innocence could not be stretched to the extent which could do violence to the entire Scheme of . Criminal Administration of Justice prevailing for the last 150 years---Scheme of Criminal Law was that notwithstanding the presumption, of innocence in favour of a person who had not been convicted, bail was not to be granted to a person charged with the offences which were punishable with heavy punishments and in respect of the offences which were heinous in nature and to the persons who were alleged to be desperate, hardened and dangerous criminals or who were previous convicts---Any system of law which did not keep in view the state of discipline, peace and tranquility as well as the basic purpose of the law and establishment of Government i.e. protection of life, liberty and property of the citizens, was bad to that extent because it would militate against the basic human and fundamental rights of the citizens---Balance was always to be struck between the liberty of one person and the fundamental and human rights of the society collectively.

Muhammad Yousaf v. The State 2000 SCMR 79; Mashooq v. The State 2001 PCr.LJ 874; Wahid Bux v. State 2001 PCr.LJ 1885; Hassan v. The State PLD 1996 Kar. 487 and Abdul Rashid v. State 1998 SCMR 897 ref.

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

----S.497, third & fourth provisos---Penal Code (XLV of 1860), Ss.302/201/34---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Bail, grant of---Statutory delay---Effect---Trial Court had already adverted to the question of brutality on the part of accused persons and the manner in which they were alleged to have committed sodomy on a young boy and thereafter were alleged to have committed his murder and had further attempted to cause disappearance of evidence by burying the victim---For ascertaining cumulative effect of ultimate delay in disposal of case, it would not be merely mathematical calculation of excluding such time for which adjournment was obtained by accused or his counsel---Bail on ground of statutory delay was not to be granted and accused was not entitled for the concession where adjournment had been sought when prosecution witnesses were in attendance---Accused persons , in the present case, no doubt were within their right to take plea that they were liable to be tried by Juvenile Court, but while pursuing that remedy, consequent delay would be attributed to accused and they would not be entitled to the concession of bail on the ground of delay in disposal of the case---If any delay was caused in pursuing a remedy at the instance of accused persons then burden was to be borne by accused and prosecution was not to be saddled with the responsibility---No body could claim the fruit of his act by placing responsibility thereof on other party.

Abdul Rasheed v. The State 1998 SCMR 897 ref.

Muhammad Azeem Panhwar for Applicants.

Madad Ali Shah for the Complainant.

Abdul Hussain Motivala for the State.

2003 M L D 1603

[Karachi]

Before Wahid Bux Brohi, J

GUL MUHAMMAD alias GULOO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.183 of 2003, decided on 29th April, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/147/148/149--­Bail, grant of---Further inquiry---Matrimonial dispute existed between the complainant and his co-accused brother---Incident had taken place during the day time and fatal shots were specifically ascribed to two co­ accused persons---Presence of accused with gun though was manifest from the evidence, but neither complainant nor witnesses had alleged that accused had made a direct fire at the deceased or complainant party, but a general accusation was, made that he was among those who made fires---No recovery of any fire-arm had been made from the accused--­Case against accused being of further inquiry, he was admitted to bail.

Muhammad Sadiq v. The State 1996 SCMR 1654; Mumtaz Hussain v. The State 1996 SCMR 1125 and Abdul Khalil v. The State 1997 PCr.LJ 198 ref.

Azizul Haq Solangi for Applicant.

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

2003 M L D 1610

[Karachi]

Before Anwar Zaheer Jamali, J

RANO and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.73 of 2003, decided on 26th May, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of--­Further inquiry---Accused who were real brothers had been nominated in F.I.R. only on suspicion---On the basis of post-mortem report of deceased girl, it was yet to be seen whether it was a case of suicide committed by her or she was murdered by the accused persons or some­one else---Case of accused, in circumstances, needed further inquiry within the ambit of S.497(2), Cr.P.C.---Accused were admitted to bail.

Abdul Rasool Abbasi for Applicants.

Anwar Ansari for the State.

2003 M L D 1621

[Karachi]

Before Zia Pervaiz, J

WAHID BUX---Petitioner

Versus

GOVERNMENT OF SINDH and others---Respondents

Civil Petition No. S-63 of 2002, decided on 6th March, 2003.

Sindh Wild-Life Protection Ordinance (V of 1972)---

----Ss.13, 7, 10 & 17---Contempt of Court Act (LXIV of 1976), Ss. 6 & .7---Constitution of Pakistan (1973), Arts. 199 & 204---Constitutional petition---Quashing of proceedings---Making false contradictory statement before High Court---Effect---Complaint regarding harassment being caused by respondent (Inspector, Wildlife Department) by seizing birds on pretext that petitioiler was not 4cence holder; and that on being approached, Department declined to issue licence as petitioner was breeding birds of foreign origin not covered by licence---Respondent verbally denied such allegations before Court, but in comments filed later on, he stated to have seized parrots and registered a case against petitioner---Validity---Respondent by contradicting his earlier oral statement and fabricating back dated false case by using his official position to intimidate petitioner from pressing present matter, had interfered with functions of Court, which constituted contempt. of Court punishable under Ss.6 & 7 of Contempt of Court Act, 1976 read with Art.204 of the Constitution---Deputy Conservator of Department, had stated that no wild parrots or Australian parrots were seized at all; that for breeding/selling of foreign birds/parrots not found in Wilds of Pakistan, no permission or licence was required; and there wag no restriction on dealing of Australian pet birds---Respondent, in circumstances, had abused his official position and concocted a false case---High Court accepted unconditional apology of respondent, warned him to be careful in future, ordered him to pay Rs.10,000 to petitioner as compensation, quashed the proceedings of case registered against petitioner with directions to recover amount payable under the case from respondent and not from petitioner, complete disciplinary proceedings already initiated against respondent on account of such misconduct within six months and make entry of illegal acts of respondent in his service book.

Petitioner in person.

Masood A. Noorani, Additional A.-G. alongwith Hussain Bux Bhagat, Deputy Conservator.

Date of hearing: 25th February, 2003.

2003 M L D 1646

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

MUHAMMAD YOUSIF---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application. No. 18 and Miscellaneous Application No.78 of 2001, decided on 12th March, 2001.

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

----S.497---Penal Code (XLV of 1860), Ss.302/324/114---Bail, grant of---Accused was stated to be empty-handed at the time of incident and entire family of accused had been implicated in case by complainant--­Accused was entitled to bail, in circumstances.

Shafi Muhammad Memon for Applicant.

Abdul Hussain Motiwala for the State.

2003 M L D 1655

[Karachi]

Before Ghulam Nabi Soomro and Sarmad Jalal Osmany, JJ

THE STATE through Advocate­ General, Sindh---Appellant

Versus

Syed TARIQ HUSSAIN BACHA and 3 others---Respondents

Special Anti-Terrorism Acquittal Appeal No.127 of 1999 and Special Anti-Terrorism Appeal No.34 of 2000, decided on 20th April, 2002.

Criminal Procedure Code (V of 1898)---

----Ss. 417 & 410---Penal Code (XLV of 1860), S.302/34---Appeal against acquittal and against conviction of absconded accused---Trial Court acquitted four accused persons and ordered trial of seven absconded accused upon their arrest by bifurcating their case---One of the absconded accused was arrested later on and was tried by the same Court but presided over by different Judge who convicted the said accused and sentenced 'him to life imprisonment and other sentences against which said accused had filed appeal---Judgment of acquittal of four accused persons was based on well reasoning and they were rightly given benefit of doubt and thus appeal against such acquittal was dismissed---Prosecution had failed to establish its case against accused who was proceeded against after his arrest beyond any shadow of doubt---Important questions like missing of cap, shoes and rifle of deceased, non-availability of any empty; mobile going untouched, unhit when prosecution allegedly fired about 300 bullets at police party from all sides, had- been left unanswered and unexplained---Such circumstances had created great dents in the prosecution case---No tangible material was found on record to draw a different or, an adverse conclusion from the judgment of acquittal of four accused---Accused who was tried and proceeded against after' his arrest from his abscondence was also entitled to benefit of doubt---Appeal of accused against conviction and sentence was also accepted and was acquitted.

1992 SCMR 96; 1997 SCMR 569; 2000 SCMR 1038 and 2000 PCr.LJ 1434 ref.

Abdul Waheed Katpar and Muhammad Ikram Siddiqui for Appellant.

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

Date of hearing: 7th March, 2002.

2003 M L D 1665

[Karachi]

Before Mushir Alam, J

MUHAMMAD RIND and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.411 of 2002, decided on 20th November 2002.

Criminal Procedure Code (V of 1898)---

----S.497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Penal Code (XLV of 1860), Ss.147/148/149---Bail, grant of---Accused had stated that elders of the parties had intervened and were making efforts to settle differences between accused and complainant party---Accused also assured that complainant party had no objection if bail was granted to accused as it would facilitate resolution of long-drawn dispute between the parties--­Complainant and two injured persons present in Court had made a statement under their signature duly supported by affidavit in which they had confirmed the statement of accused and had stated that possibility existed for resolving the controversy---State Counsel also stated that bail be granted to accused---Accused was admitted to bail, in circumstances.

S. Madad Ali Shah for Applicants.

Rasheed A. Qureshi, Asstt. A.-G.

2003 M L D 1675

[Karachi]

Before Muhammad Sadiq Leghari, J

MUHAMMAD AYUB BUTT---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.324 of 2003, decided on 15th April, 2003.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.416 & 420---Bail, grant of--­Accused alongwith two others had been challaned, but out of them only accused was arrested and was in jail---Statement of complainant had shown that entire deal was with main accused and amount settled was to be paid to him---Under direction of main accused cash was delivered by complainant to accused who immediately passed on to the second co­ accused---Accused was not alleged to have settled the terms of the deal--­Practical and substantial involvement of accused in the crime in circumstances, was yet to be established during trial---Accused for the present had a case for grant of bail---Bail was granted to him.

Adrian Ahmad for Applicant.

Nemo for the State.

2003 M L D 1698

[Karachi]

Before Wahid Bux Brohi, J

PEERAL and others---Petitioners

Versus

THE STATE and others---Respondents

Criminal Bail Applications Nos.71 of 2003 and 57 of 2002, decided on 14th April, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/148/149/114/109--­Bail, grant of---Further inquiry---Complainant in his further statement had stated that because of annoyance he at the time of incident had falsely nominated some persons as culprits---Said further statement showed that complainant had dropped the main accused though in the F.I.R. he had alleged that all the accused persons including main accused had fired from their guns at his deceased son---Complainant in the F.I.R. had also named father of two accused persons to have conspired in the commission of offence, but in his further statement he did not mention him---Complainant had added the name of new assailant---Complainant, in circumstances, had not only modified his own version, but had demonstrated his act of false implication of some of accused in the earlier F. I. R. ---Statements of prosecution witnesses were recorded after eight days without any plausible explanation for such delay---Witnesses had also given a version different from that given in the F.I.R. and they had tried to be selective in giving roles to different accused persons--­Case against accused, in circumstances, required further inquiry about guilt of accused---Accused were allowed bail, in circumstances.

Shehzado v. The State PLD 2002 Kar. 402; Farrakh Shahzad alias Pappi v. The State 2002 PCr.LJ 1875; Syed Saeed Muhammad Shah v. The State 1993 SCMR 550; Tahir Abbas v. The State 2003 SCMR 426; Mushtaq v. The State 1997 PCr.LJ 1319; Mian Ghulam Rasool Bodla v. Deputy Commissioner, Bahawalpur 1999 SCMR 1307; Ghulam Mustafa alias Sathi v. The State 2000 PCr.LJ 2053; Razzak Ahmed v. The State 2002 SCMR 1876; Mst. Parveen Akhtar v. The State 2002 SCMR 1886 and Muhammad Waseem Nawaz nlias Chhina Loola v. The State 2002 SCMR 1279 ref.

Asif Ali Abdul Razzak Soomro and Muhammad Ayaz Soomro for Applicants.

Syed Mehboob Ali Shah for the State.

2003 M L D 1706

[Karachi]

Before Sarmad Jalal Osmany and Muhammad Moosa Leghari, JJ

RAKHIAL SHAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.607 of 2002, decided on 28th November, 2002.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/353/34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, grant of---Further inquiry---Only evidence available with prosecution against the accused was his confessional statement which was exculpatory in nature and was to the effect that he had not participated in crime in question---Case of accused being one of further enquiry, he was enlarged on bail.

Azizullah M. Buriro for Applicant.

Abdul Jabbar Khaskheli for the State.

2003 M L D 1715

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

SHABBIR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.271 and 853 of 2001, decided on 30th August, 2001.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/324/114---Bail, grant of---Accused had not caused any injury to two deceased persons and was alleged to have caused simple injuries to three prosecution witnesses with hard and blunt substance---Case against accused, in circumstances, was fit for grant of bail.

Shafi Muhammad Memon for Applicant.

Kazi Wali Muhammad for the State.

2003 M L D 1721

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

NISAR AHMAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.96 of 2003, decided on 22nd May, 2003.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/324/147/148/149---Bail, grant of ---F.I.R. showed that three persons had witnessed the occurrence---Statements under Ss. 161 & 164, Cr.P.C. and the, F.I.R. further revealed that accused had fired from his pistol at the deceased which hit him on his chest---Complainant had also sustained injury at the time of incident ---Co-accused according to the F.I.R. had been let off as they had not fired at the deceased---Case of accused, in circumstances, was distinguishable from the case of other accused persons---Accused had opened straight fire on the deceased which hit him on his chest and incident had taken place at 10-00 a.m. in Court premises and he was arrested at the spot alongwith the weapon---Accused though was in custody since, his arrest and Trial Court had not recorded evidence, but he could not claim bail as a right on the point of continuous detention as according to three eye-witnesses active role of firing at the deceased had been assigned to him---Accused being not entitled to bail on merits, his tail application was dismissed.

Nuruddin Sarki for Applicant.

Fazlur Rehman Awan for the State.

2003 M L D 1728

[Karachi]

Before Rehmat Hussain Jaffari, J

MOUR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.50 of 2003, decided on 3rd February 2003.

Criminal Procedure Code (V of 1898)---

----Ss:498 & 497(2)---Pre-arrest bail, grant of---Further inquiry---Only presence of accused had been shown at place of Wardat and he had neither been assigned any part in causing injuries to any witness nor it had been specifically mentioned that he had fired his gun in the air--­Even part of `Lalkara' or proverbial instigation had not been assigned accused---Recorded enmity existed between the parties ---Counter-versi­with regard to occurrence showed that one person lost his life from the side of complainant party and two persons from the accused party and one person received injuries---Dead bodies of both the sides were allegedly lying in the land adjacent to lands of each party giving impression that each party was the aggressor---Each party could take plea of right of private defence and in such situation it was yet to be determined as to which party was aggressor---Case of accused requiring further enquiry as contemplated under S.497(2), Cr.P.C. he was entitled to bail.

Shoib Mehmood Butt v. Iftikhar-ul-Haq 1996 SCMR 1854; 1996 SCMR 65; Allah Dino v. The State 2003 PCr.LJ 135; Fazal Muhammad v. Ali Ahmad 1976 SCMR 391 and Mst. Shafiqan v. Hashim Ali and others 1972 SCMR 682 ref.

Safdar Ali Bhutto for Applicant.

Ali Azher Tunio; Asstt. A.-G. for, the State

2003 M L D 1732

[Karachi]

Before Zia Perwaiz, J

MASHOOQ and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.641 of 2002, heard on 17th March, 2003.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/337-H(ii)/34---Bail, grant of---Deceased was murdered in broad-daylight and accused had fired at the chest of deceased with intention to kill him---Even if accused on the day of incident was 17 years and two and half months of age, he had the knowledge about the fate of incident when he intentionally took revenge of previous enmity---Deceased who was Pesh Imam of Village Mosque, was also 18 years young boy---F.I.R. was promptly registered after the incident and specific name and role had been assigned to the accused--­No exception of 14-15 years of age was available to accused---No case for grant of bail having been made out, bail application filed by accused was dismissed.

Asghar Ali v. The State 2002 MLD 1566; Raja Amanullah and another v. The State 2002 MLD 1817; Siraj Din v. Saghiruddin alias Goga and another 1970 SCMR 30 and Shahbaz Tufail v. The State 1978 SCMR 235 ref.

Qurban Ali Chohan for Applicants.

Riazuddin Siddiqui for Addl. A.-G. for the State.

2003 M L D 1737

[Karachi]

Before Rahmat Hussain Jaffari, J

WAZEER and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.77 of 2003, decided on 24th February, 2003.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/324/114/147/148/149--­Bail, grant of---Enmity existed between the parties before alleged incident---Part of instigation had been assigned to accused and ineffective firing had been attributed to the co-accused, but that fact had not been supported or corroborated, from Mashirnama of Wardat as no empty of firearm weapons were secured from place of Wardat---Question of vicarious liability of accused would be examined at the time of trial---Accused were entitled for concession of bail, in circumstances.

Rajab v. State 1995 PCr.LJ 366; Arshad v. State 1999 PCr.LJ 611; Ali Shah v. State 2002 PCr.LJ 707; Abdul Rehman v. Javed 2002 SCMR 1415; Amanat Ali v. State 1993 SCMR 1992; Attaullah v. State 1999 SCMR 1320 and Faraz Akram v: State 1999 SCMR 1360 ref.

Muhammad Hashim Chandio for Applicants.

Azizullah M. Buriro for the Complainant.

Mushtaque Ahmed Kourejo for the State.

2003 M L D 1741

[Karachi]

Before Muhammad Afzal Soomro and Zahid Kurban Alvi, JJ

MIANDAD and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Applications Nos.D-859, 902 of 2001 and 339-D of 2002 decided on 4th October, 2002.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/324/337-H (ii)/452/148/149---Bail, grant of---Complainant party had pleaded that oral version of complainant and prosecution witnesses was corroborated by medical evidence---Incident though had taken place during the night, but identification was shown in the light of electric bulbs which had excluded possibility of mistaken identity of accused---Specific part of causing fire-arm injuries to the deceased and injured was consistent with medical evidence---Police had recovered unlicensed crime weapons alongwith live cartridges on pointation of accused---Arguments advanced by complainant party appearing to be more weighty as compared to those raised by the accused, case for grant of bail had not been made out by accused in circumstances.

Jaffar v. The State 1980 SCMR 784; Shahbaz Gul v. The State 1984 PCr.LJ 2495; Muhammad Amin v. The State 1987 PCr.LJ 1404; Gulzar Ahmed v. The State 1992 PCr.LJ 1616 and Dhani Bux v. State 1989 SCMR 239 ref.

Muhammad Ismail Bhutto (in Cr.B.A. No.D-859 of 2001) for Applicant.

Aftab Ahmed 6orar (in Cr.B.A. No.902 of 2001) for Applicant.

Miss Faiz-un-Nisa Chana (in Cr.B.A. No.339 of 2002), for Applicants.

Ghulamullah Mahoto for the Complainant.

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

2003 M L D 1746

[Karachi]

Before Shabbir Ahmad, J

ALI MARDAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.518 of 2002, decided on 22nd April, 2003.

Criminal Procedure Code (V of 1898)---

----S.497, first Proviso---Penal Code (XLV of 1860), S.302---Bail, grant of---Tender age of the accused---Bail had been urged by accused solely' on the ground of his tender age of 14 years---Accused had been assigned role of causing injuries with fire-arm to the deceased and crime weapon had been secured from the accused---Normally under provisions of S.497(1), Cr.P.C., the infirm, woman and accused of tender age involved in the offence falling under prohibitory clause of S.497, Cr.P.C. were allowed bail, but if such an accused had been assigned active role resulting in death of the deceased, his case would not be fit for grant of bail---Bail application of accused was dismissed, in circumstances.

Khadim Hussain Solaggi for Applicant.

Anwar H. Ansari for the State.

2003 M L D 1772

[Karachi]

Before Muhammad Roshan Essani and Khilji Arif Hussain, JJ

Messrs COMMERCIAL TEXTILE PRINTERS---Appellant

Versus

MUHAMMAD YASIN---Respondent

High Court Appeal No.325 of 2002, decided on 30th April, 2003.

Succession Act (XXXIX of 1925)---

----S.384---Appeal---Letter of administration, grant of---Appellant was brother of deceased owner of the suit property---Appellant claimed to be partner, in the property in question as the same was a partnership concern---Respondents alleged that the partnership concern stood dissolved vide deed of dissolution of partnership---Further contention was that out of four partners, except the appellant, none had come forward to question the ownership of the property---Validity---Appellant had not produced any document to show that the partnership was not dissolved and was carrying on business after the date of dissolution--­Such facts could have been established by producing statement of accounts and/or return submitted to Income Tax Authorities--­Respondents had produced certificate issued by the Registrar of Firms according to which the appellant had retired from the firm---Entry regarding retirement of appellant was duly recorded in the Office of the Registrar of the Firms---High Court declined to interfere with the Letter of Administration, issued in favour of the respondents---Appeal was dismissed in circumstances.

Appellant in person.

Luqman-ul-Haque for Respondent.

Date of haring: 30th April, 2003.

2003 M L D 1785

[Karachi]

Before Zahid Kurban Alvi, J

MUHAMMAD AMIN ---Petitioner

Versus

THE STATE---Respondent

Criminal Bail Application No. 458 of 2002, decided on 4th October, 2002.

Criminal Procedure Code (V of 1898)---

----S.497(2)--Penal Code (XLV of 1860), Ss.302/504---Bail, grant of--­Further inquiry---Re-investigation revealed that distance between two points viz. place where accused were allegedly standing and the presence of deceased, was about 200 metres and it was impossible, in circumstances, to hit anybody in dark hours of night from such a long distance with a normal weapon as stated in the F.I.R.---Not possible that the complainant party had identified two persons from such a long distance---Independent witnesses had denied, the version of prosecution before Investigating Officer---Investigating Officer in the subsequent report, also had recommended severe departmental action against previous Investigating police officials for their defective investigation in the case---Fact that accused was a patient of tuberculosis and under treatment of Institute-of Chest Diseases, was ascertained by letters of Civil Surgeon and Director-cum-Chest Specialist of the Institute---All prosecution witnesses were related and hostile whose statements under S.161, Cr.P.C., were recorded after delay of one month---Bail had already been granted to co-accused---Case of accused had become one of further enquiry on all such scores---Accused haying been able to make out a case for grant of bail, he was admitted to bail.

Abdul Rasool Abbasi for Applicant.

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

2003 M L D 1823

[Karachi]

Before S. Ahmed Sarwana and Muhammad Mujeebullah Siddiqui, JJ

TAJIRANE MAWESHIYAN WELFARE ASSOCIATION---Petitioner

Versus

GOVERNMENT OF SINDH and others---Respondents

Constitutional Petition No. 143 of 2003, decided on 4th February, 2003.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Vires of tax---Validity---If any tax is levied without following the procedure laid down in law, High Court in its Constitutional jurisdiction is empowered to declare the same to be ultra vires the law and unenforceable.

(b) Sindh Local Government Ordinance (XXVII of 2001)----

----Ss.116 & 190---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Maintainability---Alternate remedy---Levy of cattle entry fee---Grievance of petitioner was that the Authorities had not followed procedure laid down in S.116 of Sindh Local Government Ordinance, 2001, while enhancing the cattle entry fee in the days of Eid­-ul-Azha--- Plea raised by the Authorities was that the petitioner had alternate remedy available in shape of appeal under S.190 of Sindh Local Government Ordinance, 2001---Validity---Where the fee had been enhanced only in respect of the animals to be sacrificed in the forthcoming Eid-ul-Azha, the remedy of appeal under S.190 of Sindh Local Government Ordinance, 2001, was neither efficacious nor adequate---High Court directed the Authorities to charge the fee as published in the official Gazette---Petition was allowed accordingly.

Mrs. Naveen Merchant for Petitioner.

Abbas Ali, Addl. A.-G. for Respondent No. 1.

Manzoor Ahmed for Respondent No.2.

Muhammad Nawaz Shaikh for Respondent No.3.

K.A. Wahab for Respondent No.4.

Sohail Abbas for Respondent No.6.

2003 M L D 1927

[Karachi]

Before Sabihuddin Ahmed, Shabbir Ahmed and S.Ali Aslam Jafri, JJ

MEHRUNNISA and others‑‑‑Petitioners

Versus

ASSISTANT REGISTRAR, COOPERATIVE SOCIETIES (RECOVERIES)‑‑‑Respondent

Constitutional Petitions Nos.D‑395 of 1989 and D‑1486 of 2001, decided on 19th June, 2003.

(a) Cooperative Societies Act (VII of 1925)‑‑‑--

‑‑‑‑S.59‑‑‑Limitation Act (IX of 1908), Art. 182‑‑‑Order/award for recovery of money‑‑‑Forums provided for execution thereof under S.59 of Cooperative Societies Act, 1925‑‑‑Scope and procedure‑‑‑Recovery proceedings before forum as provided under S.59(2)(3) of the Cooperative Societies Act is subject to limitation in terms of Art.182 of Limitation Act, 1908‑‑‑Principles.

The provision of S.59(1), Cooperative Societies Act, 1925 gives, two alternative remedies to the person in whose favour an award has been given. The person can, on certificate signed by Registrar, execute it in the same manner as a decree of Civil Court or in alternative, he can apply for recovery of amounts due to him under the rules for the time being in force for recovery of arrears of land revenue, provided an application is accompanied by a certificate signed by Registrar or Assistant Registrar to whom said power has been delegated by Registrar.

By insertion of subsections (2) and (3), one more forum has been provided to the Bank/holder of an award to get it executed in addition to forum of Collector through Registrar or any person empowered by him in that behalf. While exercising such power, Registrar or his appointee has to adopt the procedure under Land Revenue Act and Rules made thereunder, but said forum has been equated with "Civil Court" for purpose of Article 182 of Limitation Act. Therefore, recovery proceedings before said forum would be subject to limitation in terms of Article 182. Subsection (3) not only controls the, recovery proceedings under subsection (2), but any application made to him for recovery or to take some steps‑in‑aid of such recovery as well.

Yaqoob Suleman Mayet, v. Deputy Registrar, Cooperative Societies 1989 CLC 311; Multi Line Associates v. Ardeshir Cowasjee PLD 1995 SC 423 and Bhimsen Hannant and others v. The Urban Bank, Muddebihal AIR 1947 Bom. 370 ref.

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

‑‑‑‑S. 59(3)‑‑‑Phrase "any application to take some steps‑in‑aid of such recovery" as used in S.59(3) of Cooperative Societies Act, 1925‑‑­Connotation and scope.

The phrase "any application ……… to take some steps‑in‑aid of such recovery" used in subsection (3) of section 59 of the Cooperative Societies Act, 1925 as referable to an application to take some steps to advance recovery proceedings. The words "steps‑in‑aid of such recovery" appear to be intended‑to cover an application, which is not an initial application for recovery, but an application to take some steps to advance recovery. That may be an application for the issuance of certificate. In absence thereof, the recovery proceedings cannot be taken.

Iqbal Qadri and Rashid Akhtar for Petitioners.

Suleman Habibullah, Additional Advocate‑General, Sindh, Abdul Aziz Khan and Syed Amjad Hussain for Respondents.

Dates of hearing: 4th March and 29th April, 2002.

2003 M L D 1935

[Karachi]

Before Zahid Kurban Alvi, J

AMIR BUX‑‑‑Petitioner

Versus

ALI MUHAMMAD alias KARO and 4 others‑‑‑Respondents

Criminal Miscellaneous Application No.93 of 1998, heard on 25th March, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss.302/452/114/148/149‑‑­Bail, cancellation of‑‑‑No specific allegation had been made in the application for cancellation of bail that accused, after release on bail were misusing the grace given to them but only a generalized ground had been taken in the application‑‑‑Accused were granted bail on recommendation of police made in a letter wherein it was stated that police after preliminary investigation had come to the conclusion that it was a fit case for grant of bail to accused‑‑‑Application for cancellation of bail was dismissed with warning to the accused that if any attempt was made by them to intimidate or harass complainant or his family or relations or any coercive action was taken to influence the witnesses and if notice of such action was brought before the competent Court, then liberty enjoyed by accused would forthwith be cancelled.

Ghulam Nabi v. The State 1994 MLD 867; Liaquat v. The State PLD 1994 SC 172; Vikio v. Abdullah 1980 PCr.LJ 602; Ali Raza v. The State 1989 PCr.LJ 1187; Tahir v. The State 1990 PCr.LJ 1198; Muhammad Tufail v. Nasir Mehmood 1994 PCr.LJ 1451; The State v Malik Mukhtiar Ahmed Awan 1991 SCMR 322; Anjum Farooq Paracha v. Waqar Zafar Chohan 1994 SCMR 451; Rafiullah v. The State 1998 SCMR 356; Sher and others v. The State 1979 SCMR 60: Akram Khan v. The State 1978 SCMR 242; Muhammad Afzal v Nazir. Ahmed 1984 SCMR 429; Amir Ali v. The State 1984 SCMR 521; Muhammad Abbas v. The State 1987 SCMR 483; Dr. Muhammad Aslam v. The State 1993 SCMR 2288 and Ali Sardar v. Gul Moeen 1981 SCMR 860 ref.

M. Ayaz Soomro for Petitioner.

Shafi Muhammad Memon for Respondents.

Date of hearing: 25th March, 1999.

2003 M L D 1940

[Karachi]

Before Zahid Kurban Alvi, J

Messrs AL‑NOOR SUGAR MILLS LTD. ‑‑‑‑Plaintiff

Versus

PROVINCE OF SINDH and others‑‑‑Defendants

Suits Nos.7 to 15, 22, 39 and 71 of 2003, decided on 29th January, 2003.

Civil Procedure Code (V of 1908)‑‑‑--

‑‑‑‑O.XXXIX, Rr.1 & 2‑‑‑Sugar Factories Control Act (XXII of 1950), S.16‑‑‑Application for suspension of Notification and interim relief‑‑­Authority Issued Notification under S.16 of Sugar Factories Control Act, 1950 wherein date for crushing season was specified and minimum purchase price of sugarcane for relevant crushing season was prescribed‑‑‑Applicants in their application filed under S.151 & O.XXXIX, Rr.1 & 2, C. P. C. had sought suspension of said notification‑‑‑Validity‑‑‑Prima facie applicants though could have an arguable case, the effect of suspending impugned notification would have grave and adverse effect upon sugarcane growers as their sugarcane had been harvested‑‑‑Consequences would be definitely unfair to sugarcane growers whose losses would be irreparable‑‑‑Applicants could not estimate as to what would be their loss to sugarcane growers in case they were directed to purchase sugarcane at notified price‑‑‑Applicants had taken the plea that fixation of price of sugarcane would have an adverse effect on their business, but to what extent, would be calculated in terms of numbers, which would be determined after recording of evidence‑‑­Application filed under S.151 & O.XXXIX, Rr.1 & 2 was dismissed, holding of that impugned notification would be valid for relevant crushing season and for next season would be again published and issue involved in case would be resolved by parties in the light of evidence produced then.

Dr. Farogh Naseem for Plaintiff.

Anwar Mansoor Khan, A.‑G., Sindh for Defendants.

Date of hearing: 29th January, 2003.

2003 M L D 1947

[Karachi]

Before Shabbir Ahmed, J

AL‑ABID SILK MILLS LIMITED‑‑‑Plaintiff

Versus

Syed MUHAMMAD MUDASSAR RIZVI‑‑‑Defendant

Suit No.822 of 2002, decided on 13th September, 2002.

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

‑‑‑‑O.XXXIX, Rr.1 & 2‑‑‑Temporary injunction, grant of ‑‑‑Essentials‑‑­ Party has to make out a prima facie case showing balance of convenience in his favour.

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

‑‑‑‑O.XXXIX, Rr.1 & 2‑‑‑Terms "prima facie" case ‑‑‑Connotation‑‑­Prima facie case could be spelt out, if serious question of law of fact was raised in the plaint, on which parties had to go to trial‑‑‑Objection by defendant as to maintainability of suit would not be a proper criterion in such enquiry.

Muhammad Mateen v. Mrs. Dino Mankji Chinoy PLD 1983 Kar. 387 and Sui Gas Transmission Company v. Sui Gas Employees Union 1977 SCMR 220 fol.

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

‑‑‑‑O. XXXIX, Rr.1 & 2‑‑‑Temporary injunction, application for‑‑‑Grant of relief on such application as claimed in the suit itself‑‑‑Scope‑‑‑No absolute bar in law against granting such relief in deserving cases‑‑‑Such discretion is limited to rare and exceptional cases.

Iftikhar Siddiqui v. Clifton Cantonment Board PLD 1998 Kar. 378; Al‑Jamiaul Arabia Ahasanuloom and Jamia Masjid v. Sibte Hasan 1999 YLR 1634 and India Cable Company Ltd. v. Smt. Sumatra Chakroborty AIR 1985 Cal. 248 rel.

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

‑‑‑‑Ss.12 & 54‑‑‑Contract Act (IX of 1872), S.27‑‑‑Constipion of Pakistan (1973), Art. 16‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2‑‑‑Suit for specific performance of negative covenant contained in letter of appointment and injunction‑‑‑Temporary injunction, grant of‑‑‑Such covenant was to the effect that defendant after leaving employment with plaintiff would not join other organization of similar trade for period of 11 months‑‑‑Plaintiff filed such suit, when defendant left its employment and accepted other employment of similar nature‑‑­Defendant's plea was that such restrictive covenant was obtained under coercion‑‑‑Validity‑‑‑Contract on such plea would be voidable and not void‑‑‑Defendant during employment had not elected to get such covenant declared as voidable ‑‑‑Such restriction could not be termed to be unreasonable as to time and scope i.e. for 11 months in home textile unit‑‑‑Defendant by such covenant was not restrained from getting employment in organization other than home textile unit‑‑Remedy in law, which was not challenged on any ground of Constitution to prevent such breach or its enforcement by judicial proceedings, could not be considered as contravention of Art. 16 of the Constitution or S.27 of Contract Act, 1877‑‑‑Plaintiff offered three months' salary to defendant‑‑‑Plaintiff had shown prima facie case‑‑‑High Court granted application for temporary injunction subject to deposit of such salary in Court within a week.

BNS Air Services (Pvt.) Ltd. v. Anwar Ali and another 1987 MLD 3009; Sunilchand C. Maumdar v. The Aryodaya Spinning and Weaving Mills AIR 1964 Guj. 115; Niranjan Shankar Golikari v. Century Spinning and Manufacturing Co. AIR 1967 SC 1098; Wessex Dairies Limited v. Smith (1935) 2 KB 88; Sanders v. Parry (1967) All ELR 803; Gopal Paper Mills v. S.K.G. Malhotra AIR 1962 Cal. 61; Ameejee v. American Plans PLD 1973 Kar. 49 and Ms. Atiqa Odho v. R. Lintas Ltd. PLD 1997 Kar. 57 ref.

Munir A. Malik for Plaintiff.

S.M. Yaqoob for Defendant.

Date of hearing: 4th September, 2002.

2003 M L D 1956

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

Ch. MUHAMMAD AYOOB and another‑‑‑Petitioners

Versus

DISTRICT JUDGE, SANGHAR and others‑‑‑Respondents

Constitutional Petition No.D‑415 of 2002, decided on 30th May, 2003.

Sindh Local Government Elections Ordinance (X of 2001)‑‑‑

‑‑‑‑S.14(b)‑‑‑Sindh Local Government Ordnance (XII of 1979), S.26(2)‑‑‑Constitution of Pakistan (1973). Art. 199‑‑‑Constitutional petition‑‑‑Disqualification of candidate and rejection of nomination papers‑‑‑Nomination papers of returned candidate were accepted by Returning Officer after rejecting the objections raised by a voter‑‑‑Said voter had called in question eligibility of the candidate on the ground that in the year 1987 he being Chairman of Town Committee was removed from the office of Chairman of Town Committee for having committed major irregularities amounting to abuse of power and misconduct and also had committed acts of corrupt practices‑‑‑Nomination papers of candidate on filing appeal by said voter/objector, were rejected by District Returning Officer finding him disqualified to contest the election‑‑‑High Court under its Constitutional jurisdiction, by way of interim order, allowed the candidate to contest election, subject to condition that result of election would not be declared till decision of Constitutional petition‑‑‑Candidate having secured maximum votes was declared successful unofficially and official result was not announced in view of the order of High Court‑‑‑When Constitutional petition of the candidate was finally dismissed, next candidate was declared successful, election petition of the candidate was dismissed by Election Tribunal and disqualification of the candidate was upheld‑‑‑Said candidate had filed Constitutional petition against orders of Appellate Authority and Election Tribunal‑‑‑Petitioner/candidate had contended that expression "public service" contained in Cl.(h) of S.14 of Sindh Local Government Election Ordinance, 2000 must be confined to civil services of Federation and Provinces or certain other Statutory Bodies and could not be extended to elective offices of local bodies‑‑‑Contention was repelled because it was not correct to say that law only permitted removal of civil servants or salaried employees on ground of moral turpitude‑‑‑Section 26(2) of Sindh Local Government Ordinance, 1979 itself had stipulated removal of elected office‑bearers of Local Council guilty of abuse of power or misconduct‑‑‑Broader expression `public service' used in S.14(h) of Sindh Local Government Elections Ordinance, 2000 had itself indicated that intention of Legislature was to disqualify all persons required to vacate their respective offices on ground of moral turpitude‑‑‑Holding a salaried employee indulging in corruption ought to be disqualified from seeking an elective office while one doing so in the capacity of an elected representative would continue to remain eligible to contest election would be anomalous‑‑‑Returned candidate was rightly held disqualified under S. 14(h) of Sindh Local Government Elections Ordinance, 2000.

M.L. Shahani for Petitioners.

Naraindas C. Motiani for Respondent No.6.

Nemo for the Remaining Respondents.

Dates of hearing: 8th and 15th May, 2002.

2003 M L D 1961

[Karachi]

Before Anwar Zaheer Jamali, J

USMAN BILLO and others‑‑‑Plaintiffs

Versus

U. B. L. ‑‑‑Defendant

Suit No. 18 of 1999, heard on 29th November, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑Ss.42 & 56‑‑‑Suit for declaration, injunction and damages‑‑‑Plaintiffs in response to advertisement inviting offers for sale of plot published by defendant, gave their offer, which, though was highest, was rejected by defendant without assigning any reason‑‑‑Plaintiffs had claimed that they had given their offer in prescribed form accompanied with pay order in sum of Rs.15,00,000 and that they had arranged balance amount which had disturbed their business and that they were entitled to damages‑‑‑One of the terms for inviting offers was that defendant had reserved its right to reject any bid without assigning any reason‑‑‑Plaintiffs, in circumstances, had no locus standi or legal character to institute suit against defendant for seeking any relief from it‑‑‑No evidence had been produced by plaintiffs which could even slightly substantiate any allegation against defendant about its mala fides or ill‑will against them in non‑acceptance of their bid or allegation that within a short period of less than one week plaintiffs had suffered any financial loss, what to speak of loss of Rs.10.00 million as claimed by them‑‑‑Plaintiffs had left no stone unturned in causing harassment to defendant for which defendant was entitled for compensatory costs‑‑‑Suit filed by plaintiffs against defendant (Bank) having been proved to be frivolous, vexatious, having been filed by them only with the object of causing harassment to the Bank and its office, was dismissed with special compensatory costs.

2002 SCMR 1150; PLD 1972 Lah. 847; 1999 YLR 1153 and 1974 SCMR 337 ref.

Nemo for Plaintiffs.

Nafees Siddiqui for Defendant.

Date of hearing: 29th November, 2002.

2003 M L D 1970

[Karachi]

Before Rahmat Hussain Jafferi, J

ROSHAN ALI ‑‑‑Applicant

Versus

TALUKA COUNCIL KHAIRPUR NATHAN SHAH through Nazim and another‑‑‑Respondents

Civil Revision No.S‑2 of 1996, decided on 3rd March, 2003.

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

‑‑‑‑Ss.39, 42 & 54‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for declaration, cancellation of sale‑deed and permanent injunction‑‑‑Plaintiff had claimed that plot in dispute was purchased by him from the defendant on instalments which were paid and possession of plot was handed over to him in the year 1982‑‑‑Other defendant resisted suit and claimed that plot in dispute was purchased by him from defendant No. 1 in year 1980 prior to the purchase of said plot by plaintiff and he had paid instalments up to the year 1983 even after the alleged purchase of plot by the plaintiff‑‑‑Trial Court dismissed the suit on the ground that plot was already allotted to the defendant No.2 prior to the purchase by the plaintiff‑‑‑Appellate Court remanded matter to Trial Court to compel the defendant No. 1 to file written statement and cancel the registered sale‑deed under the impugned judgment and decree‑‑‑Validity‑‑‑Evidence on record had established that plot in dispute was purchased by defendant No.2 in the year 1980 on instalments which he paid up to the year 1983‑‑‑No evidence was on record to show that receipts of payment of instalments were forged and fabricated documents‑‑‑Defendant No. 1/vendee again sold the same plot to the plaintiff in the year 1982 without canceling earlier sale made by him in, favour of defendant No.2‑‑‑Second allotment/sale in favour of plaintiff was not proper and legal without canceling earlier documents of sale in favour of defendant No.2‑‑‑When plot in dispute was allotted/sold in favour of defendant No.2 in year 1980, same was not available for further sale/allotment‑‑­Appellate Court in circumstances had committed material illegality in passing judgment and decree in favour of plaintiff‑‑‑Judgment and decree of Appellate Court below were set aside and that of Trial Court were maintained.

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

‑‑‑‑S.52 [as amended by Sindh Act, (XIV of 1939)]‑‑‑Registration. Act (XVI of 1908), S.18‑‑‑Transfer of property‑‑‑Doctrine of lis pendens‑‑‑Application of S.52(1) of Transfer of Property Act, 1882 (as amended) would be attracted if a notice containing particulars, as mentioned in subsection (2) of S.52 of said Act about pendency of suit was registered under S.18 of Registration Act, 1908 and after registration of such notice property could not be transferred without authority of the Court.

Illahi Bux Kehar for Applicant.

Muhammad Hashim Chandio for Respondents.

Date of hearing: 3rd March, 2003.

2003 M L D 1976

[Karachi]

Before Sarmad Jalal Osmany and Rahmat Hussain Jafri, JJ

WAJAHAT HUSSAIN KHAN‑‑‑Applicant/Accused

Versus

THE STATE through FIA‑‑‑Complainant

Bail Application No. 1145 of 2002, heard on 24th September, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.403/408‑‑‑Bail, grant of‑‑­Further inquiry‑‑‑Accused himself brought to light the fraudulent transaction complained in the F.I.R.‑‑‑Person who was instrumental in informing higher management of the Bank that some fraud had taken place would himself be involved in the same, was not appealing to reason‑‑‑Charge against the accused was only of misappropriation of a minor amount which he had returned to Bank‑‑‑Matter, in circumstances, had become of further inquiry‑‑‑Accused was admitted to bail, in circumstances.

Naseem Qamar for Applicant.

Khursheed A. Hashmi, D.A.‑G.

Date of hearing: 24th September, 2002.

2003 M L D 1978

[Karachi]

Before Muhammad Sadiq Leghari, J

GHULAM RABANI and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.665 of 2002, decided on 19th March, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail, grant of‑‑­Complainant in the present case was same who had first nominated a set of persons alleging them to have killed his father in his presence‑‑­Complainant attributed each and every injury to a particular person out of them‑‑‑Complainant, in his subsequent version had advanced through Constitutional petition entirely different set of persons to have killed his father in his presence‑‑‑Five prosecution witnesses though claimed to be the eye‑witnesses of the incident, but had not implicated the accused persons‑‑‑Accused, in circumstances, deserved concession of bail.

Muhammad Sharif Siyal for Applicant.

Riazuddin Siddiqui for the State.

Date of hearing: 19th March, 2003.

2003 M L D 1981

[Karachi]

Before S. Ali Aslam Jafri, J

ISLAMUDDIN‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Revision No.72 of 2001, decided on 26th November, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.468‑‑‑Criminal Procedure Code (V of 1898), Ss.435 & 439‑‑­Appreciation of evidence‑‑‑Proceedings before Trial Court suffered from illegalities and infirmities going to the root of the case‑‑‑Non‑production of original receipts and original report of Handwriting Expert had caused great dents in the prosecution case and that was the reason as to why said documents were not shown and put to accused in his examination under S.342, Cr.P.C.‑‑‑Prosecution having failed in its duty to prove the guilt up to the hilt, benefit of doubt would go to accused‑‑‑Conviction awarded to accused by Trial Court, was set aside and accused was acquitted of the charge.

Naseemuddin Qamar for Applicant.

Fazlur Rehman Awan for the State.

Date of hearing: 26th November, 2002.

2003 M L D 1990

[Karachi]

Before Muhammad Afzal Soomro, J

WAZIR‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.212 of 2002, decided on 5th June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1890), Ss.324/353/399/402‑‑‑Bail, grant of‑‑‑Case against accused was of ineffective firing‑‑‑All four co‑accused had been granted bail excepting accused who remained in custody for more than two years‑‑‑Case being of hardship, bail was granted to such accused also.

Bati Khan v. Gulzar and 5 others 1988 SCMR 279; Muhammad Sadiq and another v. The State 1996 SCMR 1654; Syed Amanullah Shah, v. The State and another PLD 1996 SC 241; Muhammad v. The State 1998 SCMR 454; Muhammad Fazal alias Bodi v: The State 1979 SCMR 9; Behram v. The State 2003 PCr.LJ 73; Abdul Hameed and 2 others v. The State 2003 MLD 19; Aamir Ali Khan v. The State 1994 PCr.LJ 576; Irfanullah v. The State 1995 PCr.LJ 1329 and Abdul Zubair v. The State 1997 SCMR 966 ref.

Khalid Hussain Shahani for Applicant.

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

Date of hearing: 5th June, 2003.

2003 M L D 1993

[Karachi]

Before Gulzar Ahmed, J

ABDUL ABID‑‑‑Applicant

Versus

SIDDIQUE MOTI and another‑‑‑Respondents

Civil Revision Application No.31 of 2001, decided on 21st July, 2003.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VII, R.2‑‑‑Contract Act (IX of 1872), S.226‑‑‑Suit for recovery of amount‑‑‑Liability of the principal towards agent‑‑‑Trial Court decreed the suit against two defendants jointly and severally with finding that defendant No.2 was agent of defendant No.1 and defendant No.1 was liable for acts, deeds and transaction undertaken by defendant No.2‑‑­Appellate Court reversed the finding of Trial Court and found that as defendant No.2 had admitted the liability, relationship between both the defendants, if any, was of no consequence‑‑‑Appellate Court decreed the suit only against defendant No.2 who was agent of defendant No.1 and dismissed the suit against defendant No.1‑‑‑Validity‑‑‑Finding given by Appellate Court about the liability of defendant No.1 was not consistent with the evidence on record which was to the effect that plaintiff had entered in contract with defendant No.2 who was working as agent of defendant No.1 and plaintiff had conducted business of shares with defendant No.2 as an agent of defendant No.1‑‑‑Provisions of S.226 of Contract Act, 1872 provided that where the contract was entered into through an agent, obligations arising from acts done by an agent would be enforced in the same manner and would have same consequences as if' the contract was made and acts were done by the principal in person‑‑­Principal would be liable for the contract made and act done by the agent‑‑‑Plaintiff having been deprived of his money, he was entitled to an, appropriate compensation alongwith decretal amount‑‑‑Plaintiff was granted 10% per annum interest from date of filing of suit till realization of decretal amount‑‑‑Judgment and decree passed by Appellate Court whereby appeal of plaintiff was dismissed, were set aside and judgment and decree passed by Trial Court were maintained with modification.

Applicant in person.

M. Amin Memon for Respondent No. 1.

Abdul Latif Sheikh for Respondent No.2.

Date of hearing: 24th April, 2003.

2003 M L D 2001

[Karachi]

Before Zia Perwez, J

JAMIA MASJID REHMANIA‑‑‑Plaintiff

Versus

MUHAMMAD SHAHEEN and others‑‑‑Defendants

Civil Suit No. 551 of 2001, heard on 29th October, 2002.

Specific Relief Act (I of 1877)---

‑‑‑‑S.8‑‑‑Civil Procedure Code (V of 1908), O.II, R.2, O.VII, R.11 & O.XXXIX, Rr.1, 2‑‑‑Suit for possession‑‑‑Rejection of plaint‑‑­Application for restraining order‑‑‑Plaintiff could not produce title documents of property in dispute and had candidly admitted that title of property did not vest in plaintiff‑‑‑Plaintiff also could not explain as to how suit was maintainable in view of provisions of O.II, R.2, C.P.C.‑‑­Claim which was omitted by plaintiff in earlier suit, could not be made subject‑matter in a subsequent suit which was based on the same cause of action because a party could not be vexed twice on same cause of action‑‑‑Suit being hit by provisions of O.II, R.2, C.P.C., plaint was rejected under O.VII, R.11, C.P.C.‑‑‑Suit was dismissed alongwith application seeking restraining order.

M.K. Abbas v. United Bank Ltd. 1983 CLC 482; Muhammad Khalil Khan and others v. Mahboob Ali Mian and others PLD 1948 PC 131 and Abdul Hakim v. Saadullah Khan PLD 1970 SC 63 ref.

Umer Farooq Khan for Plaintiff.

Naseem Qamar for the Defendants.

Date of hearing: 29th October, 2002.

2003 M L D 4

[Lahore]

Before Ijaz Ahmad Chaudhary, J

MUHAMMAD LATIF ‑‑‑ Petitioner

Versus

S.H.O., POLICE STATION SANDA, LAHORE‑‑‑Respondent

Writ Petition No. 19591 of 2000, decided on 10th October, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.161/165/218/420/467/468/471‑‑‑Prevention of Corruption Act (I of 1947) S.5(2)‑‑‑Criminal Procedure Code (V of 1898), S.249‑A‑­Constitution of Pakistan (1973), Arts. 13 & 199‑‑‑Quashing of F.I.R.‑­Double punishment, protection against‑‑‑Pursuant to an occurrence a private complaint was registered against accused but on filing application by accused under S.249‑A, Cr.P.C., accused was acquitted­ Subsequently on same subject‑matter and on same facts and circumstances an F.I.R. was got registered against accused which was against Art.13 of Constitution of Pakistan (1973)‑‑‑Accused having succeeded in making out a case of quashing of F.I.R. subsequentl3 registered against him after his acquittal earlier, High Court quashed F.I.R. exercising discretion under Art. 199 of Constitution of Pakistan (1973).

Qazi Muhammad Arshad Bhatti for Petitioner.

Muhammad Jehangir Wahla, A.A.‑G. and M. Saleem Sehgal for Respondent No.2.

Date of hearing: 10th October, 2001.

2003 M L D 7

[Lahore]

Before Mian Saqib Nisar, J

RAZIA BIBI‑‑‑Petitioner

Versus

MARIAM BIBI through Legal Heirs‑‑‑Respondent

Civil Revision No.2195 of 1994, heard on 21st November, 2001.

Specific Relief Act (I of 1877)-‑

‑‑‑‑S. 42‑‑‑Transfer of Property Act (IV of 1882), S.43‑‑‑Suit for declaration‑‑‑Sale of land by a co‑sharer‑‑‑Widow of deceased original owner of land and his son inherited land to extent of 1/8 share and 7/8 share respectively‑‑‑Son of deceased sold some land from his share‑‑­Widow of deceased brought a suit claiming that she having 1/8 share in the specific Khasra numbers of land sold by her son to vendees/defendants, sale was illegal and void‑‑‑Trial Court as well as Appellate Court decreed the suit‑‑‑Plaintiff during pendency of appeal having died, her son/other sharer had become only legal heir of deceased plaintiff‑‑‑Son of plaintiff though had sold specific Khasra numbers to vendees/defendants, but he having land much in excess to land sold by him, could validly sell and deliver possession of land sold by him though such transfer was subject to final and ultimate partition of joint property because plaintiff had 1/8 share in every inch of joint holding with her son‑‑‑Matter was covered by S.43 of Transfer of Property Act, 1882 as deceased plaintiff had been succeeded by her son alone who had sold land to the vendee ‑‑‑Even if sale at relevant time was made by unauthorized person, but subsequently such person having acquired title of land in dispute, vendor/son of deceased plaintiff could not maintain an action as heir of his deceased mother/plaintiff‑‑‑High Court set aside judgments and decrees of two Courts below and suit filed by plaintiff was dismissed.

Ch. Muhammad Tufail for Petitioner.

Ch. Muhammad Rafiq Warraich for Respondents.

Date of hearing: 21st November, 2001.

2003 M L D 14

[Lahore]

Before Amir Alam Khan and Muhammad Sair Ali, JJ

TAJAMMAL HUSSAIN KHAN and 3 others‑ ‑‑Appellants

Versus

ALLAH DITTA and another‑‑‑Respondents

Regular First Appeal No. 175 of 1991, heard on 13th September, 2001.

Punjab Pre‑emption Ordinance (XVIII of 1990)‑‑‑

---Ss. 13 & 36‑‑‑Suit for pre‑emption ‑‑‑Making of Talbs‑‑‑Benefit of visions of S.36 of Punjab Pre‑emption Ordinance, 1990, could not be denied to pre‑emptor whose suit was filed and continued during the interregnum (from 1‑8‑1986 to 28‑3‑1990) as pre‑emptor could not be left without remedy just because his suit was dismissed during interregnum‑‑‑Suit filed during interregnum, which was kept alive by Court, pre‑emptor asserting his right, as would be available to him under Punjab Pre‑emption Ordinance, 1990, was required to prove only performance of Talb‑e‑Ishhad‑‑‑Rigors of S.13 of Punjab Pre‑emption Ordinance, 1990 as to performance of Talb‑e‑Muwathibat as also limitation, which was shortened from one year to four months, would not be applicable in his case‑‑‑Trial Court had found material contradictions in statements of witnesses who allegedly were witnesses of performance of Talb‑e‑Ishhad‑‑‑ Such witnesses contradicted each other as to point of time of visiting defendants for performance of Talb‑e‑Ishhad‑‑‑ Effect‑‑­Minor discrepancies no doubt had been found in statements of witnesses, but they were not expected to make statements with computerized precision‑‑‑Members of rustic society in a village, could not be remembering with precision as to time of visit‑‑‑Circumstances had proved that pre‑emptors went to vendee/defendants and asked them to accept their right and convey land to them but the vendees/defendants refused ‑‑‑Talbs having been performed by plaintiffs according to law, Trial Court was not justified to dismiss suit‑‑­High Court setting aside judgment and decree of Trial Court, decreed the suit.

Muhammad Shahzad Shaukat for Appellants.

Ustad Muhammad Iqbal for Respondents.

Date of hearing: 13th September, 2001.

2003 M L D 52

[Lahore]

Before Ch. Ijaz Ahmad and Syed Sakhi Hussain Bukhari, JJ

MUHAMMAD RAFIQUE‑‑‑Petitioner

Versus

QAMAR ALI and 8 others‑‑‑Respondents

Review Petition No.25‑C in First Appeal from Order No. 42 of 2000, decided on 10th April, 2002.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.114‑‑‑Jurisdiction‑‑‑A party, who submitted to jurisdiction of an authority has no right to wriggle‑out from such position on the principle of estoppel and waiver that Authority/Court had no jurisdiction to take cognizance.

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

‑‑‑‑S.11, 114, O.XLIII, R.1 (r) & O. XLVII, R.1‑‑‑Review petition‑‑­Additional District Judge dismissed appeal filed against refusal of interim injunction by Trial Court‑‑‑Petitioner without disclosing dismissal of his earlier appeal, filed further appeal, but same was dismissed by High Court‑‑‑Petitioner sought review of order. of High Court on the ground that Additional District Judge had no jurisdiction in the matter, thus, order passed by him was nullity in eyes of law‑‑‑Validity‑‑‑Order of Trial Court had merged in order of Additional District Judge‑‑‑Petitioner had himself filed appeal before Additional District Judge, who dismissed the same on merits‑‑‑Order of Additional. District Judge was final between the parties on the principle of res judicata in view of S.11, C.P.C.‑‑‑Petitioner wanted to re‑argue case in the garb of review petition, which was not permissible‑‑‑High Court dismissed review petition having no merits.

S. Sharif Ahmad Hashmi v. Chairman 1980 SCMR 711; Pir Bakhsh v. Chairman, Allotment Committee PLD 1987 SC 145 and Mst. Shamim Akhtar v. Alam Hussain 1975 SCMR 16 fol.

Aman Ullah Khan v. Chotey Khan 1978 SCMR 14; Federation of Pakistan v. Musarrat Bokhari 1993 CLC 2519; Abdul Ali v. Haji Bismillah 2002 SCMR 203 and Saleh's case PLD 1964 SC 97 ref.

Ch. Anwar‑ul‑Haq Pannun for Petitioner.

Taki Ahmad Khan for Respondents.

2003 M L D 54

[Lahore]

Before Mrs. Nasira Iqbal, J

Mst. TABASUM AKHTAR‑‑‑Petitioner

Versus

SABR ALI alias TASWAR ALI and 2 others‑‑‑Respondents

Criminal Miscellaneous No.737‑H of 2002, decided on 29th May, 2002.

Criminal Procedure Code (V of 1898) ‑‑

‑‑‑‑S.491‑‑‑Custody of minor‑‑‑Removal of minor‑‑‑Mother of the minor was involved in murder of her husband and during her judicial custody the minor was removed by the respondents who were her aunt and uncle in relations‑‑‑Minor was a female child of tender age being about 9 years old and was not removed forcibly by the respondents‑‑‑Effect‑‑‑Minor was entitled to love and affection of her mother, who was prima facie entitled to her custody, High Court, however, tentatively gave the custody of the minor to the petitioner and advised the respondents to approach Guardian Judge for custody of the minor‑‑‑Petition was allowed accordingly.

Aziz‑us‑Nisa v. Muhammad Yasin 1980 PCr. LJ 790 and Mrs. Hina Jilani v. Sohail Butt PLD 1995 Lah. 151 rel.

Abdur Rehman Khakwani v. Abdul Majeed Khakwani 1997 SCMR 1480 and Naziha v. The State 2001 SCMR 1782 distinguished.

M. Asghar Khan Rokhri for Petitioner.

Azam Nazeer Tarar for Respondents Nos. 1 and 2.

2003 M L D 57

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD AMJAD‑‑‑Petitioner

Versus

MUHAMMAD ANWAR and 10 others‑ ‑‑Respondents

Writ Petition No.4950 of 2002, decided on 27th March, 2002.

(a) Administration of justice‑‑‑

‑‑‑‑ All Courts and Tribunals are to act within four corners of law.

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

‑‑‑‑S.115, O.IX, Rr.8, 9 & O.XLI, Rr.17, 19‑‑‑Punjab Local Government Elections Rules, 2000, R.88‑‑‑Dismissal of proceedings for non‑prosecution‑‑‑Main matter, whether it was a suit, application, appeal or revision; could be dismissed in absence of a party only on a date on which hearing had to take place in the matter‑‑‑Court/Tribunal while restoring such proceedings had to be satisfied that sufficient cause existed for absence of such party on the date fixed for hearing.

(c) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑R.88‑‑‑Dismissal of Election Petition for failure of petitioner to appear‑‑‑Such dismissal has to be at a stage, when trial has commenced‑‑‑Trial commences after framing of issues and when parties are called upon to lead evidence.

(d) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑R. 88‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11 & O.IX, R.9‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Dismissal of election `petition on 2‑11‑2001 for non-­prosecution, when case was fixed for hearing arguments on application filed by petitioner under O. VII, R.11, C. P. C. ‑‑‑Respondents' plea for restoration of election petition was that they had noted wrong date of hearing due to misunderstanding‑‑‑Tribunal restored election petition‑‑­Validity‑‑‑No date of hearing was fixed in election petition itself as same was not to be heard on 2‑11‑2001, rather such application was fixed for hearing of arguments‑‑‑If at all Tribunal could have proceeded ex parte against election petitioners in such application, thereafter should have considered same, reply whereof was already on record‑‑‑Words "date of hearing" as used in O. IX, R.9, C.P.C., were not used in R.88 of Punjab Local Government Elections Rules, 2000 and absence thereof would not make any difference‑‑‑Reference in R. 88 of Punjab Local Government Elections Rules, 2000 was made to "stage of the trial of election petition" ‑‑‑Trial commences after framing of issues and when parties are called upon to lead evidence‑‑‑Dismissal for default of appearance envisaged in R. 88 of Punjab Local Government Elections Rules, 2000, has to be at a stage, when trial has commenced‑‑‑Respondents in election petition had not even filed written statement‑‑‑Matter was still at the stage of examination of election petition itself which could not have been dismissed for non‑prosecution on 2‑11‑2001‑‑‑Order of dismissal of election petition was without jurisdiction‑‑‑Cause shown in application for restoration of election petition stood made out, Tribunal had not acted in violation of law muchless without lawful authority in restoring the same‑‑‑High Court dismissed Constitutional petition in limine.

Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Scope‑‑‑Impugned order, if in its very nature promotes ends of justice and is otherwise fair, ought not to be interfered with in exercise of Constitutional jurisdiction merely for the reason that in the process of its passing, law has not been strictly followed.

Ch. Muhammad Ishaq for Petitioner.

2003 M L D 67

[Lahore]

Before Abdul Shakoor Paracha, J

PROVINCE OF PUNJAB through Collector, Faislabad and another‑‑‑Petitioners

Versus

Rana HAKIM ALI and another‑‑‑Respondents

Civil Revision No. 1428 of 1997, heard on 13th March, 2002.

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

‑‑‑‑Ss.42 & 54‑‑‑‑Civil Procedure Code (V of 1908), O.XIII, R.4‑‑‑Suit for declaration and permanent injunction‑‑‑Plaintiff claiming to be in possession of suit plot for the last 8 years having constructed thereon a house sought declaration to the effect that he was entitled to its allotment‑‑‑Trial Court dismissed the suit holding that suit plot did not exist at the spot and there was no plot in possession of the plaintiff‑‑­Appellate Court decreed the suit on the basis of possession slip produced by plaintiff‑‑‑Validity‑‑‑Survey Register and plan of Colony did not show existence of suit plot‑‑‑Plaintiff claiming to be in possession of suit plot for the last 18 years had neither submitted any site plan to Secretary, Housing Committee nor there was any receipt showing payment of tax by him nor there was any utility bill of electricity or Sui gas connection‑‑­Plaintiff was bound to prove the existence of suit plot in accordance with the scheme prepared by Housing and Physical Planning Department, Government of the Punjab, but he had failed to do so‑‑‑Possession slip had not been proved in accordance with law and exhibited under O. XIII, R. 14, C.P.C., which could not have been read in evidence by Appellate Court ‑‑‑Another ground for refusing declaration to plaintiff was that if suit plot subsequently became available, same would be disposed of in accordance with Circular No. SO(B‑II)/‑(IV)‑93 dated 25‑10‑1993 issued by Government of the Punjab, Housing and Physical Planning Department‑‑‑Appellate Court had committed material illegality while upsetting well‑reasoned judgment of Trial Court‑‑­High Court accepted revision petition, set aside impugned judgment and decree and restored that of Trial Court dismissing suit with costs.

2001 SCMR 1493 ref.

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

‑‑‑O.XIII, R.4‑‑‑Document not marked with an Exhibit number, but was bearing Mark‑B‑‑‑Effect‑‑‑Such document had not been proved in accordance with law, thus, had not been exhibited under O. XIII, R.4, C.P.C., and could not be read in evidence by Court.

M.A. Zafar for Petitioners.

M. Anwar Sipra for Respondents.

Date of hearing: 13th March, 2002.

2003 M L D 75

[Lahore]

Before Syed Zahid Hussain, J

SHABBIR HUSSAIN and another‑‑‑Petitioners

Versus

Mst. SIRAJ BIBI and 10 others‑‑‑Respondents

Writ Petition No. 270‑R of 1994, heard on 11th April, 2002.

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

‑‑‑‑S.2‑‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss. 10 & 11‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Evacuee land in possession of Forest Department‑‑­Cancellation of allotment of such land in favour of petitioners on the ground that allotted land was not available‑‑‑Notified Officer passed such order in view of prohibitory order dated 27‑2‑1965 issued by Chief Settlement and Rehabilitation Commissioner, West Pakistan, that evacuee land in possession of Forest Department whether notified or un-­notified, should not be allowed against claims under provisions of West Pakistan Rehabilitation and Settlement Scheme ‑‑‑Validity‑‑‑Formal acquisition of land by Forest Department was not necessary in order to attract prohibitory order, dated 27‑2‑1965‑‑‑Mere possession of Forest Department, whether notified or un-notified was sufficient to exclude such land from allotment under the Scheme‑‑Legal efficacy of directive dated 27‑2‑1965 had already been examined by Supreme Court and upheld‑‑‑Notified Officer had acted within his lawful authority to pass impugned order ‑‑High Court dismissed Constitutional petition in circumstances.

Forest Department through Division Forest Officer, Chhanga Manga, Lahore v. Muhammad Amin and 26 others 2002 SCMR 703; Muhammad Ayub and others v. The Province of Punjab 1989 SCMR 1033 and Province of Punjab v. Muhammad Mahmood Shah 1991 SCMR 1426 rel.

A.R. Shaukat for Petitioners.

Taqi. Ahmad Khan for Respondents Nos. 1 to 9.

Maqbool Elahi Malik, A.G. with Zahid Farani, A.A.‑G. for Respondents Nos. 10 and 11.

Date of hearing: 11h April, 2002.

2003 M L D 82

[Lahore]

Before Ch. Ijaz Ahmad, J

SABAZ ALI KHAN‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Petroleum and

Natural Resources, Islamabad and another‑‑‑Respondents

Writ Petition No.833 of 2002, decided on 17th April, 2002.

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

‑‑‑Arts.199, 187(2) & 190‑‑‑Constitutional petition‑‑‑Enforcement of order of Supreme Court‑‑‑Management Trainee Scheme of a company‑‑­Petitioner was not absorbed in regular service after completion of training‑‑‑Supreme Court while refusing leave to appeal filed against judgment of High Court dismissing Constitutional petition of petitioner, observed that in the case company decided to induct new trainees, petitioner would be at liberty to apply for the post and company would give due consideration to the fact that he had successfully completed training‑‑‑Company then invited applications for posts for several times, but every time did not consider the petitioner‑‑‑Validity‑‑‑Supreme Court had only given direction to respondents to consider case of petitioner at the time of appointment, which respondents did consider as was evident from chart placed on record‑‑‑Petitioner had secured 47.67% marks and retained position in merits list at Serial No.20‑‑‑Such chart also revealed that four ex‑trainees had been appointed having attained position in merits list at Serial Nos.2, 3, 4 & 13‑‑‑Respondents in such circumstances had not violated direction of Supreme Court‑‑‑Petitioner had concealed material facts from High Court as contents of Constitutional petition did not reveal at all that he had appeared in written test and interview and had not succeeded and attained position in merits list at Serial No.20, petitioner, therefore, had not approached with clean hands‑‑‑High Court refused to exercise discretion in favour of petitioner and dismissed Constitutional petition in circumstances.

Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCMR 1129; Agha Saleem Khurshid and another v. Federation of Pakistan and others 1998 SCMR 1930; Shamsul Arifin and others v. Government of Pakistan and others 1999 MLD 3446; Abdur Rashid v. Pakistan and others 1969 SCMR 141; Nawab Raunaq Ali v. Chief Settlement Commissioner and others PLD 1973 SC 236 and Rana Muhammad Arshad v. Additional Commissioner, Revenue, Multan and others 1998 SCMR 1462 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑­Discretionary in character‑‑‑Person seeking equity must come with clean hands.

(c) Equity‑‑‑

‑‑‑He who seeks equity must come with clean hands.

Shehzad Rabbani for Petitioner.

Saleem Baig for Respondents.

2003 M L D 90

[Lahore]

Before Ali Nawaz Chowhan, J

M. GHULAM NABI AWAN, ADVOCATE‑‑‑Petitioner

Versus

GOVERNMENT OF PAKISTAN and 3 others‑‑ ‑Respondents

Writ Petition No. 186 of 2002, decided on 29th March, 2002.

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

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Petitioner prayed for issuance of a writ to respondents to promulgate Act/Ordinance/Notification to the effect that supreme Authority of legislation vested with Holy Qur'an and that supremacy of Legislature was negatived as decided by Supreme Court in Abdul Wali Khan's case reported as PLD 1976 SC 57 (176)‑‑­Validity‑‑‑Petitioner could not point out any act or order of Government or Legislature, which according to him had offended Islamic provisions of the Constitution‑‑‑Petitioner also failed to state as to how petitioner was an aggrieved person pressing for issuance of a writ of mandamus‑‑­Petitioner had ‑a duty to tell High Court whether any of his property or personal rights had been invaded, thus, having a locus standi‑‑‑In presence of guarantees provided by Constitution against any law, Authority or individual acting against Injunctions of Qur'an and Sunnah, there was no necessity of issuing a writ in a general and vague terms as prayed for ‑‑‑Petitioner seeking implementation of observations in obiter made in PLD 1976 SC 57 had not explained as to why he was raising such issue now after 26 years and that too before High Court‑‑­Constitutional petition was dismissed in limine being not maintainable.

Abdul Wali Khan's case PLD 1976 SC 57 ref.

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

‑‑‑Art.199‑‑‑Issuance of writ by High Court‑‑‑Scope and basis‑‑‑Writ cannot be issued in vacuum‑ ‑‑Issuance of writ, a discretionary relief to he given by Courts based on grounds, which arc serious, solid, cogent, specific and reasonable.

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

‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Locus standi to file‑‑‑Only an aggrieved person could file a writ other than writ of habeas corpus or quo warranto.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Aggrieved person‑‑‑Scope‑‑‑No person can be said to be an aggrieved person unless he has a right in performance of statutory duty by a person performing functions in respect of any right, which he may have in relation to performance of such functions.

Ahbab Cooperative Housing Society Ltd. v. Commissioner, Lahore Division PLD 1978 Lah. 273 ref.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court, invoking of‑‑­Locus standi‑‑‑Person invoking such jurisdiction must establish a direct or indirect injury to himself and substantial interest in subject‑matter of proceedings.

Jan Muhammad v. Government of N.‑W.F.P. 1993 CLC 1067; Abdul Majid v. Deputy Commissioner, Sialkot 1991 CLC 1995; Abdul Majeeb Pirzada v. Federation of Pakistan PLD 1990 Kar. 9; Tariq Transport Co., Lahore v. The Sargodha‑Bhera Bus Service PLD 1958 SC (Pak.) 437 and Commonwealth of Massachusetts v. Andrew W. Mellon 262 US 447: 67 Lawyers Edn. 1078 ref.

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

‑‑‑Art. 199‑‑‑Words "aggrieved person" as used in Art. 199 of the Constitution‑‑‑Object and scope.

There is wisdom in the use of word "aggrieved" appearing in Article. 199 of the Constitution, because it helps in checking litigation for the sake of litigation by those, who may not be aggrieved. So that Courts are confronted with real questions, which should occupy their attention and not questions, which are of an academic nature involving political issues and where the issuance of a writ is a mere futile exercise.

Obviously Courts are forums performing functions of adversarial adjudication and such an adjudication is only possible on specific issues involving specific questions and challenging specific acts. It is not possible for Courts to look for issues and causes on behalf of a party. It is for an aggrieved party to put forth causes, issues and grievances in a decision and straightforward manner for enabling Courts in taking a decision which is pragmatic, practical and executable. Courts cannot be expected to act as is proverbially said in the literature "Don‑Quixts charging at the wind mills". Nor can Courts be expected to decide metaphysical questions of law or intricate political questions or ideas academically perceived without there being a justification shown for their resolution in legal realism. That is why, intricate political questions are not resolved through writ petitions, but politically in political forums.

Tasbhai Motibhai Desai v. Roshan Kumar AIR 1976 SC 578; Pakistan Steel Re‑Rolling Mills Association v. Province of West Pakistan PLD 1964 (W.P.) Lah. 138 and Islamic Republic of Pakistan v. Muhammad Saeed PLD 1961 SC 192 ref.

(g) Constitution‑‑‑

‑‑‑Object.

(h) Administration of justice‑‑‑

‑‑‑‑ People who come to Courts with a non‑serious approach and without doing home-work while endeavoring to point out impressive issues, do not add anything in positive sense for benefit of society, thus, they do not come with clean hands and deserve to be discouraged.

M. Ghulam Nabi Awan for Petitioner.

2003 M L D 98

[Lahore]

Before Muhammad Sair Ali, J

MUHAMMAD IQBAL KHAN and another‑‑‑Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Petroleum and

Natural Resources, Islamabad and 2 others‑‑‑Respondents

Writ Petition No.3299 of 2001, heard on 29th March, 2002.

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

‑‑‑‑Arts.199, 187(2) & 190‑‑‑Constitutional petition‑‑ ‑Enforcement of order of Supreme Court‑‑‑Management Trainee Scheme of company‑‑­Company did not absorb petitioners in regular service after completion of training‑‑‑Supreme Court while refusing leave to appeal filed against judgment of High Court dismissing Constitutional petition of petitioners observed that‑ "in case company decided to induct new trainees, petitioners would be at liberty to apply for the post and company would give due consideration ‑to the fact that they had successfully completed training" ‑‑‑Company then invited applications for posts from persons holding 1st Division throughout their academic career‑‑‑Petitioners though not being 1st divisioners made applications, but they were not selected‑‑‑Petitioners seeking their selection only on the basis of their completion of training filed Constitutional petition before High Court with a prayer to direct company to consider them in the light of order of Supreme Court‑‑‑Validity‑‑‑Contention of petitioners seeking to place embargo on company to prescribe other qualifications and criteria for selection of posts except those suitable to petitioners and restrain company from prescribing criteria and qualifications suitable for its professional and business needs, job requirements and managerial exigencies was repelled‑‑‑Petitioners had not shown that raising of qualifications and selection criteria was meant to exclude them from consideration for the post and to flout orders of Supreme Court‑‑­Company for fourteen posts had received 1333 applications, out of which 1320 applicants including petitioners had been found ineligible for. failing to meet selection criteria‑‑‑Out of 13 eligible candidates, only 6 had been selected‑‑‑Petitioners had not proved that process of scrutiny, of their applications alongwith others was selective or uneven or coloured‑‑‑High Court had no jurisdiction to judicially review selection and suitability process undertaken by company in its business interest‑‑‑Supreme Court in its order had not restrained company to prescribe other suitable and better qualifications in addition to condition of successful completion of training by applying Management Trainees‑‑‑Completion of training was not the sole criteria, but was one of the factors to be considered alongwith other relevant facts, factors and qualifications on comparison to other applicants for purposes of eligibility and ultimate selection‑‑­Absence of requisite higher qualifications and criteria in petitioners could not have won their "successful completion of training as Management Trainees" the advertised posts‑‑‑Words "due consideration" used in order of Supreme Court neither could be taken to mean that other prescribed qualifications should not at all be taken into account in case of petitioners nor same could be misinterpreted as "due priority" over all other eligible candidates resulting in discrimination to them‑‑‑High Court dismissed Constitutional petition in circumstances.

1999 MLD 3446 and 1998 SCMR 1549 ref.

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

‑‑‑‑Art.199‑‑‑Judicial review by High Court‑‑‑Scope‑‑‑Selection of a candidate for a post‑‑‑Suitability, determination of‑‑‑High Court had no jurisdiction to judicially review selection and suitability process undertaken by a company in the interest of its business‑‑‑Power of judicial review would be available to High Court in case of mala fide's of an agency or company, if falling within the scope of Art. 199 of the Constitution.

(c) Words and phrases‑‑‑

‑‑‑‑"Consideration"‑‑‑Meaning.

`Words and Phrases Legally defined by John B. Saunders, Butterworth, 1969 Edn. and Chamber's 21st Century Dictionary, p. 292 rel.

(d) Words and phrases‑‑‑

‑‑‑‑‑‑ Consider"‑‑‑Meaning.

Concise Oxford Dictionary, 7th Edn., p.201 rel.

(e) Word and phrases‑‑‑

‑‑‑"Due consideration"‑‑‑Definition.

Black's Law Dictionary, 5th Edn., of 1979 p 448 rel.

(f) Word and phrases‑‑‑

-----"Consideration" and "due consideration"‑‑‑Connotation. Meaning' and definition of term "consideration" and "due consideration" in concise are that all factors and circumstances meriting attention should be given due weight and significance in the give„ situation and cases by accounting for each and every aspect of the matter including the prescribed factor requiring appreciation subject, of course to other factors, criteria and qualifications needing thoughtful assessment.

Afnan Karim Kundi for Petitioner.

Nasir Iqbal Siddiqui for Respondent.

Date of hearing: 39th March, 2002.

2003 M L D 109

[Lahore]

Before Ali Nawaz Chowhan, J

MUSHTAQ HUSSAIN ‑‑‑ Petitioner

Versus

PROVINCE OF PUNJAB through Collector Jhelum District and 6

others‑‑Respondents

Civil Revision No.428 of 1995, heard on 1st April, 2002.

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

‑‑‑‑O.VII, R. 11‑‑‑Rejection of plaint‑‑‑Proper stage‑‑‑Duty of Court‑‑­Principles exhaustively stated.

Muhammad Zafar Khan v. Mst. Shehnaz Bibi and others 1996 CLC 94; Ali Muhammad and others v. Secretary Board of Revenue, Sindh, Hyderabad and others PLD 1977 Kar. 747; Mst. Amino Begum v. Nisar Ahmad PLD 1960 (W.P.) Lah. 159; Pakistan through Secretary v. Devachand Muljimal and others. PLD 1968 Kar. 107; Rashid, Ahmad v. Muhammad Khan PLD 1961 BJ 76 and Employees' Old‑Age Benefit Institution and others v. Javed Iqbal and others 1997 CLC 21 ref.

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

‑‑‑‑O. VII, R.11‑‑‑Rejection of plaint‑‑‑Order of rejection of plaint has to be a speaking order‑‑‑Courts are not supposed to act in haste after parties have been summoned, rather should decide petition under O.VII, R.11, C.P.C. before adjudicating upon anything else.

Muhammad Zafar Khan v. Mst. Shehnaz Bibi and others 1996 C LC 94 and Employees' Old‑Age Benefit Institution and others v. Javed Iqbal and others 1997 CLC 21 ref.

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

----O.VII, R.11 & O.XXXIX, Rr. 1, 2‑‑‑Rejection of plaint while deciding application under O.XXXIX, Rr. 1 & 2, C.P.C.‑‑‑Effect and validity of such act of the Court stated.

When a plaint is rejected after commencement of suit while deciding an application under Order XXXIX, Rules 1 and 2, C.P.C., the Court acts at the back of plaintiff, because the case is then fixed for passing of an interlocutory order and not for determination of question pertaining to maintainability of suit.

Such a rejection brings a surprise and some time a shock as it happens in the case of unexpected happening. This is neither fair nor proper nor a judicial act and it cannot be appreciated on the touchstone of fairness, while it certainly is an arbitrary order.

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

‑‑‑‑O.VII, R. 11, O.XXXIX, Rr. 1, 2; O.XVII, R.3 & O.VI, R.17‑‑­Rejection of plaint while deciding application under O.XXXIX, Rr.1 & 2, C.P.C.‑‑‑Trial Court, passed such order as plaintiff could not produce document of his title‑‑‑Appellate Court upheld such‑order ‑‑‑Contention of plaintiff was that passing of impugned order merely on the basis of an objection raised in written statement was not justified ‑‑‑Validity‑‑­Tendency of rejecting plaint while passing interlocutory order on application under O.XXXIX, Rr.1 & 2, C.P.C. was not appreciated‑‑­Plaintiff, after filing of plaint, ought to have been told in clear terms that his suit would be rejected, if he was unable to persuade Court on the question of his title‑‑‑Trial Court instead of rejecting plaint straightaway could resort to O.XVII, R.3, C.P.C. asking plaintiff to take required curative measures or remove the defect‑‑‑Trial Court was required to read O.VI, R.17 & O.VII, R.11, C.P.C. together but Trial Court had followed the opposite course‑‑‑High Court remanded case to Trial Court to re‑determine after hearing parties, whether rejection of plaint under the circumstances and without there being appended title deeds, was the requirement of law of not.

Sh. Zameer Hussain for Petitioner.

Syed Sajjad Hussain Shah, A.A.‑G. for Respondents.

Date of hearing: 1st April, 2002.

2003 M L D 120

[Lahore]

Before Maulvi Anwarul Haq and Mian Hamid Farooq, JJ

Prof. KAMRAN AZIZ‑‑‑Appellant

Versus

CHIEF EXECUTIVE, ALLAMA IQBAL MEDTCAL COLLEGE, LAHORE and 3

others‑‑‑Respondents

Intra‑Court Appeal No.452 of 1999 in Writ Petition Nos.9491, 20626, 20627 of 1999 and 1169 and 13515 of 1998, heard on 11th April, 2002.

Punjab Medical and Health Institution Act (IX of 1998)‑‑‑

‑-‑Ss.2 4 & 6‑‑‑Punjab Medical and Health Institutions Ordinance (VIII of 2002), Ss. 3 & 17‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Constitutional petition‑‑‑Notice to appellants after their transfer to vacate accommodation located in the premises of Medical College‑‑‑Contention of appellants was that after establishment of Medical or Health Institutions, only management and administration of Institutions stood vested in respondents and not the property as same had not been transferred by Provincial Government to respondent‑Institution, which had no lawful authority to deal with such property and eject appellants there from‑‑‑High Court dismissed Constitutional petitions filed by appellants‑‑‑Validity‑‑‑Matter at relevant time was governed by Punjab Medical and Health Institutions Act, 1998, though same had been repealed by S.17 of Punjab Medical and Health Institutions Ordinance, 2002‑‑‑Medical College in question had been notified as a Medical Institution and its Chief Executive had been appointed in terms of S.6 of the Act of 1998‑‑‑Such notified Institutions were to be body corporate with power also to hold and dispose of property‑‑‑Property in question, in absence of any provision to the contrary in Act of 1998. was to be held by such Notified Medical Institution, which was intended so by the Act providing for establishment of Medical Institution and notifying same‑‑‑Transfer of property or vesting of title in property would not be relevant to the present controversy‑‑‑Respondent‑Institution in matter of management and administration of property of Medical Institution would not be acting in derogation to a title vesting in Provincial Government in matter of allotment of premises or its vacation for purposes of management and administration of Institution itself‑‑‑Medical or Health Institution still continued to have power to hold property, though in S.3 of Punjab Medical and Health Institutions Ordinance, 2002, an embargo had been placed upon such Institutions to dispose of property without approval of Provincial Government‑‑‑Appellants under policy issued by Provincial Government and also relied upon by them, were liable to vacate premises upon transfer from Institution on expiry of prescribed period of two months‑‑‑High Court dismissed Intra‑Court Appeals and connected Constitutional petitions allowing one month period to appellants.

Shahid Javed v. Government of the Punjab 1998 PLC (C.S.) 122 and Pir Bakhsh represented by his Legal Heirs and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145 ref.

Muhammad Akram Sheikh for Appellant.

Uzair Karamat Bhandari and M. Fareed Chaudhry for respondents.

Date of hearing: 11th April, 2002.

2003 M L D 131

[Lahore]

Before Ch. Ijaz Ahmad and Sakhi Hussain Bukhari, JJ

Qazi MUHAMMAD SAQIB KHAN‑‑‑Appellant

Versus

GHULAM ABBAS and 2 others‑‑‑Respondents

Regular First. Appeal No.8 of 1995, heard on 14th March, 2002.

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

‑‑‑‑Ss. 4 & 12‑‑‑Contract Act (IX of 1872), Ss.2(b)(e)(g)(h) & 10‑‑‑‑Oral and written agreement‑‑‑Specific performance of such agreement‑‑­Essentials‑‑‑Agreement/contract made between competent parties with their consent for lawful consideration and lawful object is binding on the parties‑‑‑Contract can be in writing as well as oral‑‑‑Oral agreement is valid agreement in eye of law‑‑‑Oral agreement not specifying terms and conditions of agreement is not valid in eye of law ‑‑‑Intention of Legislature is that there should be a concluded valid contract‑‑‑Oral agreement is valid and enforceable as written agreement, provided same fulfils all requirements of a valid contract‑‑‑Oral valid agreement is enforceable and specific performance thereof can be granted‑‑‑Object of S.4 of Specific Relief Act, 1877 is to exclude agreements not enforceable by law.

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

‑‑‑‑S.12‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 17 & 79‑‑‑Contract Act. (IX of 1872), S.2(b)‑‑‑Suit for specific performance of agreement to sell‑‑‑Original vendor orally agreed to sell disputed land to plaintiff, but later on his father executed written agreement in favour of plaintiff‑‑­Trial Court dismissed suit‑‑‑Validity‑‑‑None of plaintiff's witnesses stated that original owner had received earnest money from plaintiff‑‑­Such oral agreement did not fall within definition of S.2(b) of Contract Act, 1872‑‑‑Plaintiff and his witnesses admitted in cross‑examination that father of original owner had not produced general power of attorney at the time of execution of agreement to sell‑‑‑Such written agreement having not been signed by plaintiff same was no agreement in eyes of law‑‑‑Plaintiff was bound to produce two attesting witnesses in view of Arts. 17 & 79 of Qanun‑e‑Shahadat, 1984‑‑‑Plaintiff had failed to prove that there was any oral or written agreement validly executed between him with original vendor and his father‑‑‑Plaintiff was not entitled to decree for specific performance‑‑‑High Court dismissed appeal as having no merits.

Bashir Ahmad v. Muhammad Yousaf represented by Muhammad Shafique 1993 SCMR 183; Gulzar Hussain v. Abdur Rehman and another 1985 SCMR 327; Abdul Majid v. Syed Muhammad Ali Shamim 2000 SCMR 1391 and Salman Ali v. Maqbool Hussain 2000 YLR 1938 ref.

(c) Practice and procedure‑‑‑

‑‑‑‑ Plaintiff/appellant has to prove his case independently and cannot get benefit of shortcomings of defendant/respondent.

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

‑‑‑O.XLI, R.33‑‑‑Issues not pressed at the time of arguments before Trial Court‑‑‑Effect‑‑‑Appellant had no right to assail finding on such issues before Appellate Court:

(e) Qanun‑e‑Shahadat (10 of 1984)‑--‑

‑‑‑‑Art.163‑‑Decision of case on the basis of oath‑‑‑Scope‑‑‑Duty of Court‑‑‑Such was one of the established modes for disposal of cases‑‑­Courts were bound to handle such cases with great care to avoid haste and rationalize emotional outbursts as such cases involved sensitiveness‑‑‑When evidence was available and could be produced, then resort to Art. 163 of Qanun‑e‑Shahadat, 1984 could not be made‑‑‑Where both parties had led evidence, then no adverse presumption could be drawn against defendant in case of his refusal to accept offer of plaintiff for decision of case on oath.

Shakir Ullah's case 1999 MLD 389; Muhammad Sharif's case 1987 CLC 2006; Sher Bahadar Khan's case 1992 MLD 46 and Bashir Ahmad's case 1999 SCMR 378 ref.

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

‑‑‑‑O.XXXIX, R.1‑‑‑Restraint order‑‑‑Decree obtained in presence thereof‑‑‑Nullity in eyes of law.

Abdul Wahid Malik and Abdul Rashid Malik for Appellant.

Nemo for Respondent No.2.

Mian Sarfraz‑ul‑Hassan for Respondent No.3.

Date of hearing: 14th March, 2002.

2003 M L D 138

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD IQBAL‑‑‑Applicant/Petitioner

Versus

Mst. GHULAM ROQUIA‑‑‑Respondent

Review Application No.49‑C of 2002 in Regular Second Appeal No.2 of 2000 (Multan), heard on 3rd April, 2002.

(a) Court Fees Act (VII of 1870)‑‑‑

‑‑‑‑S.7(v)(c) & First Sched. Art. 1‑‑‑Civil Procedure Code (V of 1908), Ss.100, 114, O.XX, R.14 & XLVIII, R.1‑‑‑Punjab Pre‑emption Act (IX of 1991), S.5‑‑‑Decree in pre‑emption suit was granted by Appellate Court subject to payment of Rs.1,45,000‑‑‑Prayer of pre­emptor in regular second appeal was for reduction of sale price by Rs.65,000‑‑‑High Court directed the pre‑emptor to pay court‑fee on Rs.65,000 by certain date, failing which appeal would stand dismissed‑‑­High Court for non‑compliance of such order by pre‑emptor dismissed the appeal ‑‑‑Pre‑emptor sought review of such dismissal order on the ground that court‑fee had to be paid in accordance with value determined under S.7(v) of Court Fees Act, 1870‑‑‑Validity‑‑‑Where decree for possession by pre‑emption itself was challenged or was claimed, then suit or appeal had to be valued in terms of S.7(v) of Court Fees Act, 1870‑‑‑Pre‑emptor, in the present case, was not claiming a decree for possession, but such decree had already been granted to him by the Appellate Court‑‑‑Claim of pre‑emptor was for reduction of sale price by Rs.65,000‑‑‑Such relief did not fall within S.7(v) of Court Fees Act, 1870‑‑‑Pre‑emptor seeking reduction of decretal amount by a certain sum was liable to pay on such sum ad valorem court‑fee under Art. 1 of First Schedule to Court Fees Act, 1870‑‑‑No case for review of impugned judgment was made out‑‑‑High Court dismissed review application in limine.

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

(b) Court Fees Act (VII of 1870)‑‑‑

‑‑‑‑First Sched., Art. 1‑‑‑Ad valorem court ‑fee payable on appeal‑‑­Determination of‑‑‑Claim in appeal was for reduction of decretal amount by a certain sum‑‑‑Such sum would represent value of subject‑matter of appeal‑ ‑‑Appellant must pay ad valorem court‑fee specified in Art. 1 of First Schedule to Court Fees Act, 1870 on the value of subject‑matter of appeal.

Haji Ghulam Qadir v. Abdul Qadir PLD 1952 BJ 62 ref.

Muhammad Ramzan for Applicant.

Nemo for Respondent.

Date of hearing: 3rd April, 2002.

2003 M L D 140

[Lahore]

Before Muhammad Sair Ali, J

WALID‑BIN‑NAWAZ and others‑‑‑Appellants

Versus

Malik MUHAMMAD AKRAM and others‑‑‑Respondents

Regular Second Appeal Nos.44 and 45 of 1996, heard on 14th February, 2002.

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

‑‑‑‑Ss. 8 & 39‑‑‑Registration Act (XVI of 1908), S.17‑‑‑Stamp Act (II of 1899), S.35 & Sched. Item No.45‑‑‑Suit for possession and cancellation of document‑‑‑Plaintiff claimed to be the owner of certain plots on the basis of partition document of 1965 and mutation entered in 1972 incorporating division of land into numerous plots between plaintiff and other co‑sharers‑‑‑Trial Court decreed suit, which was upheld by Appellate Court‑‑‑Contention of defendants was that partition document being on deficient stamp paper of Rs.2 and unregistered could not have been admitted in evidence and could not have become the basis of transfer of rights and interests to plaintiff‑Validity‑‑‑None of the parties had denied that partition document/family settlement and such mutation had been acted upon, implemented and completed as, back as in 1965, though mutation had been entered in 1972‑‑None of beneficiaries of such partition/family settlement had ever disputed partition document as inadmissible or invalid‑‑‑Land purchased by defendants was in the shape of plots (though described . in sale‑deed as part of bigger Khasra No.1, which were under a scheme floated and incorporated even before partition of the property between original co‑owners‑‑­Defendants having taken land in shape of plots (though without mentioning plots Nos. in sale‑deed) could not be allowed to turn around and challenge entire scheme or partition documents/family settlement on the basis of which respective rights of co‑owners had been defined and they had been put in possession‑‑‑Defendants had not disputed the fact that they had been transferred land falling in share of late defendant (co‑owner/vendee) long time after partition/family settlement and induction of late defendant and others into their respective parcel of land through effective implementation of partition document and mutation‑‑‑Document of partition in ‑ fact and in essence had implemented pre‑agreed scheme and division of property between parties‑‑‑Such kind of document was not compulsorily registrable and did not bear deficient stamp duty‑‑‑High Court dismissed appeal in circumstances.

(b) Registration Act (XVI of 1908)‑‑‑

‑‑‑‑S.17‑‑‑Stamp Act (II of 1899), S.35 & Sched., Item No. 45‑‑‑Un‑registered document of family settlement being on stamp paper of Rs.2‑‑‑Validity‑‑‑Such document in fact and in essence implemented pre‑agreed scheme and division of property between the parties‑‑‑Such kind of document was not compulsorily registrable and did ,not bear deficient stamp duty.

Kh. Muhammad Akram for Appellant.

A.D. Naseem for Respondents Nos. 1 and 2.

Sardar Muhammad Farooq for Respondent No.3.

Date of hearing: 14th February, 2002.

2003 M L D 147

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD YAQUB and 2 others‑‑‑Petitioners

Versus

KHUSHI MUHAMMAD‑‑‑Respondent

Civil Revisions Nos.812 and 1682 of 1999, heard on 19th April, 2002.

(a) Administration of justice‑‑‑

‑‑‑‑ Pointing out defect in proceedings is primarily the duty of parties‑‑‑Ultimate duty of the Court is to see that no defect has occurred in proceedings, which may ultimately affect merits of the case.

Mst. Sughran Bibi v. Mst. Jameela Begum and others 2001 SCMR 772 ref.

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

‑‑‑‑Ss.8 & 12‑‑‑Civil Procedure Code (V of 1908), O.XVI, R. 1 & O.XLI, Rr.22, 25‑‑‑Suit for specific performance of agreement to sell by earlier purchaser against vendor and subsequent purchasers‑‑‑Suit for recovery of possession of disputed property by subsequent purchasers against earlier purchaser‑‑‑Trial Court consolidated both the suits and dismissed the same on 27‑5‑1992‑‑‑Earlier purchaser filed appeal against judgment and decree dated 27‑5‑1992, whereas subsequent purchasers and vendor filed cross‑objections‑‑‑Appellate Court accepted appeal and remanded case to Trial Court for a fresh decision "on whole of the issues", but dismissed cross‑objections with observations that a separate appeal ought to have been filed‑‑‑Trial Court after remand decreed the suit while observing that issues relating to suit for possession filed by subsequent purchasers had become redundant after dismissal of their cross‑objections, thus, dismissal of their suit had got finality ‑‑‑Validity‑‑­Judgment and decree, dated 27‑5‑1992 were neither here nor there as entire judgment had been set aside by Appellate Court with direction to Trial Court to decide all the issues afresh‑‑‑None of the parties had challenged remand order‑‑‑Trial Court had proceeded in the matter with a pre‑determined mind treating the suit for possession filed by subsequent, purchasers as having been dismissed, which dismissal after having been affirmed in appeal had attained finality‑‑‑Such act had certainly caused prejudice to subsequent purchasers‑‑‑Impugned judgment and decree were the result of material irregularity on the part of Trial Court of having misdirected entire proceedings‑‑‑High Court set aside judgments and decrees of Courts below, resultantly both the suits filed by parties against each other would be deemed to be pending before Trial Court, which would decide same afresh.

Ch. Rafique Warraich for Petitioners.

Muhammad Hassan Ch. for Respondent.

Date of hearing: 19th April, 2002.

2003 M L D 157

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD AFZAL‑‑‑Petitioner

Versus

SENIOR MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and 6

others‑‑‑Respondents

Writ Petition No.9099 and 10044 of 2001, heard on 24th April, 2002.

(a) West Pakistan Land Revenue Rules, 1968‑‑‑

‑‑‑‑Rr. 17 & 19(2)‑‑‑Appointment of Lambardar‑Succession ‑‑‑ Rule of primogeniture was not based on the principle of right of inheritance‑‑­Succession in appointment of Lambardar could not be claimed as in an inherited property.

(b) Word and phrases‑‑‑

‑‑‑‑"Primogeniture"‑‑‑Meaning.

Encyclopeadia Britannica, 11th Edn.; Biographical Dictionary and 49 Corpus Juris rel.

(c) West Pakistan Land Revenue Rules, 1968‑‑‑

‑‑‑Rr.17 & 19(2)‑‑‑Appointment of Lambardar‑‑‑Choice of successor Lambardar‑‑‑Contest between sons of deceased Lambardar‑‑‑Son of deceased Lambardar, whether minor or major for purposes of R. 19(2) of West Pakistan Land Revenue Rules, 1968, could have claimed appointment of Lambardar, but such rule was against Injunctions of Islam (PLD 1999 SC 484)‑‑‑Concerned Authorities were the best Judges under law to consider suitability of candidates for appointment of Lambardar‑‑‑Commissioner in such case being the Competent Authority on Revenue side had considered case of younger son of deceased Lambardar (respondent) vis‑a‑vis his elder son (petitioner) and other contesting candidates‑‑‑Respondent having better qualification being Matric and of 40 years of age had been found a suitable candidate to be appointed as Lambardar‑‑‑Final order of Board of Revenue was also in favour of the respondent‑‑‑High Court declined to interfere in exercise of its Constitutional jurisdiction with well‑reasoned and well‑considered order passed by Commissioner and Board of Revenue and dismissed Constitutional petition in circumstances.

Shaukat Ali and another v. Muhammad Shafi and 2 others 1991 SCMR 1504; Ghulam Hussain v. Ghulam Muhammad and another 1976 SCMR 75 and Maqbool Ahmad Qureshi v. The Islamic Republic of Pakistan PLD 1999 SC 484 ref.

(d) West Pakistan Land Revenue Rules, 1968‑‑‑

‑‑‑‑R.17‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suitability or non‑suitability of a candidate to be appointed as Lambardar‑‑‑Findings of Appellate and Revisional Authorities in that regard‑‑‑Not questionable before High Court in exercise of Constitutional jurisdiction under Art. 199 of the Constitution.

Ghulam Hussain v. Ghulam Muhammad and another 1976 SCMR 75 and Abdul Ghafoor v. The Member (Revenue). Board of Revenue and another 1982 SCMR 202 ref.

Bashir Ahmad Chaudhry for Petitioner.

Ch. Hassan Ali Khan and Ch. Imitaz Elahi,. A.A.‑G. for Respondents.

Date of hearing: 24th April, 2002.

2003 M L D 168

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD YOUNAS ‑‑‑ Petitioner

Versus

SURYA BIBI and another‑‑‑Respondents

Civil Revision No.2296 of 2001, decided on 6th February, 2002.

West Pakistan Civil Courts Ordinance (II of 1962)‑‑‑

‑‑‑‑S‑18‑‑‑Forum of appeal‑‑‑Determination‑‑‑Return of appeal by Additional District Judge for not having pecuniary jurisdiction in view of plaintiff's admission while appearing as witness that market value of suit land was Rs.4 lacs‑‑‑Validity‑‑‑Forum of appeal was to be determined according to value of suit as mentioned in the plaint‑‑‑Value of suit for purposes of jurisdiction and court‑fee in plaint had been fixed at Rs.200‑‑‑High Court accepted revision petition and set aside impugned order, resultantly appeal would be deemed to be pending before Additional District Judge for its decision on merits.

Muhammad Ayub and 4 others v. Dr. Obaid Ullah and 6 others 1999 SCMR 394 fol.

A.D. Naseem for Petitioner.

Ch. Sadaqaat Ali for Respondent.

2003 M L D 169

[Lahore]

Before Syed Zahid Hussain, J

GOVERNMENT OF PUNJAB and 2 others ‑‑‑ Petitioners

Versus

GHULAM SHABBIR‑‑‑Respondent

Civil Revision No.217 of 2002, decided on 3rd April, 2002.

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Ss. 5 & 29(2)‑‑‑Civil Procedure Code (V of 1908), S.115, proviso‑‑­Revision‑‑‑Limitation‑‑‑Condonation of delay‑‑‑Provisions of S.5 of Limitation Act, 1908‑‑‑Applicability‑‑‑Impugned judgment was passed on 16‑6‑2001, copy whereof was applied on 22‑1‑2002 and was received on 26‑1‑2002‑‑‑Revision petition was filed on 4‑2‑2002‑‑‑Vailidity‑‑­Limitation for filing revision petition as prescribed by proviso to--‑S.115, C.P.C. was 90 days ‑‑‑Copy of impugned judgment and decree head been applied for much after expiry of 90 days‑‑‑Since S.115, C.P.C. prescribed its own period of limitation, benefit of S.5 of Limitation Act, 1908 could not be availed, unless same had been made applicable as per S.29(2) of Limitation Act, 1908‑‑‑Application under S.5 of Limitation Act, 1908 for condonation of delay was of no avail to the petitioner in circumstances.

Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 fol.

(b) Administration of justice‑‑‑

‑‑‑‑ Court is obliged to decide and dispose of matter in accordance with law irrespective of the standings and status of parties before it‑‑‑Equality of all before Courts of law in litigation is the hallmark of administration and dispensation of justice, which cannot be sacrificed at any cost.

(c) Limitation Act (IX of 1908)‑‑‑

‑‑‑S.5‑‑‑Condonation of delay‑‑‑Showing of good reasons essential‑‑­Government was not entitled to any preferential treatment in matter of condonation of delay, reason being that with expiry of limitation, valuable rights accrued to and vested in other side‑‑‑Such party could not be denuded of the same, unless delay was condoned for good reasons‑‑­Duty of Government and its concerned official to take proper steps for defending and prosecuting causes before Courts with due care and diligence.

(d) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.5‑‑‑Condonation of delay‑‑‑Laxity and lack of proper prosecution by a party could not be condoned by Court.

Riaz Ahmed Lone for Petitioners.

2003 M L D 174

[Lahore]

Before Ch. Ijaz Ahmad and Sakhi Hussain Bukhari, JJ

GHULAM MUSTAFA and another‑‑‑Appellants

Versus

MUHAMMAD KHALID CHAUDHRY‑‑‑Respondent

Regular First Appeal No. 155 of 1998, heard on 21st March, 2002.

(a) Contract Act (IX of 1872)‑‑‑

‑‑‑S.55‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Agreement to sell immovable property‑‑‑Time specified‑ in agreement, whether essence of contract‑‑‑Burden of proof‑‑‑Time was not the essence of the contract qua agreement with regard to immovable property, unless and until same as proved with cogent evidence by party claiming that time was of the essence of contract.

(b) Contract Act (IX of 1872)‑‑‑

--‑S.55‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Agreement to sell removable property‑‑‑Time specified in agreement, whether of the essence of contract,‑‑Factors to be considered to determine the question.

The question, whether time is of the essence of contract depends upon the intentions of parties, the surrounding circumstances and the nature of property. The mere fact that certain time is specified for the payment of amount in consideration of which the property is transferred, will not show that time is of the essence of contract. So far as the contracts relating to land are concerned, it is well‑settled that time fixed for completion of transaction is not considered to be of the essence of contract. The presumption in such contracts, though specified time is mentioned within which completion is to take place, is that parties really and in substance only intended that it should take place within a reasonable time. This presumption, however, is rebuttable.

Malik Ghulam Jilani v. Malik Munir Ahmad Khan and others 'LD 1960 (W.P.) Kar. 517 fol.

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

‑‑S.12‑‑‑Contract Act (IX of 1872), S.55‑‑‑Suit for specific performance of agreement to sell‑‑‑Trial Court decreed the suit‑‑C­ontention of defendants was that suit was time‑barred as time was of the essence of contract‑‑‑Validity‑‑‑Defendants had not denied agreement sell in written statement as well as in their evidence‑‑‑Defendants after target date specified in .agreement had received part of earnest money‑‑‑Such fact brought the case in area that time was not of the essence of contract as parties had not stuck to target date specified in agreement of execution of sale‑deed‑‑‑Defendants had tiled to bring on record sufficient material to show that time as of the essence of contract‑‑‑High Court dismissed appeal in circumstances.

Malik Ghulam Jilani v. Malik Munir Ahmad Khan and others .D 1960 (W. P.) Kar. 517 fol.

Safdar Hayat Bhatti for Appellants.

Mian Javid Rasheed for Respondent.

Date of hearing: 21st March, 2002.

2003 M L D 185

[Lahore]

Before Abdul Shakoor Paracha, J

Mst. BALQEES BEGUM and another‑‑‑Petitioners

Versus

Mst. KHAN BIBI and 6 others‑‑‑Respondents

Civil Revision No. 2973‑D of 1996, heard on 18th February, 2002.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 2(4)(5)‑‑‑Fact to be proved or disproved in civil and criminal cases‑‑‑Determination of‑‑ ‑Preponderance of evidence goes to prove or disprove a point in issue‑ ‑‑Preponderance of evidence in civil cases is not Judged on touchstone of proof in a criminal matter, where charge is required to be proved up to hilt on the‑ basis of unimpeachable evidence.

Muhammad Ilyas v. Ghulam Muhammad and others 1999 SCMR 958 rel.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

--‑Arts. 133 & 129‑‑‑Party not entering witness‑box in support of pleading‑‑‑Effect‑‑‑Ordinarily party to suit must enter witness‑box in order to make statement in support of its pleadings and depose to facts exclusively within his knowledge‑‑‑Where there was sufficient material on record to prove fact in issue, then mere failure of party to enter witness‑box to prove same fact would not be fatal to his case.

Anjuman‑e‑Islamia, Sialkot v. Haji Muhammad Younas and 3 others PLD 1997 Lah. 153 ref.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 133 & 129‑‑‑Failure of party to undergo test of cross­examination‑‑‑Effect‑‑‑Contesting parties must undergo test of cross­examination for ascertaining truth or otherwise of their claims, failing which adverse presumption could be drawn against them under Art. 129 of Qanun‑e‑Shahadat. 1984.

Anjuman‑e‑Islamia, Sialkot v: Haji Muhammad Younas and 3 others PLD 1997 Lah. 153 rel.

(d) Islamic Law‑‑‑

‑‑Gift‑‑‑Will‑‑‑Marz‑ul‑Maut, doctrine of‑‑‑Applicability‑‑‑Mere old age and illness would not be sufficient to sustain inference of donor having been under pressure of sense of imminent death.

Mst. Chanan Bibi v. Muhammad Shafi and 3 others PLD 1977 SC 28 fol.

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

‑‑‑S. 115‑‑‑Revisional jurisdiction of High Court‑‑‑Scope‑‑‑Concurrent findings of fact‑‑‑High Court could set aside such findings, if same were based on non‑reading or misreading of evidence.

Mst. Anwar Bibi v. Abdul Hameed 2002 SCMR 144 fol.

(f) Islamic Law‑‑‑

‑‑‑‑ Will‑‑‑Proof‑‑‑"Marz‑ul‑Maut", doctrine of‑‑‑Applicability‑‑‑Will in favour of plaintiffs executed by testator one month before his‑ death due to illness‑‑‑Defendants claimed that such Will was executed by testator during " Marz‑ul‑Maut"‑‑‑ Trial Court and Appellate Court dismissed the suit‑‑‑Validity‑‑‑Plaintiff had proved execution of Will by producing scribe and marginal witnesses as required under Art.79 of Qanun‑e­Shahadat, 1984‑‑‑Marginal witnesses had appeared before Court after long time of execution of Will‑‑‑Minor discrepancies in statements of such witnesses being natural phenomena were not sufficient to conclude that there was no execution of Will specially, when one of the defendants had admitted thumb‑impression of testator on the Will itself‑‑‑Mere non­appearance of plaintiffs being Pardanashin ladies as witnesses was no ground to conclude that testator had not executed Will‑‑‑No oral and medical evidence was available on record to show that testator was suffering from a particular disease, which had caused a sense of imminent death and eventually resulted in his death‑‑­Trial Court in view of old age of testator took for granted that he was under apprehension of death‑‑‑Mere fact that testator had died twenty days after making Will was not enough to find that Will had not been executed‑‑ ‑Defendants had failed to prove that testator had made the Will during "Marz‑ul‑Maut"‑‑‑ Execution of Will stood proved‑‑‑Findings of Courts below was the result of non­-reading and misreading of such evidence on record‑‑‑High Court set aside impugned judgments and decrees and decreed the suit filed by plaintiffs.

Noor Muhammad Khan and 3 others v. Habib Khan and 27 others PLD 1994 SC 650; Mst. Chanatt Bibi v. Muhammad Shafi and 3 others PLD 1977 SC 28; Bakht Zamin v. Said Majeed 1986 CLC 1805; Muhammadan Law by F.D. Mulla, para. 135 and Mst. Anwar Bibi v. Abdul Hameed 2002 SCMR 144 rel.

Rizwan Mushtaq for Petitioners.

Ch. Saeed Sabir for Respondents.

Date of hearing: 18th February, 2002.

2003 M L D 197

[Lahore]

Before Syed Zahid Hussain, J

BASHIR AHMAD and 2 others‑‑‑Petitioners

Versus

ADDITOINAL COMMISSIONER (REVENUE)/NOTIFIED OFFICER, GUJRANWALA DIVISION, GUJRANWALA and 12 others‑‑‑Respondents

Writ Petition No. 171‑R of 1995, heard on 12th April, 2002.

(a) Natural justice, principles of‑‑‑

‑‑Concept‑‑‑Party should have opportunity of representation, defence and hearing in proceedings before Tribunal which has to decide the case on the basis of material on record and extraneous material cannot be taken into consideration‑‑‑Concept ‑of principle of natural justice also envisages that material going to be relied upon as evidence against a person must be confronted to him for his comments and rebuttal.

Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531 rel.

(b) Administration of justice‑‑‑-

‑‑Judicial ‑Judicial dispensation concerning rights of parties should be transparent and open, made after affording full right of representation to parties to support their respective claims/pleas.

(c) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975).‑‑‑--

‑‑‑‑S.2‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Entitlement of parties, determination of‑‑‑Proceedings taken by Notified Officer in pursuance of remand order passed by High Court‑‑­Validity‑‑‑Notified Officer had summoned record from Central Record Room, but same could not be received in spite of adjourning proceedings for several times‑‑‑Proceedings were fixed for 13‑6‑1995, when Notified Officer through short order allowed Mukhbari application noting that detailed order was being written separately‑‑‑Order sheet of such date did not disclose, whether record and verification had been received or not ‑‑‑Patwari had been summoned to produce record on19‑6‑1995, but on his failure to do so, same had been again summoned for 21‑6‑1995‑‑­All such facts showed that on the date i.e. 13‑6‑1995 on which Notified Officer had proceeded to decide matter, record was not available before him and in any case, he had made use of record procured after conclusion of proceedings and announcement of order‑‑‑Notified Officer had acted illegally as parties had no opportunity of examining record and plead their case accordingly‑‑‑Constitutional petition was filed on 13‑7‑1995 challenging short order dated 13‑6‑1999 as detailed order was not available‑‑‑Detailed order was brought on record through application later on‑‑‑Noting of copying Agency on detailed order showed that petitioner had applied on 13‑6‑1995 for copy of order, but same was supplied on 20‑7‑1995‑‑‑Such fact prima facie supported assertion of petitioners that for a long time, detailed order had not been written apparently for the reason that record was being awaited by Notified Officer‑‑‑Such disposition of matter was not in accord with judicial norms and in compliance with remand order‑‑‑High Court declared order dated. 13‑6‑1995 as unlawful and of no legal effect and remanded matter to Member, Board of Revenue/Chief Settlement Commissioner for its entrustment to Notified Officer to decide same afresh.

A.R. Shaukat for Petitioners.

M. Z. Khalil for Respondent No. 1.

Zafar Ullah Cheema for Respondent No.2.

Sardar Tariq Mahmood for Respondents Nos.6 and 7.

Respondent No.8: Ex parte.

Tanveer Ahmad for Respondents Nos.9 to 13.

Date of hearing: 12th April, 2002.

2003 M L D 201

[Lahore]

Before Abdul Shakoor Paracha, J

ABDUL HAMEED‑‑‑ Petitioner

Versus

MUHAMMAD HANIF and 12 others‑‑‑Respondents

Civil Revision No.997 of 1999, heard on 18th March, 2002.

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

‑‑‑‑O.XXXIX, Rr.1 & 2‑‑‑Temporary injunction, grant or refusal of‑‑­Factors to be considered by Court.

1976 SCMR 291 and Marghub Siddiqi v. Hamid Ahmad Khan and‑2 others 1974 SCMR 519 ref.

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

‑‑‑S.56‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2‑‑­injunction, grant of‑‑‑Except for purpose of preventing multiplicity of proceedings, Civil Court could not issue injunction to stay judicial proceedings or proceedings in superior Courts.

PLD 1972 SC 34 and PLD 1976 Lah. 871 rel.

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

‑‑O.XXXIX, Rr.1, 2 & S.151-----‑Temporary injunction‑‑‑Suit for partition‑‑‑Disputed property also included a shop in possession of tenant under defendants‑‑‑Plaintiff claimed ownership on the basis of sale‑deed dated 23‑3‑1939 executed by previous owner N‑‑‑Defendant (successor-­in‑interest of S) claimed to be owner of shop on the basis of sale‑deed registered on 22‑4‑1941 executed by daughter of previous owner N, who had acquired title from her father N. through Tamleeq Nama dated 18‑2‑1939‑‑‑Trial Court and Appellate Court refused prayer for temporary injunction‑‑‑Validity‑‑‑Plaintiff had; filed suit for partition without challenging Tamleeq Nama dated 18‑2x1939 allegedly executed by previous owner N in favour of his daughter, who had further sold shop to S (predecessor‑in‑interest of defendants) ‑‑‑Tamleeq Nama dated 18‑2‑1939 was earlier in time, whereas sale‑deed in favour of plaintiff was dated ‑ 23‑3‑1939‑‑‑Shop in dispute had been sold vide sale‑deed dated 22‑4‑1941, which was prima facie proof of ownership in favour of predecessor‑in‑interest of defendants‑‑‑Ejectment order obtained by defendants against tenant had been upheld by High Court‑‑‑Acceptance of application for temporary injunction would result in staying delivery of possession of shop to defendants‑‑‑Plaintiff had neither prima facie any right nor he had pointed out any irreparable damage or injury likely to cause to him nor there was inconvenience, which he would undergo from withholding injunction‑‑‑All such ingredients did not exist in favour of plaintiff‑‑‑Trial Court and Appellate Court had not committed any illegality or material irregularity in dismissing such application‑‑‑High Court dismissed the revision petition in circumstances.

1976 SCMR 291 ref:

Malik Saeed Hassan for Petitioner.

Ahmad Waheed Khan for Respondents.

Date of hearing: 18th March, 2002.

2003 M L D 210

[Lahore]

Before Maulvi Anwarul Haq and Pervez Ahmad, JJ

ALI AHMAD‑‑‑Appellant

Versus

MUSNHI and another‑--Respondents

Regular First Appeal No.246 of 1994, heard on 28th March, 2002.

Specific Relief Act (I of 1877)‑‑‑‑

‑‑‑‑S.12‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 163‑‑‑Oaths Act (X of 1873), Ss. 8, 9, 10 & 11‑‑‑Suit for specific performance of agreement to sell‑‑‑Plaintiff's plea was that defendant's attorney had entered into agreement with him and had received earnest money‑‑‑Defendants denied such claim‑‑‑Plaintiff on 22‑9‑1994 made application under Art.163 of Qanun‑e‑Shahadat, 1984 for recording his, statement on oath only. Holy Qur'an in support of suit‑‑‑Plaintiff's counsel then made statement to the effect that if defendants negated plaint on oath on Holy Qur'an, then suit be dismissed‑‑‑Case was then adjourned to 28‑9‑1994 for personal appearance of defendants, but they did not appear and their counsel was delivered copy of application‑‑‑Defendants filed application on 3‑10‑1994 stating that they did not want to take oath and prayed for decision of case on merits‑‑‑Defendants later on in joint statement recorded on Holy Qur'an denied to have entered into agreement with appellant‑‑‑Trial Court then dismissed suit‑‑‑Validity‑‑‑Statement of plaintiff's counsel gave an impression that same was a case of special oath in terms of Oaths Act, 1873‑‑‑Matter of special oath contained in statement of plaintiff's counsel, apart from being inconsistent with application filed by plaintiff, came ‑to an end on 22‑9‑1994 and for such reason on 28‑9‑1994, copy of application was delivered to defendants‑‑‑Plaintiff on 5‑10‑1994 had‑ stated his case on oath that defendant (attorney) alongwith defendant (principal vendor) had received earnest money from him‑‑­Such statement had to be put to defendants and they had to be ‑called upon to deny same on oath on Holy Qur'an which had not been done‑‑­Trial Court had not made any effort to consider as to how suit was to be decided and that which was the law according to which, same was to be decided‑‑‑Law applicable being Art.163 of,! Qanune‑e‑Shahadat, 1984 such was a case of general oath for all purposes and not of special oath, as both parties had taken oath‑‑‑Trial Court was bound to call upon plaintiff to state as to whether he had some other evidence to offer in support of his case and in case of his denial, the suit could have been dismissed treating same to be a case of oath against oath‑‑‑Plaintiff had not been given chance to prove his case by producing evidence. had resulted in failure of justice‑‑‑High Court accepted appeal, set aside impugned judgment and decree, resultantly suit would be deemed to be pending before Trial Court to be. decided after framing issues and recording evidence of parties.

Khan Sher v. Mst. Kabla and another PLD 1988 Pesh. 65; Bhore Khan v. Noor Din PLD 1993 Pesh. 72 and Muhammad Yousaf v. Bulanda through Legal Heirs 1999 SCMR 2115 ref.

Taki Ahmad Khan for Appellant.

Muhammad Yaqoob Sindhu for Respondents.

Date of hearing: 28th March, 2002.

2003 M L D 215

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD AKRAM KHAN‑‑‑Petitioner

Versus

Malik MUHAMMAD YOUSUF‑‑‑Respondent

Civil Revisions Nos. 143 to147 of 1996, heard on 8th April, 2002.

(a) Punjab Pre‑emption Act (IX of 1991)‑‑‑-

‑‑‑‑Ss.30 & 31‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑‑Suit for pre‑emption ‑‑‑Sale through registered sale‑deed‑‑‑Suit was filed after prescribed period of limitation‑‑‑Plaintiff's plea was that he could not acquire knowledge of sale because of failure of Registrar to affix notice at public place in accordance with provisions of S.31 of Punjab Pre­emption Act, 1991‑‑‑Trial Court rejected plaint being barred by law‑‑­Validity‑‑‑Time prescribed for filing suit under the Act was four months and date of its commencement ‑ in the present case was the date of registration of sale‑deed‑-‑Provisions of S.31 of the Punjab Pre‑emption Act, 1991 appeared to be couched in a mandatory term as‑.word "shall" had been used‑Neither S.31 of the Act nor any other provision of the Act provided any consequences for non‑compliance of such provisions‑‑­No concealment or even attempt of ‑ concealment could be made by vendor and vendee in the present case as proceedings were conducted by public functionary at a public place and copies of sale‑deed could be obtained by any member of public on paying usual charges‑‑‑Section 31 of the Punjab Pre‑emption Act, 1991 had no nexus with S.30 thereof‑‑­Provisions of S.31 of the Act or non‑compliance thereof by Registrar could not be pressed into service as a ground for extension of limitation prescribed by S.30 of the Act.

(b) Punjab Pre‑emption Act (IX of 1991)‑‑‑-

‑‑‑‑Ss. 31, 30, 6 & 13‑‑‑Provisions of S.31 of the Punjab Pre‑emption Act, 1991‑‑‑Applicability‑‑‑Section 31 of the Act has no nexus with S.30 thereof‑‑‑Principles.

Section 31 of the Punjab Pre‑emption Act, 1991 has no nexus with section 30 thereof. If at all when read in the light of section 13 (read with section 6) of the Act, provision of section 31 may be pressed by a vendee‑defendant to post pre‑emptor with a positive knowledge of sale with reference to performance of Talb‑e‑Muwathibat as prescribed in section 13 of the Act. Charges for the notice are payable by vendee and recoverable from him. Thus vendee, in case Talb‑e‑Muwathibat has been made at a point of time after two weeks of registration of sale‑deed, can show either by proof or with reference to statutory presumption attached to performance of public functions that a notice was given in terms of section 31 and that pre‑emptor will be deemed to be posted with knowledge of sale with reference to the point of time mentioned in section 31 of the Act.

Hassan Ahmad Khan Kanwar for Petitioner.

Nemo for Respondent.

Date of hearing: 8th April, 2002.

2003 M L D 218

[Lahore]

Before Nasira Iqbal, J

JAFFAR ALI ‑‑‑Petitioner

versus

DEPUTY COMMISSIONER and others‑‑‑Respondents

Writ Petition No. 14317 of 2000, decided on 10th September, 2001.

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

‑‑‑‑S.5 & Sched.‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Recovery of maintenance amount‑‑‑Dissolution of marriage on ground of Khula'‑‑‑Chairman, Arbitration Council on application of plaintiff (wife) granted her amount of maintenance payable to her by defendant husband and order of Chairman was upheld even by High Court‑‑‑During pendency of application of wife for recovery of maintenance amount, she filed suit for dissolution of marriage which was decreed in her favour on basis of Khula' subject to payment of “Zare Khula” by her to defendant and that decree attained finality after expiry of ninety days of Iddat'‑‑‑Marriage having been dissolved at instance of plaintiff herself and decree having been obtained by her, it was immaterial whether notice of the same was sent to the Arbitration Council or certificate was issued by Arbitration Council or not‑‑‑Plaintiff could not assert that fact of dissolution of marriage on ground of Khula' was not within her; knowledge which was primary purpose of issu4nce of certificate by Arbitration Council‑‑‑,Once she had obtained decree she could not claim maintenance beyondIddat' period since she could not approbate and reprobate in that regard.

Khadim v..Judge, Family Court, Samundri, District Faisalabad and another 1991 MLD.1250 and Abdul Sattar v. Mst. Zahida Parveen and 10 others 1991 MLD 403 ref.

Mian Rauf Ahmad for Petitioner.

Irfan Gul Rajuwala for Respondents.

Date of hearing: 10th September, 2001.

2003 M L D 230

[Lahore]

Before Tassaduq Hussain Jilani and Abdul Shakoor Paracha, JJ.

ASIF KHAN‑‑‑Appellant

versus

RETURNING OFFICER ‑‑‑Respondent

Election Appeal No. 19‑R of 2002, decided on 4th September, 2002.

Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑‑Ss.12, 13 & 14‑‑‑Rejection of Nomination Papers‑‑‑Nomination papers of candidate were rejected on the ground that his proposer did not belong, to the constituency from which candidate was contesting election and had filed nomination papers‑‑‑Validity‑‑‑Provisions of S.12(1) of Representation of the People Act, 1976 had mandated that any elector of a constituency could propose or second the name of any duly qualified person to be a Member for that constituency‑‑‑Mandatory provision of law having not been complied with, nomination papers of candidate were rightly rejected.

Pervaiz Inayat Malik for Appellant.

Date of hearing : 4th September, 2002.

2003 M L D 231

[Lahore]

Before Mian Hamid Farooq, J

MUHAMMAIYAKRAM and another‑‑‑Appellants

versus

Mst. ZAIB‑UN‑NISA and 6 others‑‑‑Respondents

First Appeal from Order No.263 of 2001, decided on 18th July, 2002.

Civil Procedure Code (V of 1908)‑‑

‑‑O.XXII, R.10‑‑‑Specific Relief Act (I of 1877), S‑42‑‑‑Suit for declaration‑‑‑Alienation of suit property‑-‑Application for substitution‑‑‑ Defendant against whom suit for declaration was filed by plaintiffs having died during pendency of suit, his legal heirs were impleaded in the suit‑‑‑Applicants who claimed to be purchasers of suit property from deceased defendant filed application before Trial Court under O. XXII, R.10, C.P.C. contending that since rights in the suit property had been transferred to them by defendant during pendency of suit, they could be substituted in place of legal heirs of deceased defendant‑‑‑Under provisions of O. XXII, R.10, C.P.C. in case of assignment, creation or devolution of any interest during pendency of suit, Court could grant leave to assignee to continue with the proceedings‑‑‑If the applicants had purchased suit property, sufficient reasons existed to believe that rights in suit property had been assigned in favour of applicants‑‑‑Application filed under O. XXII, R.10, C.P.C. was accepted and applicants were allowed to be impleaded as party in suit and they were permitted to continue with the suit.

Mst. Suraya Begum and others v. Mst. Subhan Begum and another 1992 SCMR 652 ref.

Allah Bakhsh Gondal for Appellants.

Abdul Waheed for Respondents.

Date of hearing: 18th July, 2002.

2003 M L D 234

[Lahore]

Before Jawwad S. Khawaja and Abdul Shakoor Paracha, JJ

MUHAMMAD SHARIF-‑‑Appellant

versus

SARFRAZ ALI and 2 others‑‑‑Respondents

Regular First Appeal No.517 of 2001, heard on 18th February, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XVII, R.3‑‑‑Closing of evidence of plaintiff‑‑‑On date fixed for recording evidence of plaintiff evidence of plaintiff being not present, case was adjourned on request of counsel of plaintiff for his evidence‑‑­On adjourned date of hearing only counsel for parties were present‑‑­Contention of counsel of plaintiff that plaintiff along with witnesses were present on adjourned date of hearing when evidence of plaintiff was closed, was not borne out from the record‑‑‑Case having been adjourned on the request of plaintiff, provisions of O. XVII, R.3, C.P.C. were attracted in the case‑Trial Court, in circumstances, had rightly closed evidence of plaintiff and had rightly dismissed his suit.

Rana Muhammad.,Anwar for Appellant.

Malik Abdul Wahid for Respondents.

Date of hearing: 18th February, 2002.

2003 M L D 236

[Lahore]

Before Syed Jamshed Ali, J

MASJID MAKTAB ANWAR‑E‑MADINA, FAISALABAD through President‑‑‑Petitioner

versus

TOOR KHAN and another‑‑‑Respondents

Civil Revision. No. 1458 of 1990, heard on 21st May, 2002.

Specific Relief Act (1 of 1877)‑‑‑

‑‑‑‑S.42‑‑‑Suit for declaration‑‑‑Plaintiff had claimed that he was owner in possession of suit land by virtue of Notification/Policy Letter of Government of Punjab dated 22‑2‑1979 and he was entitled to grant of proprietary rights, but instead he was being threatened with dis­possession ‑‑‑Plaintiff by virtue of said Notification/Policy Letter could at best claim to be entitled to the grant of proprietary rights, but same would not ipso facto make plaintiff a resident of Katchi Abadi as owner of land in his possession‑‑‑Said Policy Letter contained instructions, but could not confer any right on plaintiff for which declaration could be granted to him under S.42 of Specific Relief Act, 1877‑‑‑Trial Court decreed the suit only to the extent that defendants were restrained from dispossessing plaintiff illegally and without due course of law whereas Appellate Court completely decreed suit holding that plaintiff being resident of Katchi Abadi was entitled to proprietary rights according to Policy Letter‑‑‑Appellate Court was not justified to decree the suit‑‑‑Judgment and decree passed by Appellate Court below were set aside and judgment and decree of Trial Court stood restored.

Hafiz Muhammad Yousaf for Petitioner.

Nayyar Iqbal Ghauri for Respondent No. 1.

Ali Akbar Qureshi for Respondent No.2.

Date of hearing: 21st May, 2002.

2003 M L D 246

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD RIAZ and 4 others‑‑‑Appellants, versus.

FATEH MUHAMMAD through his Legal Heirs‑‑‑Respondent

Regular Second Appeal No.32 of 1995, heard on 12th April, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.12‑‑‑Suit for specific performance of agreement of sale‑‑‑Defendant could not deny execution of agreement of sale, but had alleged that agreement was a result of undue influence, coercion and was not with free consent of defendant who was an old man of feeble health‑‑­Testimony of Sub‑Registrar had shown that parties were present for completion of transaction and that defendant was accompanied by his wife and daughter‑‑‑Execution of agreement of sale, in circumstances, had fully been proved‑‑‑Trial Court on perusal of evidence on record had concluded that defendant had executed agreement with his free consent and without any coercion‑‑‑Appellate Court below also considered evidence on record and affirmed findings recorded by Trial Court‑‑‑Both Courts below, in circumstances, had not committed any illegality in decreeing the suit.

Shamsher Ali v. Sardar Khan 1991 CLC Note 133 at p.110 ref.

Ch. Nusrat Javed Bajwa for Appellants.

Muhammad Yaqoob Sindhu for Respondents.

Date of hearing: 12th April, 2002.

2003 M L D 249

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD SALEH‑‑‑Appellant

versus

QAMAR‑UD‑DIN and others‑‑‑Respondents

Regular Second Appeal No.54 of 1992, heard on 28th January, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss.12 & 27(b)‑‑‑Suit for specific performance of agreement of sale‑‑­Plaintiff had claimed that suit land was owned by defendant and plaintiff was tenant in land and was regularly paying rent to the defendant who agreed to sell the suit land to plaintiff through agreement of sale for consideration and that defendant after receiving certain amount from plaintiff had promised to execute sale‑deed upon receipt of balance amount‑‑‑Plaintiff had alleged that defendant, instead of executing sale‑deed on stipulated date, had proceeded to sell land to another vendee which sale was violative of sale‑agreement executed by defendant in his favour‑‑‑Plaintiff, however, could not prove execution of sale‑deed by defendant in his favour‑‑‑No allegation appeared in plaint that said other vendee was aware of earlier sale‑agreement allegedly executed in favour of plaintiff by defendant‑‑‑Said other vendee. in circumstances, was a bona fide purchaser of suit land within meaning of S.27(b) of Specific Relief Act, 1877‑‑‑Trial Court and Appellate Court, in circumstances, had rightly dismissed suit filed by the plaintiff.

Malik Amjad Pervaiz for Appellant.

Abdul Hameed Butt and Aamer Rehman for Respondents.

Date of hearing: 28th January, 2002.

2003 M L D 253

[Lahore]

Before Maulvi Anwarul Haq and Parvez Ahmad, JJ

Messrs RAMZAN GENERAL STORES‑‑‑Appellant

versus

Messrs KHURSHID SONS‑‑‑Respondent

Regular First Appeal No. 129 of 1986, heard on 2nd July, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.Vl, R.2‑‑‑Suit for recovery of amount‑‑‑Plaintiff had claimed that he supplied goods to defendant according to contract arrived at between the parties and defendant after receiving such goods made some payment to the plaintiff, but he had failed to pay remaining considerable amount despite demand‑‑‑Defendant had totally denied execution of agreement and receipt of goods from the plaintiff‑‑‑Defendant had also denied that he had made any payment to plaintiff and that any payment was due to him‑‑‑Plaintiff by producing invoices relating to supply of goods to defendant and other specific documents had proved supply of goods to defendant‑‑‑Defendant's own witness had admitted version of plaintiff and bare denial of defendant stood belied by his own examination‑in chief‑‑‑Trial Court in circumstances had rightly decreed the suit of plaintiff.

Ch. M. Abdul Saleem for Appellant.

Mian Nisar Ahmad for Respondent.

Date of hearing: 2nd July, 2002.

2003 M L D 263

[Lahore]

Before Abdul Shakoor Paracha, J

Sheikh FATEH MUHAMMAD ‑‑‑Petitioner

versus

ABDUL AZIZ‑‑‑Respondent

Civil Revision No.3236 of 1996, heard on 19th June, 2002, Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss.2(a), 5, 6, 13 & 23---Suit for pre‑emption ‑‑‑Pre‑emptibility of suit land‑‑‑Making of Talbs‑‑‑Suit was concurrently dismissed by Courts below holding that suit property was not pre‑emptible and that requisite “Talbs” were not duly performed by pre‑emptor‑‑‑"Immovable property" according to S.2(a) of Pre‑emption Act, 1991, whether situated in village or urban area, would not include agricultural land‑‑‑Expression “urban immovable property” would not cover “agricultural land” merely on account of its being located in an urban area‑‑‑Government though had declared that there would be no right of pre‑emption in respect of certain properties mentioned in S.23(a) & (b) of Punjab Pre‑emption Act, 1991, but in the present case, it had not been established that Notification in that respect was issued by Government‑‑‑Jamabandi produced in Court had clearly shown that suit‑land was still subject to land, revenue‑‑‑Suit property neither was in urban area nor within Cantonment limits and Local Government or Cantonment Board had not promulgated any law whereby suit‑land was exempted from law of pre‑emption.‑‑Plaintiff had produced witnesses who proved that plaintiff had made Talb‑e-­Mowathibat and Talb‑e‑Ishhad and minor contradiction in evidence of said witnesses was of no help to the defendant‑‑‑Concurrent findings of Courts below being result of misreading of statements of plaintiff alongwith his witnesses, were set aside in revision by High Court and suit was decreed directing plaintiff to deposit remaining amount of Zar‑e­decree within specified period.

1990 CLC 726; 2001 CLC 51; Salamat Rai v. Kanshi Ram and others AIR 1918 Lah. 334; Abdul Rehman v. Haji Rashid AIR 1937 Lah. 182; Hafiz Hassan Muhammad and 2 others v. Abdul Hameed and 2 others PLD 1982 SC 159; Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1; Abdul Ghias v. Syed Haji Taj Muhammad and 42 others PLD 1995 Quetta 1; Abdul Malik v. Muhammad Latif 1999 SCMR 717 and Muhammad Gul v. Muhammad Afzal 1999 SCMR 724 ref.

Malilt Noor Muhammad Awan for Petitioner.

Hafiz Khalil Ahmad for Respondent.

Date of hearing: 19th June, 2002.

2003 M L D 270

[Lahore]

Before Mrs. Nasira Iqbal, J

Captain UMER BOKHARI‑‑‑Petitioner

versus

ADDITIONAL DISTRICT JUDGE, LAHORE 2 and others‑‑‑Respondents

Writ Petition No. 15597 of 2002, decided on 30th August, 2002.

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

‑‑‑‑Ss.5, Sched. & 14‑‑‑Suit for recovery of dowry articles‑‑‑Appeal against judgment of Family Court‑‑‑Rejection of memorandum of appeal for .non‑affixing of required court‑fee‑‑‑Suit having been decreed by Family Court appeal against judgment and decree .was filed by appellant/judgment‑debtor affixing court‑fee of Rs.15 on memorandum of appear‑‑Appellate Court directed appellant to affix ad valorem court-fee on memorandum of appeal‑‑‑On application of appellant time for affixing required court‑fee was given, but he instead of affixing required court‑fee, filed application for review of order of Appellate Court, which application was dismissed and memorandum of appeal was also rejected due to non‑affixation of required court‑fee‑‑‑Appellant had contended that he being soldier was posted on border at relevant time and his counsel could not contact him and due to that reason he could not affix required court‑fee even within extended period‑‑‑Appellant was responsible to keep in touch with his counsel who had filed his appeal and it could not be believed that appellant, when he was not posted at the border had never any contact with his counsel for about two months after moving application for grant of extension of time for depositing required court‑fee and, rejection of his memorandum of appeal‑‑‑Appellant though was a soldier, but that would not entitle him to any special privilege beyond provisions of Soldiers Litigation Act, 1925‑‑‑Appellant who neither had made up deficiency in court‑fee even within extended period nor had shown sufficient cause for not doing the same, his appeal was rightly dismissed for non‑payment of required court­ fee.

Mirza Daood Baig v. Additional District Judge, Gujranwala and others 1987 SCMR 1169 ref.

Pervaiz Inayat Malik for Petitioner.

Date of hearing: 30th August, 2002.

2003 M L D 274

[Lahore]

Bt fore Tanvir Bashir Ansari, J

NAVEED AHMAD‑ ‑Appellant

versus

NASEER AHMAD and another‑‑‑Respondents

Regular Second Appeal No. 50 of 1994; decided on 11th July, 2002.

Punjab Pre-emption Act (I of 1913)‑‑‑

‑‑‑‑Ss.15 & 21‑‑‑Suit for pre‑emption‑‑‑Suit was filed by minor son of one of vendors through his mother as next friend, but mother of minor plaintiff had never appeared as her own witness, but instead another person had appeared as her attorney who was ignorant of the facts of the case‑‑‑Suit was filed by minor son of vendor, but litigation was financed by the vendor as entire expenditure was borne by the vendor‑‑‑Trial Court decreed the suit holding that even if vendor had financed litigation; suit would not be collusive‑‑‑Appellate Court set aside the judgment and decree passed by Trial Court and dismissed suit holding that suit in fact was manoeuvred by vendor for his own benefit‑‑­Appellate Court had found that suit filed by minor was not for his own benefit, but was in the interest of vendor himself‑‑-Validity‑‑‑Pre­emption suit would not be a bona fide exercise of right by pre‑emptor, but could be a fraudulent act as sufficient material was on record to prove that suit was collusive‑‑‑Suit otherwise was barred by time, though it was filed within one year of attestation of sale mutation,, but evidence on record had proved .that possession of suit property was actually delivered much before attestation of sale mutation‑‑­Appellate Court had rightly set aside judgment and decree of Trial Court‑-‑Plaintiff could not persuade the High Court to take a view different from what had been expressed by Appellate Court in its judgment.

Imam and 7 others v. Saifur Rehman PLD 1984 SC 415; Muhammad Abdullah v. Abdullah and others PLD 1977 kzad J&K 69 and Bashir Ahmad v. Mst. Rasul Bibi and 11 others 1999 SCMR 897 ref.

Ch. Khurshid Ahmad for Appellant.

S.M. Tayyib for Respondents.

Date of hearing: 9th July, 2002.

2003 M L D 292

[Lahore]

Before Pervez Ahmad, J

NASAR ULLAH KHAN‑‑‑Petitioner

versus

STiAUKAT ALI‑‑‑Respondent

Civil Revision No.638‑D of 1998, heard on 19th July, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.12‑‑‑Suit for specific performance of agreement‑‑‑Agreement was arrived at between parties whereby defendant was advanced an amount for purpose of payment of instalments of tractor to .the Bank and it was agreed that in the event of non‑payment of said amount by defendant within specified period, plaintiff, who had given the amount in advance to the defendant, would be entitled to have property transferred in his name‑‑‑Defendant having failed to repay amount to the plaintiff according to terms of agreement, plaintiff had filed suit for specific performance of agreement‑‑‑Both Trial Court and Appellate Court found the plaintiff entitled to recover amount only and decreed the suit to that extent ,and dismissed suit to the extent of entitlement of plaintiff to specific performance of agreement‑‑‑Conduct of defendant had clearly indicated that agreement of transfer of property was in favour of plaintiff in case of non‑payment of amount within specified period‑‑‑Plaintiff, in circumstances,‑ was entitled to a decree for specific performance of agreement by way of transfer of land in his favour‑‑‑Trial Court and Appellate Court, in circumstances, had wrongly passed a decree for payment of amount instead of passing decree for specific performance of agreement‑‑‑Concurrent judgments and decrees passed by the Courts were modified in revision by High Court and suit of plaintiff for specific performance of agreement by way of transfer of land, was decreed.

Hamid Ali Mirza for Petitioner.

Naveed Saeed Khan for Respondent.

Date of hearing: 19th July, 2002.

2003 M L D 294

[Lahore]

Before Maulvi Anwarul Haq, J

KARIM DAD KHAN‑‑‑Petitioner

versus

RAMZAN alias JAN MUHAMMAD through Legal Heirs and others‑‑‑Respondents

Civil Revision No. 1288‑D of 1996, heard on 24th April, 2002.

Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑Ss.10/11‑‑‑Allotment of land‑‑‑Cancellation‑‑‑Oral as well as documentary evidence on record had proved that land was allotted and transferred to the respondent/allottee after amalgamation of units of his deceased mother who was allotted land at a different place‑‑‑On information of double allotment in name of respondent, allotment of land in question was cancelled from his name‑‑‑Suit filed by respondent against cancellation of allotment from his name was concurrently decreed by Trial Court and Appellate Court and land was restored to the respondent‑‑‑Concurrent judgments of Courts below whereby land in question was restored to the respondent being result of misreading of evidence on record, could not be sustained‑‑‑Concurrent judgments and decrees passed by Courts below were set aside by High Court in exercise of its revisional jurisdiction and suit :led by respondent against petitioner was dismissed.

Ch. Qamar‑ud‑Din Mayo for Petitioner.

Nemo for Respondents.

Date of hearing: 24th April, 2002.

2003 MLD 310

[Lahore]

Before Syed Jamshed Ali, J

BASHIR and 6 others‑‑‑Petitioners

versus

LAL ARNOLD and 11 others ‑-‑Respondents

Regular Second Appeal No.47 of 1995, heard on 27th June, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S,12‑‑‑Suit for specific performance of agreement to sell‑‑‑Execution of agreement was not denied by defendant, but he had asserted that plaintiffs were in default in performing their part of contract‑‑‑Onus to prove that plaintiffs were willing to perform their part of contract, was on plaintiffs, but evidence produced by plaintiffs in proof of their case was adequately rebutted by defendants‑‑‑One of plaintiffs who appeared as his own witness had admitted that suit was filed without proper court ­fee and request was made for extension of time to pay court‑fee as they had no money at the time of filing suit‑‑‑Plaintiffs, in circumstances; could not be said to be ready and willing to perform their part of contract‑-‑Copy of mutation whereby inheritance of defendants in respect of suit‑land was sanctioned in favour of defendants was supplied to plaintiffs, but suit was filed by plaintiffs after more than two years to seek specific performance of agreement‑‑‑Delay simpliciter, though could not be a ground to refuse specific performance, if suit otherwise was within time, but undue delay in bringing suit would support version of defendants that plaintiffs were not willing and ready to perform their part of contract‑‑‑Trial Court in circumstances was not justified to decree the suit‑‑‑Appellate Court rightly set aside judgment and decree of Trial Court and dismissed suit holding that it was not established that plaintiffs were ready and willing to perform their part of contract.

Suleman Qureshi for Appellants.

Ch. M. Abdul Saleem for Respondents:

Date of hearing: 27th June, 2002.

2003 M L D 314

[Lahore]

Before Maulvi Anwarul Haq and Parvez Ahmad, JJ

PUNJAB PROVINCIAL COOPERATIVE BANK, LAHORE through General Manager‑‑‑Appellant

versus

FAZAL‑UR‑REHMAN‑‑‑Respondent

Regular Second Appeal No.243 of 1995; heard on 3rd July, 2002..

Contract Act (IX of 1872)‑‑‑

‑‑Ss.73 & 74‑‑‑Cavil Procedure Code (V of 1908), O.VII, R.2‑‑‑Breach f contract‑‑‑Suit for recovery of token money‑‑‑Plaintiff who was interested to purchase land of defendant‑Bank gave highest bid and deposited token money‑‑‑Plaintiff, who did not‑agree to the schedule of payment of amount of consideration and terms and conditions of sub­-Committee of defendant‑Bank, did not execute agreement and intimated Bank and claimed refund of token money paid by him to the Bank‑‑­Defendant‑Bank having refused to refund amount, plaintiff filed suit for its recovery which suit was decreed by Trial Court‑‑‑Defendant‑Bank claimed acceptance of schedule of payment of amount of consideration, but could not produce on record any agreement of acceptance of schedule of payment of plaintiff in its favour‑‑‑Defendant‑Bank which failed to produce any documentary evidence of acceptance of schedule of payment of amount and terms and conditions by the plaintiff, had failed to establish that plaintiff was guilty of violation of terms and conditions of agreement on the basis of which amount deposited by plaintiff could be confiscated‑‑‑Trial Court, in circumstances, had rightly decreed the suit filed by plaintiff for recovery of amount of token money deposited by him with defendant‑Bank.

Industrial Development Bank of Pakistan v. Messrs Haji Dossa Ltd. And 6 others PLD 1985 Kar. 71 and Province of West Pakistan v. Messrs Mistri Patel & Co. PLD 1969 SC 80 ref.

Sadiq Hayat Khan Lodhi for Appellant.

Ashfaq Qayyum for Respondent.

Date of hearing: 3rd July, 2002.

2003 M L D 329

[Lahore]

Before Mian Hamid Farooq, J

IMAM DIN an 4 others‑‑‑Petitioners

versus.

MERAJ DIN and others‑‑‑Respondents

Civil Revisions Nos. 1938 of 1990 and 109 of 1991, heard an 15th April, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.12‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 17 & 79 –Suit for specific performance of agreement‑‑‑Execution of agreement of sale, proof of‑‑‑Plaintiffs had claimed that predecessor-in-interest of defendants had entered into an agreement to sell his Land in his favour and that predecessor‑in‑interest of defendants despite receiving earnest money through receipt had failed to execute sale‑deed and after his death defendants who were his legal heirs also had avoided to execute sale­ deed and instead they had sold the land in favour of other persons‑‑­Defendants had denied execution of alleged agreement of sale by their predecessor‑in‑interest‑‑‑Validity‑‑‑Plaintiffs were under obligation to prove execution of alleged agreement of sale, but they failed to produce marginal witnesses of agreement to sell and receipt of payment of earnest money and witness produced by plaintiff had not deposed anything about execution of agreement to‑sell ‑‑‑Defendants having denied execution of agreement of sale, plaintiffs who were beneficiaries of said agreement, should have produced scribe and stamp vendor in order to prove execution of agreement, but such important witnesses were not produced‑‑‑Trial Court, in circumstances, had rightly dismissed suit holding that plaintiffs were not entitled to any relief‑..Appellate Court, was not justified to decree the suit after setting aside judgment and decree passed by Trial Court‑‑‑Judgment rendered by Appellate Court mechanically without taking into consideration evidence on record, was set aside and judgment and decree passed by Trial Court, were restored and suit filed by plaintiffs stood dismissed.

Taj Din and another v. Mst. Mehr Mai and 7 others 1997 SCMR 134 and Muhammad Nazir and 2 others v. Mst‑ Watir Begum 1999 SCMR 2594 ref.

Muhammad Sarwar Awan and Rao M.I‑ 2afar Khan for Petitioners.

Ch. Noor Ahmad Dillum for Respondents.

Date of hearing: 15th April, 2002.

2003 M L D 334

[Lahore]

Before Jawwad S. Khawaja and Abdul Shahoor Paracha, JJ

GHULAM MUSTAFA‑‑‑Appellant

versus

MUHAMMAD ALAMGIR and 7 others‑‑‑Respondents

Regular First Appeal No.31 of 1992, decided on 21st May, 2002.

Specific Relief Act (I of 1877)‑‑‑‑

‑‑‑‑Ss.8 & 54‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11 ‑‑‑ Suit for possession and permanent injunction‑‑‑Rejection of plaint‑‑‑Title in respect of suit property was finally decided in favour of defendants by Supreme Court‑‑‑Plaintiff in his suit had asserted that he had purchased suit property through registered sale‑deed from executant thereof and that he was owner of the suit property‑‑‑Defendants had moved application for rejection of plaint on ground that title of property having finally been decided by Supreme Court in their favour, plaintiff had no cause of action‑‑‑Name of alleged executant of sale‑deed on basis of which plaintiff had filed suit, had not been mentioned in sale‑deed itself‑‑‑Alleged executant who himself had no title in the suit property, could have no right to sell the same in favour of plaintiff‑‑‑Suit having been filed on the basis of alleged sale‑deed which was void ab initio, no cause of action arose in favour of plaintiff‑‑­Trial Court had rightly rejected plaint under O. VII, R.11, C. P. C.

The Chief Administrator, Auqaf, West Pakistan, Lahore v. Sh. Muhammad Jahangir and another 1981 CLC 886 ref.

Rana Muhammad Sarwar for Appellant.

Kh. Saeed‑uz‑Zafar for Respondents.

Date of hearing: 21st May, 2002.

2003 M L D 338

[Lahore]

Before Sh. Abdur Razzaq, J

Sheikh IFTIKHAR AHMED and another‑‑‑Petitioners

versus

Dr. MUHAMMAD ILYAS‑‑‑‑Respondent

Civil Revisions Nos.234, 229 and 242 of 2000, heard on 16th May, Partition Act (IV of 1893)‑‑‑

‑‑Ss.2 & 3‑‑‑Civil Procedure Code (V of 1908), O.XXVI, R.9‑‑‑Suit for partition‑‑‑Sale of property‑‑‑Appointment of Local Commission‑‑­Suit property had three shareholders and one of them filed a suit for partition which suit was decreed and execution petition was filed‑‑­During pendency of execution petition two shareholders filed application under S.3 of Partition Act, 1893 and Trial Court passed order whereby Local Commission was appointed by Trial Court to assess value of suit property‑‑‑Since no application under S.2 of Partition Act, 1893 had been moved which was prerequisite for moving application under S.3 of Partition Act, 1893, Trial Court could not appoint a Local Commission to assess value of the property.

Syed Azhar Mehmood Shah and Ch. Tariq Mehmood Babar for Petitioner (in C.R. No‑234 of 2002 and for Respondent (in C.Rs. Nos.299 and 242 of 2000).

Hafiz Saeed Ahmed Sheikh for Respondent (in C.R. No.234 of 2000 and for Petitioner (in C.Rs. Nos. 229 and 242 of 2000).

Date of hearing: 16th May, 2000

2003 M L D 341

[Lahore]

Before Parvez Ahmad, J

AFTAB AHMAD KASANA and 2 others‑‑‑Petitioners

versus

MUHAMMAD ANWAR and 9 others‑‑‑‑Respondents

Civil Revision No. 1144 of 1996, heard on 22nd July, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑S.12‑‑‑Civil Procedure Code (V of 1908), S.12(2)‑‑‑Suit for specific performance of agreement of sale‑‑‑Application for setting aside judgment and decree on allegation of fraud‑‑‑Suit having been dismissed by Trial Court, plaintiff filed appeal against judgment and decree passed by Trial Court‑‑‑During pendency of appeal executant made a conceding statement in favour of the plaintiff and Appellate Court allowed the appeal and set aside judgment and decree of Trial Court and decreed the writ‑‑‑Petitioners filed application under S.12(2), C.P.C. alleging that prior to making conceding statement by executant they had already purchased suit property from executant for valuable consideration and that after execution of sale‑deed in their favour, executant being no longer owner of the suit property, was not legally competent to make

onceding statement in favour of plaintiff‑‑‑Execution of earlier sale‑

'.e

~ed in favour of petitioners in respect of suit property neither was

hallenged by executant nor plaintiff had ever tried to implead petitioners as defendants in suit filed by him against executant which had shown collusion of executant and plaintiff ‑‑‑Executant by making a conceding statement had played fraud upon petitioners as well as upon the Court‑‑­ Appellate Court was to give, clear finding upon practising fraud and mis-representation by executant at time of passing of decree, but it did not do so‑‑‑Appellate Court either did not read or misread evidence on record‑‑­ Orders passed by Appellate Court below suffering from illegality and material irregularity, were set aside by High Court in revision and application filed by petitioners under S.12(2), C.P.C. was allowed and suit filed by plaintiff was dismissed.

Syed Kaleem Ahmad Khurshid for Petitioners.

Muhammad Akram Nagra for Respondents.

Date of hearing: 22nd July, 2002.

2003 M L D 345

[Lahore]

Before Parvez Ahmad, J

CHIRAGH DIN‑‑‑Petitioner versus

MUHAMMAD SIDDIQUE‑‑‑‑Respondent

Civil Revision No‑3139 of 1996, heard on 23rd July, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.12‑‑‑Suit for specific performance of agreement of sale‑‑‑Trial Court decreed suit, but Appellate Court dismissed the same in appeal‑‑­Plaintiff could not prove by any evidence that possession of suit property was delivered to him by defendant in consequence of alleged agreement of sale‑‑‑Nothing was on record to prove that earnest money was paid by plaintiff to the defendant‑‑‑Even marginal witness and scribe of the agreement did not state that amount as earnest money was paid by plaintiff to defendant in his presence which had shown that even if the agreement was executed, same was without consideration‑‑‑Plaintiff having failed to prove execution of agreement, Trial Court was not justified to decree the suit in post remand proceedings‑‑‑Appellate Court, in circumstances, had rightly dismissed suit after setting aside judgment and decree of Trial Court on basis of evidence on record‑‑‑In absence of any misreading or non‑reading of evidence on record by Appellate Court its judgment and decree, could not be interfered with by High Court when no illegality or material irregularity was established on record.

Hassan Ahmad Kanwar for Petitioner.

Muhammad Aslam Buttar for Respondent.

Date of hearing: 23rd July, 2002.

2003 M L D 349

[Lahore]

Before Syed Jamshed Ali, J

BAKHSHA‑‑‑Petitioner

versus

FALAK SHER ‑‑‑‑Respondent

Civil Revision No. 156 of 1992, heard on 31st May, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss.12 & 42‑‑‑Suit for possession and subsequent suit for declaration‑‑‑Consent decree, challenge to‑‑‑Suit for possession earlier filed by plaintiff in respect of property in dispute was decreed with consent of defendant‑‑‑After more than five years, defendant challenged consent decree by filing suit for declaration on grounds that decree passed in earlier suit for possession was violative of M.L.R. 64 (1959) and M.L.R. 115 (1972); that said earlier decree having not been executed, it was rendered inoperative and defendant was entitled to declaration claimed by him in his‑ subsequent suit and that despite the decree defendant continued to remain in possession of the property in dispute‑‑‑Validity‑‑‑Plaintiff with passing of decree in his favour having become a co‑sharer in joint Khata, Appellate Court had rightly observed that possession of one co‑sharer would enure to benefit of all co‑sharers­‑‑Suit for declaration subsequently filed by defendant could not have been decreed only on ground that property in dispute was in possession of defendant or that earlier decree had not been executed‑‑‑Earlier decree having been passed with consent of defendant, defendant could not be allowed to turn around to say that decree should be set aside because he continued to remain in possession of property in dispute or that decree was violative of M.L.R.64 and M.L.R.115.

Malik Muhammad Akram Khan Awan for Petitioner.

Mian Jamil Akhtar for Respondent.

Date of hearing: 31st May, 2002.

2003 M L D 352

[Lahore]

Before Maulvi Anwarul Haq, J

SHAHZADI MUMTAZ JAHAN and others‑‑‑Petitioners

versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Civil Miscellaneous No.527 of 2002 in Writ Petition No. 14855 of 1997 heard on 11th April, 2002.

Constitution of Pakistan (1973)‑-

‑‑‑Art.199‑‑‑Civil Procedure Code (V of 1908), S.9‑‑‑Constitutional petition ‑‑Applicability of Civil Procedure Code‑‑‑Petitioner, an old Pardanashin lady feeling aggrieved that land belonging to Quaid‑e‑Azam. Muhammad Ali Jinnah in Gulberg, Lahore had been usurped, and prayed that Authorities be called upon to investigate the matter and to locate the said property‑‑‑None of the heirs of Quaid‑e‑Azam had been impleaded in the Constitutional petition and only an entity "The estate of Muhammad Ali Jinnah" was impleaded as one of respondents‑­Validity‑‑‑Civil Procedure Code, 1908 was applicable to Constitutional petition and only the natural or legal persons were to be the parties to a lis ‑‑‑Matter of the estate of Quaid‑e‑Azam was sub judice before the Sindh High Court through heir or heirs representing estate‑­Constitutional petition was disposed of with a direction to Additional Advocate-General to provide all details to Official Assignee/Administrator appointed by High Court of Sindh at Karachi.

M. J.I. Jafree for Petitioners.

Fauzi Zafar, A.A.‑G. for Respondents.

Mian Muzaffar Hussain for the L.D.A.

Date of hearing: 11th April, 2002.

2003 M L D 354

[Lahore]

Before Mian Saqib Nisar and Muhammad Sair Ali, JJ

MUHAMMAD IQBAL‑‑‑Appellant

versus

Ch. SHER MUHAMMAD and 5 others‑‑‑Respondents

Regular First Appeal No.21 of 1994, decided on 3rd July, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss.12, 42 & 54‑‑‑Suit for specific performance of oral agreement, declaration and permanent injunction‑‑‑Suit shop was owned jointly by the parties which was partitioned and possession of half portion was delivered to each one of them‑‑‑Subsequently through conciliation proceeding conciliators arranged purported oral agreement of sale between the plaintiff and the defendant and earnest money to be paid by plaintiff to defendant remained with one of conciliators‑‑‑Plaintiff and his witnesses who had acted as conciliators had admitted in their evidence that earnest money settled between the parties was never passed on to the defendant/vendor‑‑‑Defendant who had never received earnest money, refused to execute and enter into a sale agreement in writing for the sale of suit shop to the plaintiff‑‑‑Final agreement to sell between the parties never came into existence and in absence of exchange of earnest money between the plaintiff and defendant, the broad terms of transaction as settled by conciliators did not mature into an enforceable agreement to sell to become basis of a suit for specific performance‑‑‑Trial Court, in circumstances, had rightly dismissed the suit filed‑‑‑In absence of any legal infirmity in judgment and decree passed by Trial Court, said judgment and decree could not be interfered with in appeal.

Ch. Hameed‑ud‑Din for Appellant.

Jariullah Khan for Respondents.

Dates of hearing: 27th and 28th May, 2002.

2003 M L D 360

[Lahore]

Before Maulvi Anwarul Haq; J

Miss TASNIM MALIK ‑‑‑Petitioner

versus

SOCIAL WELFARE DEPARTMENT, GOVERNMENT OF THE PUNJAB through Director‑General, Lahore and 5 others‑‑‑Respondents

Writ Petitions Nos; 15947 of 1999, 4815 of 2000 and Civil Miscellaneous No. l of 2002, heard on 31st January, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Election‑‑‑Petitioner had stated that she would be satisfied if a direction would be issued to the effect that election ‑be held in accordance with the constitution of the Organization‑‑‑President of the Organization was directed by the High Court to make arrangements for the said election and in case some directions or assistance was required, President of the Organization could approach the Authority who would provide assistance in the matter.

Ali Akbar Qureshi for Petitioner.

Fauzi Zafar, A.A.‑G. with Abdul Wahid Qazi for Applicant (in C.M. No.l of 2002).

Date of hearing: 31st January, 2002.

2003 M L D 362

[Lahore]

Before Syed Jamshed Ali, J

SIDDIQUL HASSAN ‑‑‑Petitioner

versus

PUBLIC AT LARGE (AWAM‑UNNAS) and 5 others‑‑‑Respondents

Civil Revision No.403 of 1993, decided on 26th July, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Islamic Law‑y ‑Suit for declaration ‑‑‑Revisional jurisdiction, exercise of‑‑‑Plaintiff had claimed that his cousin having died without leaving any heir in Pakistan, plaintiff was entitled to inherit movable and immovable properties of deceased‑‑‑Two Courts below on basis of evidence on record concurrently dismissed suit filed by plaintiff holding that plaintiff had failed to establish his relationship with deceased and that plaintiff had himself admitted that deceased had two brothers and one sister who were residing in India‑‑‑Question of relationship essentially was a question of fact which stood concluded by concurrent findings of two Courts below‑‑‑With admission of plaintiff that deceased had left behind two real brothers and a sister though residing in India, plaintiff was rightly held by Courts below not entitled to inherit properties left by deceased‑‑­Concurrent findings of Courts below could not be interfered with in revision by High Court.

Sh. Irfan Akram for Petitioner.

Mrs. Shaista Qaiser for Respondents Nos.2, 4 and 5.

Date of hearing: 26th July, 2002.

2003 M L D 364

[Lahore]

Before M. Javed Buttar, J

PROVINCE OF PUNJAB through Secretary Irrigation Lahore and 2 others‑‑‑Petitioners

versus

Messrs PROJECT TRADING & CO. HEAD OFFICE, LAHORE and 2 others‑‑‑‑Respondents

Civil Revision No. 1674 of 1998, heard on 18th July, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), Ss. 16, 20 (a)(b) & O. VII, R.10‑‑‑Limitation Act (IX of 1908), Ss.5 & 14‑‑‑Suit for declaration‑-­Territorial jurisdiction of Court‑‑‑Application for return of plaint‑‑­Delay, condonation of‑‑‑Suit filed in Court at L was objected to by defendants on ground that Court at L had no jurisdiction to try the suit‑‑­Defendants had filed application under Ss. 16, 20 & O. VII, R.10, C. P. C. for return of the plaint to plaintiff alleging that subject‑matter of suit belonged to District BN, site concerned was situated there and cause of action also arose there, but plaintiff had malafidely instituted the suit at L which required to be sent to Civil Court of BN‑‑‑Trial Court dismissed the said application only because defendant (Province of Punjab) had been impleaded through Secretary Irrigation, whose offices were situated at L without realizing that Secretary Irrigation had played no role in the award of works to the plaintiff‑‑‑Defendant filed revision petition against dismissal order of Trial Court‑‑‑Work orders were issued to plaintiff at BN, sites at which works were carried out by plaintiff were situated there and rescinding letter which was cause of action was also issued at BN‑‑‑Subject‑matter of suit, in circumstances, had no concern at all with L‑‑‑Court at L had no jurisdiction to try suit‑‑‑Trial Court had overlooked the fact that Government did not carry on any business in relation to its normal functions and it did not reside at any particular place nor did it personally work for gain, as both said terms, as employed in S.20(a)(b), C.P.C. were used with reference to natural persons‑‑‑Delay, if any, in filing revision against order of Trial Court was condoned which occurred mainly due to filing of appeal by defendants before a wrong forum‑‑‑Plaint was directed to be returned to plaintiff for its presentation before Court at BN.

Pakistan v. Waliullah Sufyani PLD 1965 SC 310 ref.

Naseem Sabir Ch., Addl. A.‑G. for Petitioners.

Muhammad Yousaf Chughtai for Respondents.

Date of hearing: 18th July, 2002.

2003 M L D 368

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD MOOSA and others‑‑‑Petitioners

versus

SECRETARY (SETTLEMENT AND REHABILITATION)/ SETTLEMENT QOMMISSIONER (INDUSTRIES) PUNJAB, BOARD OF REVENUE, LAHORE

and others‑‑‑‑Respondents

Writ Petition No. 177‑R of 1995 and Civil Miscellaneous Application No. 1384 of 2001, heard on 11th July, 2002.

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑‑

‑‑‑‑S.10‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), Ss.2 & 3‑‑‑Constitution of Pakistan (1973), Art.l99‑‑­Constitutional petition‑‑‑Transfer of excess area‑‑‑Claim for‑‑‑Person who was transferred a particular area, could not lay claim to any other area over and above his own transferred area when said other area which belonged to someone else had never been transferred to him‑‑‑Such illegal claim‑was rightly rejected‑‑‑Transferee who had no locus standi, could not successfully invoke jurisdiction of High Court in that respect.

Ahmad Jamal v. Nazir Ahmad Khan and others 1975 SCMR 24 and Ali Muhammad v. Makhdoom Sirajul Haq Qureshi 1975 SCMR 33 ref.

(b) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑‑

‑‑‑‑S.10‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), Ss.2 & 3‑‑‑Constitution of Pakistan (1973) Art.199‑‑­Constitutional petition‑‑‑Transfer of excess area‑‑‑Claim for‑‑‑Person who was transferred a particular area, had himself accepted the position that excess area was transferred to him and that he was ready and willing to pay the price for the same so that transfer order already issued to him could remain intact‑‑‑In view of such admission, concessions and stance of transferee, he could not, be held to be transferee of area in question and could not take such a position later on before Settlement Commissioner/Notified Officer or before High Court‑‑‑Transferee was estopped in law and was precluded from taking self‑contradictory positions‑‑‑Inconsistent and contradictory pleas could neither sustain in Court of law nor be countenanced.

A.R. Khan v. P.N. Boga through Legal Heir PLD 1987 SC 107 ref.

(c) Administration of justice‑‑‑

‑‑‑‑ Courts were not expected to act in aid of injustice to perpetuate the illegalities or put a premium on ill‑gotten gains.

Messrs Valcan Company (Pvt.) Ltd.. Lahore through Managing Director v. Collector of Customs, Karachi and 3 others PLD 2000 SC 825 ref.

(d) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑‑

‑‑‑‑S.10‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), Ss.2 & 3‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Amendment and corrections in permanent transfer order‑‑‑Transfer order having been issued much after repeal of Evacuee Laws, Department was not denuded of 'power to rectify its errors and omissions, but was well within its jurisdiction and authority to make necessary amendments and corrections in Transfer Order‑‑­Principle that after issuance of P.T.D., Department would become functus officio, was not applicable to the present case as Transfer Order was issued much after repeal of evacuee laws‑‑‑Cases where P.T.D., had been issued before repeal of laws would stand on altogether different footings.

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

‑‑‑‑Ss.2 & 3‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Application for impleading as party in the Constitutional petition‑‑‑Applicants seeking to be impleaded as party had contended that they had their unsatisfied units which had to be satisfied in view of direction contained in an earlier Constitutional petition and also claimed that a particular Khasra number was allotted to them in satisfaction of their claim‑‑‑Allotment claimed by applicants was pendente lite, when the same was not available for disposal, even no such allotment could lawfully be made‑‑‑Claim of applicants being untenable, their application was dismissed.

Muhammad Ramzan and others v. Member (Rev.)/CSS and others 1997 SCMR 1635 and Ali Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others 2001 SCMR 1822 ref.

Maqbool Sadiq for Petitioners.

Ahmad Awais for Respondent No. 1.

Khan Muhammad Younas Khan for Respondent 2.

Ch. Naeem Shakir for Respondents Nos.3 to 16.

Muhammad Aslam Khan Buttar for Applicants (in C.M.1384 of 2001.

Dates of hearing: 17th June and I lth July, 2002.

2003 M L D 376

[Lahore]

Before Maulvi Anwarul Haq, J

Subedar (Retd.) NOOR ABDULLAH ‑‑‑ Appellant

versus

MUHAMMAD NAWAZ‑‑‑Respondent

Second Appeal from Order No.6 of 2001, heard on 17th September, 2002.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑Ss.13 & 15‑‑.Court‑fees Act (VII of 1870), S.28‑‑‑Appeal against judgment of Rent Controller‑‑‑Court‑fee‑‑‑Memorandum of appeal bearing court‑fee of Rs.15 was filed to question order of Rent Controller, but neither office nor the respondent had raised any objection with regard to deficiency of court‑fee when appeal vas heard and decided‑‑‑Memorandum of first appeal had to bear a court‑fee‑‑­Calculated on yearly rent which amounted to Rs.1,650, but only a court­ fee of Rs.15 had been paid‑‑‑Matter squarely fell within ambit of S.28 of court‑fees Act, 1870 which authorized the Court to order that memo. of appeal be stamped and documents having been so stamped then every proceedings thereto would be considered as valid as if properly stamped in the first instance‑‑‑High Court directed that court‑fee of balance amount of Rs.1,635 be paid on the memo. of first appeal on or before the specified date.

Land Acquisition Collector, No wshera and others v. Sarfraz Khan and others PLD 2001 SC 514; Muhammad Shaft. v‑ Mushtaque Ahmad through Legal" Heirs and others 1996 SCMR 856 and Habib Ismail Bajwa v. Khawaja Ghulam Mohy‑ud‑Din PLD 1970 Lah. 428 ref.

Malik Muhammad Akram for .Appellant.

Abdul Rasheed Awan for Respondent.

Date of hearing: 17th September, 2002.

2003 M L D 378

[Lahore]

Before Karamat Nazir Bhandari, J

Syed KHALID MASOOD‑‑‑Petitioner

versus

Mst. ZAHEER and others‑‑‑Respondents

Writ Petition No.4‑R of 1989, decided on 1st August, 2000.

Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑‑

‑‑‑‑S.30‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), Ss.2 & 3‑‑‑Transfer of Evacuee Lands (Katchi Abadies) Ordinance (XX of 1972), S.4‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Transfer of property‑‑‑Recovery of possession‑‑‑Petitioner had claimed that he purchased plot, in dispute, through auction but he could not be delivered possession, thereof because same was in occupation of various dwellers‑‑‑Petitioner had further contended that subsequently the colony was declared as Katchi Abadi and no chance was left for him to occupy the same and that plot in dispute was transferred to him by Additional Settlement Commissioner, but PTD could not be issued, to him as plot was treated .as residency property and was transferred to the respondent‑‑‑Petitioner had asserted that he challenged order of transfer in favour of respondent, but the Administrator dismissed the same‑‑‑Petitioner had filed Constitutional petition praying for setting aside order of Deputy Administrator as well as Administrator, Residual Property and for transfer of suit plot in his favour‑‑‑Validity‑‑‑Both ‑ Deputy Administrator as well as the Administrator had found the order of transfer of plot in favour of petitioner as void and liable to be ignored on ground that there was no provision at the relevant time in relevant law for transfer of alternate plot to the petitioner and petitioner was not able to show that the reasoning was incorrect‑‑‑Once evacuee property was transferred, transferee if not in physical possession, could deal with occupier thereof under S.30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958‑‑­Merely because petitioner could not recover possession, would not furnish him any valid basis for award of substituted property to him‑‑­Transfer of plot to the petitioner being void under S.4 of Transfer of Evacuee Lands (Katchi Abadi) Ordinance, 1972 any transfer in favour of petitioner would hardly create any right in his favour‑‑‑Constitutional petition filed by petitioner otherwise suffering from gross laches, was dismissed on that ground as well.

Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351 ref.

R.A. Zafar for Petitioner.

Ahmad Awais for Respondents Nos. l, 9 and 11.

Altaf‑ur‑Rehman Khan for Respondents No A0.

Khaliq Ahmad Ansari for Respondents Nos. 12 to 15.

Dates of hearing: 31st July and 1st August, 2000.

2003 M L D 382

[Lahore]

Before Muhammad Farrukh Mahmud, J

ASIF ALI and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Bail No.1468 of 2002, decided on 31st July, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss.337‑L(ii)/353/506/186/109‑‑­Pre‑arrest bail, confirmation of‑‑‑Accused were empty‑handed and had been joining investigation which was still in progress‑‑All offences except under S.506, P.P.C. were bailable and whether second part of said section was applicable in the case, would be decided by Trial Court after going through the evidence‑‑‑Ad‑interim pre‑arrest bail already granted to accused was confirmed in circumstances.

Tariq Muhammad Iqbal Chaudhry for Petitioners.

Syed Altaf Hussain Bukhari for the State:

Date of hearing: 31st July, 2002.

2003 M L D 384

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD SIDDIQUF ‑‑‑ Petitioner

versus

SHABBIR HUSSAIN ‑‑‑Respondent

Civil Revision No.380 of 1985, decided on 25th October, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.42‑‑‑Suit for declaration ‑‑‑Benami transaction‑‑‑Doctrine of advancement, applicability of‑‑‑Plaintiff had claimed that he purchased suit shop for a consideration and paid the amount thereof, but got sale­ deed executed in the name of defendant who was his minor son as Benami‑‑‑Defendant having denied title of plaintiff, need to file suit arose‑‑‑Defendant had pleaded that consideration was paid by him without disclosing any source of income as at the time of sale transaction, defendant was minor‑‑‑Trial Court decreed the suit, but Appellate Court dismissed the suit, assuming that plaintiff had purchased the suit shop in the name of his son with the intention that shop would be owned by his son by way of gift by his father in his favour ‑‑‑Validity‑‑­Approach of Appellate Court was hot in consonance with law‑‑‑Appellate Court proceeded to apply doctrine of advancement provided for in English Law which presumed that if a purchase was made by a person in the name of a child or wife then child or wife would be considered as purchasers for valuable consideration‑‑‑Said doctrine was not applicable in Pakistan and there was no such presumption in law of Pakistan‑‑‑­Decision as to whether transaction was a Benami or whether same amounted to a gift, was one of intention‑‑‑Presumption was that where it was proved that property was purchased in the name of son by the father, son was a Benami and father was a real owner‑‑‑Appellate Court had acted with material irregularity in exercise of its jurisdiction while passing judgment and decree whereby suit of plaintiff was dismissed‑‑‑Judgment and decree passed by Appellate Court below, were set aside by High Court while judgment and decree of Trial Court whereby suit was decreed, were restored, with costs.

Aftab Nasir v. Mst. Fazal Bibi and others PLD 1965 Lah. 550 ref.

Fawad Malik for Petitioner.

Zahid Hussain Khan for Respondent.

Date of hearing: 25th October, 2000.

2003 M L D 387

[Lahore]

Before Tassaduq Hussain Jilani, J

Ms. FARZANA SHAHEEN and another‑‑‑Petitioners

Versus

ABDULLAH and another‑‑‑Respondents

Civil Revisions Nos.437‑D and 421‑D of 1997, heard on 24th July, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.42‑‑‑Suit for declaration‑‑‑Plaintiffs (ladies) had claimed to be owners in possession of suit‑land on basis of two registered gift‑deeds executed in their favour by their grandfather‑‑‑Grandfather of plaintiffs on the other hand filed declaratory suit disowning the alleged gift in favour of plaintiffs claiming that he was still owner in possession of the suit‑land‑‑‑Counsel for plaintiffs stated that if any of six persons named by the counsel took oath on Holy Qur'an about gift made in favour of plaintiffs, suit be decided in terms of the statement‑‑‑Case was adjourned for appointment of referee among those six persons, but on the adjourned date defendants produced one of those six persons who took oath on Holy Qur'an that grandfather of the plaintiffs had made no gift of suit­-land in favour of the plaintiffs‑‑‑Trial Court dismissed the suit and decreed suit by grandfather on that date which, in fact, was fixed for appointment of referee‑‑‑Judgment and decree passed by Trial Court were upheld by Appellate Court‑‑‑Validity‑‑‑Both the Courts below had failed to appreciate that plaintiffs were ladies and were not present on any of the dates when counsel agreed to have matter decided through referee‑‑‑Plaintiffs had a right to raise objections before statement of referee was recorded or his statement was given effect‑‑‑Trial Court should have allowed parties to resile and should have decided objection at the first instance‑‑‑Agreement entered into between counsel for parties could at best be a contract and if a party would seek its specific performance, that was a discretion of the Court to allow or refuse‑‑­Defendants on the adjourned date were to name the referee and then appointment was to be made by Trial Court and thereafter his statement was to be recorded accordingly, but Trial Court instead acted in haste and recorded statement of referee on that very date‑‑‑Both Courts below had acted with material irregularity warranting interference in revisional jurisdiction of High Court‑‑‑High Court set aside concurrent judgments of Courts below and case was remanded to be decided afresh after considering objections of plaintiffs with regard to appointment of referee.

PLD 1970 SC 245; PLD 1978 Lah. 31; 1981 SCMR 162; Muhammad Akbar and another v. Muhammad Aslam and another PLD 1970 SC 241 and Dilawar Khan v. Tikka Khan and others PLD 1954 Lah. 290 and Inayat Ali v. Diwan Ali 2000 CLC 27 ref.

Syed Muhammad Kalim Ahmad Khursheed for Petitioners.

M. Zafar Iqbal Ch. for Respondents.

Date of hearing: 24th July, 2002.

2003 M L D 391

[Lahore]

Before Pervez Ahmad, J

AHMAD DIN‑‑‑Petitioner

Versus

MUHAMMAD HUSSAIN and 5 others‑‑‑Respondents

Civil Revision No. 1761 of 1996, heard on 29th July, 2002.

Specific Relief Act (I of 1877)‑--

‑‑‑‑S.8‑‑‑Suit for possession‑‑‑Question of entitlement, determination of‑‑‑Suit having been dismissed by Trial Court, plaintiff filed appeal against such order‑‑‑Appellate Court dismissed appeal with direction to approach Revenue Authorities with regard to remaining area of land‑‑­Validity‑‑‑Since question of ownership and entitlement to possession of the suit‑land was to be determined by Civil Courts, orders passed by Trial Court and Appellate Court directing plaintiff to approach Revenue Authorities were uncalled for and were without any legal basis‑‑­Revision petition to the extent of prayer that direction by Appellate Court to approach Revenue Authorities was uncalled for, was allowed and said direction was set aside, in exercise of revisional jurisdiction otherwise revision petition was dismissed.

Mirza Hafeez‑ur‑Rehman for Petitioner.

Malik Muhammad Nadeem for Respondents.

Date of hearing: 29th July, 2002.

2003 M L D 394

[Lahore]

Before Abdul Shakoor Paracha, J

ABDUR REHMAN‑‑‑Petitioner

Versus

MUHAMMAD KHAN alias KHAN MUHAMMAD ‑‑‑Respondent

Civil Revision No. 101 of 2002, decided on 14th February, 2002.

Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑ ‑‑Ss.6 & 13‑‑‑Suit for pre‑emption ‑‑‑Suit‑land comprised of two Khatas' and in one Khata both plaintiffs and defendant vendee were co‑sharers with vendor whereas in other' Khata plaintiff was not co‑sharer‑‑­Plaintiff, in circumstances, was entitled to pre‑empt half share in Khata in which he was co‑sharer and in other Khata in which he was not co­sharer, he had no right of pre‑emption‑ ‑Appellate Court, in circumstances, was not justified to decree the suit holding that both plaintiff and defendant were co‑sharers in both Khatas and had equal right of pre‑emption ‑‑‑High Court modified judgment of Appellate Court below to the extent that one half of land of Khata in which plaintiff was co‑sharer would go to plaintiff and decreed the suit to that extent and dismissed the suit of plaintiff to extent of one‑half share in other Khata in which plaintiff, was not co‑sharer.

Malik Muhammad Khalid Dhudhi for Petitioner.

Rab Nawaz Khan Niazi for Respondent.

Date of hearing: 14th February, 2002.

2003 M L D 398

[Lahore]

Before Khawaja Muhammad Sharif, J

UMAR HAYAT‑‑ ‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Revision No.6386 of 2002, decided on 4th October, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.11 & 16‑‑‑Bail, grant of‑‑‑Case was registered against five accused persons and out of them four had been allowed bail‑‑‑Accused remained on physical remand for 14 days, but alleged abductee was not recovered‑‑‑No useful purpose could be served by detaining said accused further, when offence alleged against him did not fall within ambit of S.497(1), Cr.P.C.‑‑‑Accused was admitted to bail, in circumstances.

1982 PCr.LJ 1192; 1984, PCr.LJ 675 and KLR 1999 Criminal Cases 534 ref.

Shah Ahmad Khan Baloch and Abdul Qayyum for the State.

Date of hearing: 4th October, 2002.

2003 M L D 399

[Lahore]

Before Muhammad Sair Ali, J

MUMTAZ KHAN and 8 others‑‑‑Petitioners

Versus

Haji NAWAB KHAN‑‑‑Respondent

Civil Revision No. 1653‑D of 1997, heard on 6th July, 2002.

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

‑‑‑‑S.12‑‑‑Suit for specific performance of agreement‑‑‑Earlier a suit challenging mutation of inheritance was pending between the defendant and his step‑brothers and sisters which was decreed in terms of compromise between the parties and defendant got his share of estate in that suit---Plaintiff had claimed that during pendency of said suit, defendant by executing an agreement had agreed that suit-land upon decree would be transferred in favour of plaintiff by defendant in consideration of exchange of land owned by plaintiff in his village to defendant and that plaintiff would also bear all costs of litigation in earlier suit---Suit for specific performance was filed by plaintiff against defendant after decree on basis of compromise was passed in favour of defendant in earlier suit---Defendant categorically denied the execution of any agreement contending that he had only thumb-marked blank stamp paper in favour of plaintiff, but it was to, subscribe a special power of attorney thereon for pursuing pending litigation between him and his step-brothers and sisters---Validity---Having admitted thumb-marking the blank paper, onus was upon defendant to prove that thumb-impression upon blank paper was for a purpose different for which it was purportedly used by plaintiff, but defendant had not been able to discharge that onus as he could not offer any explanation as to reason for executing a special power of attorney in favour of plaintiff by defendant when they were not related to each other at all ---Defendant had failed to disprove execution of agreement in favour of plaintiff---Courts, in circumstances, had rightly decreed the suit concurrently holding that agreement was duly and properly executed by defendant in favour of plaintiff upon due consideration---In absence of any misreading or non-­reading of evidence, High Court in exercise of its revisional jurisdiction had no jurisdiction to interfere in finding of fact duly and properly reached by Courts below.

(b) Islamic Law---

----Inheritance---Upon opening of inheritance, rights and interests in the estate of deceased, automatically would devolve upon the heirs of deceased---Denial of right of one heir by others would not mean that if such heir was legitimately entitled to his share in inheritance, he would be deprived of same upon denial or incorporation of illegal mutation of inheritance---Sanctioning of mutation of inheritance would not deprive the person of the title because inheritance mutation was not a document of title and would not settle question of ownership between the parties.

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

----O.VIII, R.1---Pleadings---Parties could not be allowed departure from their own pleadings and to plead a ground which they had neither raised in written statement nor in their contention before the Courts below.

Khizer Abbas Khan for Petitioner.

Muhammad Ijaz Lashari for Respondent.

Date of hearing: 16th July, 2002.

2003 M L D 405

[Lahore]

Before Pervez Ahmad, J

MUHAMMAD ABBAS and 7 others---Appellants

Versus

LIAQAT ALI and 9 others---Respondents

Civil Revision No. 1791-D of 1998, heard on 7th August, 2002.

Punjab Pre-emption Act (IX of 1991)---

----Ss.6(2), 13 & 35---Suit for pre-emption ---Making of Talb-i-Ishhad--­Zaroorat' and avoidance ofZarar'---Plaintiff not only had failed to prove making of Talb-i-Ishhad, but also could not prove Zaroorat and avoidance 'of Zarar---Apart from complying with provisions of S.35 of Punjab Pre-emption Act, 1991 with regard to making of Talb-i-Ishhad, it was also mandatory to have complied with completion of Zaroorat and avoidance of Zarar as provided under S.6(2) of Punjab Pre-emption Act, 1991---Section 6(2) of Punjab Pre-emption Act, 1991 though was declared un-Islamic subsequently, but at the time of filing of suit it was in force ---Pre-emptor in a suit for pre-emption was to prove his right of pre-emption not only at the time of sale of pre-empted property, but.at the time of institution of suit and also at the time of decision of suit--­Plaintiff in the present suit had not complied with provisions of S.6(2) of Punjab Pre-emption Act, 1991 when same was in force---Trial Court, in circumstances, was not justified to decree the suit---Appellate Court had rightly dismissed suit after setting aside judgment and decree -of Trial Court---In absence of any misreading or non-reading of evidence on record, judgment and decree passed by Appellate Court could not be interfered with, in revisional jurisdiction of High Court when same were not suffering from any illegality or material irregularity.

Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1; Falak Sher v. Muhammad Mumtaz and 2 others 1992 MLD 1879; Fazal Elahi v. District Judge Attock 1993 CLC 85 and Muhammad Saif v. Mirza Mushtaq 1994 MLD 308 ref.

Abdul Shakoor for Petitioners.

M. Javaid Rizvi for Respondents.

Date of hearing: 7th August, 2002.

2003 M L D 409

[Lahore]

Before Asif Saeed Khan Khosa, J

FARID and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.436-B of 2002, decided on 5th March, 2002.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.379/411---pre-arrest bail, confirmation of---Alleged theft had admittedly remained un-witnessed and no direct or indirect evidence was available on record pointing towards involvement of accused in the said theft---Recovery of stolen property was a private recovery and stolen material was not recovered from any specific person, but same had allegedly been recovered from a Dera belonging to another person---Record of investigation had shown that prosecution was not possessed of any material to show the basis on which accused were being suspected of committing alleged theft or in respect of their involvement regarding handling of stolen property--­Submission by accused that their implication in case was an outcome of mala fides on the part of complainant party as well as local police, could not be without any foundation or substance---Suspicion, howsoever, strong could never be a substitute for proof beyond reasonable doubt required in a criminal case---Ad interim pre-arrest bail already allowed to accused, was confirmed in circumstances.

Mian Fazal Rauf Joiya for Petitioner.

Amjad Mumtaz for the State.

2003 M L D 410

[Lahore]

Before Abdul Shakoor Paracha, J

ABDUL HAMEED KHAN and 2 others---Appellants

Versus

Mst. FATEH BIBI and 6 others--Respondents

Regular Second Appeal No. 10 of 2000, heard on 6th February, 2002.

Specific Relief Act (I of 1577)---

----S.12---Suit for specific performance of agreement of sale---Execution of agreement---Proof---Plaintiffs had claimed that defendants had agreed to sell their land to them vide agreement to sell, but despite receiving consideration amount, they failed to perform their part of agreement and instead had alienated suit-land to other persons by way of exchange--­Defendants resisted suit asserting that they had never executed any agreement to sell land with plaintiffs---Onus to prove agreement to sell was on plaintiffs, but no independent evidence had been produced by them to prove execution of agreement by defendants, one of whom was an illiterate lady and others were minors---No attempt was made by plaintiffs to get thumb-impression of defendant lady to be compared with her admitted thumb-impression---Plaintiffs, in circumstances, had failed to discharge onus of proving execution of agreement to sell in their favour---Courts below, in circumstances, had rightly dismissed suit holding that plaintiffs had failed to prove execution of agreement to sell in their favour with confidence-inspiring evidence-- -Concurrent findings of fact against plaintiffs could not be interfered with in second appeal which was maintainable only on question of law, but neither any question of law had been pointed out by plaintiffs nor it had been argued by them.

Ch. Anwar-ul-Haq Pannu for Appellants.

Malik Abdul Majeed Khan for Respondents.

Date of hearing: 6th February, 2002.

2003 M L D 414

[Lahore]

Before Ghulam Mahmood Qureshi, J

ALAMSHER and others---Petitioners

Versus

GHULAM HUSSAIN and others---Respondents

Civil Revision No. 1464-D. of 1991, decided on 8th August, 2001.

Punjab Pre-emption Act (I of 1913)---

----Ss.4 & 21---Suit for pre-emption ---Maintainability---Suit instituted by plaintiffs on 17-6-1985 was decreed by Trial Court on 13-7-1987 after framing issues and recording evidence of the parties---No decree in the case having been passed before crucial date i.e. 31-7-1986, as given by the Supreme Court in PLD 1988 SC, 287 judgment and decree passed by Trial Court after about one year from the crucial date were nullity in eye of law and same could not be sustained---Subsequent judgments or orders Passed by Appellate Court were also liable to be set aside as same were without jurisdiction and without lawful authority.

Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287 ref.

Khalid Ikram Khattana for Petitioners.

Zahid Hussain Khan for Respondents.

Date of hearing: 8th August, 2001.

2003 M L D 417

[Lahore]

Before Syed Jamshed Ali, J

GHULAM MUHAMMAD through his Legal Heirs---Petitioner

Versus

EHSAN-UL-HAQ and others---Respondents

Civil Revision No. 1448 of 1989, decided on 21st February, 2001.

Specific Relief Act (I of 1877)---

---Ss.42 & 54---West Pakistan Land Revenue Act (XVII of 1967), S.42---Land Record Manual, Chap. 7, para. 4---Suit for declaration and permanent injunction---Making of gift, proof of---Plaintiff had claimed title in respect of suit property contending that mutation of gift attested in favour of defendant in respect of suit property was based on fraud--­Plaintiff had contended that he did not make gift of suit land in favour of defendant, possession of suit land was not transferred to defendant and that he did not appear before Competent Authority and did not make any statement that he had made disputed gift---None of the witnesses produced by defendant had deposed about factum of gift other than mutation---Facts established from Patwari Halqa were that the mutation in question was neither entered nor attested in Revenue Estate--­Lambardar of village who was alive was not associated and none of the persons present at the time of attestation of mutation was examined despite both members of Union Council were alive---Mutation in question, in circumstances, was attested clearly in contravention of provisions contained in S.42 of West Pakistan Land Revenue Act, 1967---Merely because thumb-impression of maker of alleged gift-deed in favour of defendant appeared on the mutation sheet, was not sufficient to hold that gift was made by him---Even otherwise para. 4 of Chap. 7 of Land Record Manual, had prohibited taking thumb-impression of parties on a mutation sheet--­Courts below in circumstances, were not justified to dismiss the suit---Concurrent judgments and decrees of two Courts below were set aside and suit filed by plaintiff was decreed by High Court.

Gharib Shah and others v. Zaman Gul PLD 1984 SC 188 and Ghulam Hussain and others v. Imam Bakhsh and 9 others 1995 MLD 1165 ref.

Muhammad Farooq Qureshi Chishti for Petitioner.

Zahid Hussain Khan for Respondents.

Date of hearing: 21st February, 2001.

2003 M L D 422

[Lahore]

Before Ifikhar Hussain Chaudhry and Raja Muhammad Sabir, JJ

AHMAD BAKHSH---Petitioner

Versus

SHAUKAT ALI KHAN, SPECIAL JUDGE OF SPECIAL COURT UNDER

ANTI-TERRORISM ACT, MULTAN and another---Respondents

Writ Petition No. 1734 of 2002, heard on 22nd July, 2002.

Penal Code (XLV of 1860)---

----Ss.365-A, 468, 471, 419 & 420---Anti-Terrorism Act (XXVII of 1997), Ss.2(d)(n) & 23---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Jurisdiction of Anti-Terrorism Court ---Anti-­Terrorism Act, 1997 was a special law and provisions contained therein would override provisions of general law---Section 2(d) of Anti­Terrorism Act, 1997 defined the word "child" which related to an accused person who had hot attained the age of 18 years whereas S.2(n) defined kidnapping of any person for ransom without his consent or by force and unlawfully detaining him and demanding pecuniary or other benefit from him as a condition of his release---Definition of "child" as given in S.2(d) of the Anti-Terrorism Act, 1997 had no nexus with the age of the abductee---Complaint had been lodged against accused under S.365-A, C.P.C. which had sprovided death sentence or imprisonment for life---Allegation against the accused was that the abductee allegedly abducted by accused was of unsound mind---In view of said allegations and legislative intention incorporated in S.2(n) of Anti-Terrorism Act, 1997, Anti-Terrorism Court had exclusive jurisdiction to hold the trial of the accused.

Ch. Faqir Muhammad for Petitioner.

Muhammad Qasim Khan, A.A.-G. for Respondents.

Date of hearing: 22nd July, 2002.

2003 M L D 425

[Lahore]

Before Syed Jamshed Ali, J

Raja MAQBOOL AHMED --- Petitioner

Versus

EHSANULLAH---Respondent

Civil Revision No. 1510 of 1990, decided on 21st March, 2001.

Specific Relief Act (I of 1877)---

----S.8---Transfer of Property Act (IV of 1882), S.53-A---Suit for possession-- -Plaintiff had claimed that he had purchased suit property through registered sale-deed from vendor who was sole heir of the deceased original owner thereof---Defendant resisted suit contending that he had purchased suit property prior to plaintiff from original owner thereof---Suit was dismissed by Trial Court holding that plaintiff had failed to prove his title in respect of suit property, but on filing appeal against judgment of Trial Court, Appellate Court decreed the suit filed by plaintiff holding that vendor from whom plaintiff had purchased land was sole heir -of original owner and after death of original owner mutation of inheritance had already been entered in favour of vendor--­Undisputedly neither mutation of inheritance showed the vendor of suit property as sole heir of original owner nor any other evidence was on the record to establish that vendor had inherited estate of original owner as his sole heir---Mere entry of mutation of inheritance in favour of vendor did not establish that he was heir of original owner and after inheriting the same had sold to plaintiff---Unless title of vendor to suit property was established, he could not lawfully pass any title to the plaintiff--­Defendant had proved that he had purchased suit property through agreement of sale from original owner and mutation in that respect had also been entered in his favour---Said agreement had been ruled out from consideration by the Appellate Court on the ground that mere agreement would not create any right, title or interest in the property---Appellate Court while recording said conclusion had ignored provisions of S.53-A of Transfer of Property Act, 1882 from consideration according to which defendant could defend his possession under agreement of sale in his favour--In absence of any plea that plaintiff was a bona fide purchaser without notice, proviso to S.53-A of Transfer of Property Act, 1882 was also not applicable---High Court, set aside judgment and decree of Appellate Court and suit filed by plaintiff stood dismissed.

Zahid Hussain Khan for Petitioner.

Rafiq Javed Butt for Respondent.

Date of hearing: 21st March, 2001.

2003 M L D 428

[Lahore]

Before Abdul Shakoor Paracha, J

GHULAM HASSAN ---Petitioner

Versus

SHER MUHAMMAD KHAN and others---Respondents

Civil Revision No.2938 of 1994, decided on 30th May, 2001.

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

----S.12---Suit for specific performance of contract---Appellate Court while setting aside judgment of Trial Court had recorded finding that no money was paid by plaintiff to defendant in presence of witnesses--Plaintiff deposed that he purchased the suit land for Rs.3,500, but subsequently, he corrected himself by saying that consideration money was Rs.3,050---Statement of witness produced by plaintiff was quite different with regard to consideration money---Relief of specific performance being discretionary, same could not be granted to plaintiff facts and circumstances of the case.

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

--Art.79---Execution of document---Proof---Execution of a document had to be proved by examining scribe thereof and attesting witnesses.

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

----S.115---Revisional jurisdiction, exercise of---In absence of any misreading or non-reading of evidence on record by Court below, revision petition against judgment of Court below would have no force.

Syed Mamtaz Hussain Bukhari for Petitioner.

Zahid Hussain Khan for Respondents.

Date of hearing: 25th May, 2001.

2003 M L D 431

[Lahore]

Before M.A. Shahid Siddiqui, J

MUSTAFA TARIQ---Petitioner

Versus

PERVAIZ AHMAD and others---Respondents

Criminal Revision No.698 of 2001, decided on 16th May, 2002.

Penal Code (XLV of 1860)---

----S.302/34---Juvenile Justice System Ordinance (XXII of 2000), Ss.2(c), 4(3) & 7---Appreciation of evidence---Determination of age of the accused---Accused claiming to be a "child" within meaning of S.2(c) of Juvenile Justice System Ordinance, 2000 filed an application for determination of his age under S.7 of said Ordinance on the basis of School Leaving Certificate according to which accused was less than 18 years of age---Medical Board, on reference from Medical Superintendent for determination of age of accused, in its report opined that accused was above 17 years and below 21 years of age--On objection from complainant side matter was again referred to Board---Second report was not much different---Trial Court on basis of said reports concluded that the time of occurrence accused was less than 18 years of age and his case as separated from co-accused---Complainant filed revision against judgment of Trial Court in which it was contended that application filed by accused for determination of his age was belated---Validity---Juvenile justice System Ordinance, 2000 was retrospective in its application as appeared in plain reading of S.4(3) of that Ordinance---Provisions of S.7 of Juvenile Justice System Ordinance, 2000, could equally be invoked in cases which were registered prior to promulgation of said Ordinance--­Stage at which issue regarding age of accused was to be raised having not been specified in the statute, same could be raised at any stage and Court was bound to record its findings---Report of Medical Board being not conflicting, Trial Court had rightly separated the case of accused in view of age of accused being less than 18 years.

Abdul Nasir Jasra for Petitioner.

Hafiz Khalil Ahmad for Respondents.

2003 M L D 433

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. SUGHRAN BEGUM --- Petitioner

Versus

FAISALABAD DEVELOPMENT AUTHORITY through Director-General, Faisalabad and 2 others---Respondents

Civil Revision No.252-D of 2000, heard on 7th May, 2002.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration---Islamic Law---Inheritance---Plaintiff had claimed that suit plot was purchased by her from its allottee and had raised a double-storied building thereon and that defendant who was her son was in un-authorised occupation of suit property and the plaintiff was entitled to conferment of ownership rights in respect of suit property--­Defendant had claimed that he had purchased property in dispute from its allottee for a consideration and had obtained a general power-of-attorney in favour of his father and on basis of said power-at-attorney, his father got property transferred in favour of the defendant---Evidence on record had established that suit property formed estate of predecessor-in-interest of both plaintiff and defendant and other legal heirs of the deceased--­Predecessor in interest had left behind him plaintiff/his widow, three sons and two daughters including defendant---High Court set aside judgment and decree of Courts and plaintiff was granted a declaration that she being widow of predecessor-in-interest was entitled to 1/8th share in suit property while defendant was entitled to 14/64th share therein---Remaining two sons and daughters of deceased were held untitled respectively to 14/64th and 7/64th shares each son and each daughter.

Rana Abdur Rahim Khan for Petitioner.

Babar Sohail for Respondent No.4.

Nemo for the Remaining Respondents.

Date of hearing: 7th May, 2002.

2003 M L D 438

[Lahore]

Before Parvez Ahmad, J

Mst. BEVI and 8 others---Petitioners

Versus

MUHAMMAD DIN and 8 others---Respondents

Civil Revision No.225 of 1996, heard on 22nd August, 2002.

Specific Relief Act (I of 1877)----

----Ss.8, 42 & 54---Suit for possession, declaration and injunction---Suit was contested by defendants claiming that they were in possession of suit property as their predecessor-in-interest had purchased the same from predecessor-in-interest of plaintiffs in 1939 and for that purpose a mutation had been attested---Plaintiffs without producing any document in proof of their claim had verbally claimed that their deceased father was owner of suit property and that in consolidation proceedings, effected in the village his name was deleted from the Revenue Record--­Validity---Verbal evidence was of no value in presence of mutation which stood attested in favour of defendants with regard to suit property as having been purchased by them from predecessor-in-interest of plaintiffs---No evidence, verbal or documentary had been made available by plaintiffs to prove that mutation attested in favour of defendants was forged or fabricated---Trial Court was not justified to decree the suit--­Appellate Court had rightly set aside judgment and decree passed by Trial Court---Judgment of Appellate Court neither suffering from any illegally or material irregularity nor suffering from non-reading or misreading of evidence on record, could not be interfered with by High Court in exercise of its revisional jurisdiction.

Khan Muhammad for Petitioner No. 1.

Ch. Salamat Ali for Petitioner No.3.

Atta-ul-Mohsin for Respondents.

Date of hearing: 22nd August, 2002.

2003 M L D 440

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeem Ullah Khan Sherwani, JJ

ABBAS and 3-others --- Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.321 and Murder Reference No.70 of 1998, heard on 8th July, 2002.

Penal Code (XLV of 1860)---

----Ss.302(b)/449/149---Appreciation of evidence---Occurrence having taken place in house of complainant, three eye-witnesses produced by prosecution who were nearest relatives of deceased and complainant, were most natural witnesses---Matter was reported to police very promptly---Names of the accused, weapons with which they were armed and roles which they had played, were sufficiently mentioned in F.I.R.--­Site plan .showed that an electric bulb was there at the place of occurrence and parties were related to each other very closely---Six persons had been killed in the case and they all were very closely related and out of them two were minor sons of the deceased---No conflict existed between ocular account and medical evidence---Number of accused persons also coincided with number of injuries and empty cartridges recovered from the spot and recoveries of weapons were effected from accused person, but with on ulterior motive were not sent to Fire-Arms Expert for comparison---Motive also lay with three of the accused persons---No possibility of false implication of said three accused in the case existed---Case against said three accused having fully been proved they were rightly convicted and sentenced---Appeal to their extent was dismissed and murder reference against them was replied in the affirmative--- No role whatsoever either in F.I.R. or before Trial Court had been attributed to the fourth accused---Said accused was also found innocent not only by local police, but also by the Crime Branch--­No case having been made out against said accused, appeal to his extent was accepted and he was ordered to be released.

Awan Muhammad Hanif Khan for Appellants.

Ch. Imtiaz Ahmad for the State.

Sardar Muhammad Ramzan for the Complainant.

Date of hearing: 8th July, 2002.

2003 M L D 446

[Lahore]

Before Tanvir Bashir Ansari, J

ALLAH DITTA---Petitioner

Versus

QURBAN HUSSAIN ---Respondent

Civil Revision No. 145-D of 1996, heard on 23rd July, 2002.

Punjab Pre-emption Act (IX of 1991)---

----Ss.6 & 13---Suit for pre-emption ---Making of Talbs, proof of---Plaintiff halo, not mentioned any specific date when he acquired knowledge of sale in question---Notice of Talb-e-Ishhad given by plaintiff to defendant had itself mentioned that plaintiff came to know about sale in dispute one week prior to said notice of Talb-e-Ishhad whereas initial Talb-e-Muwathibat was to be made immediately after sale of suit-land ---Talb-e-Muwathibat and Talb-e-Ishhad which were mandatory preconditions in suit for pre-emption having not been made according to law, Trial Court rightly dismissed the suit---Appellate Court below set aside judgment and decree passed by Trial Court without evaluating evidence on record in its proper perspective and arrived at erroneous conclusion --Judgment and decree of appellate Court below were set aside in revision by High Court.

Rana Abdul Hameed Khan for Petitioner.

Ch. Muhammad Sadiq for Respondent.

Date of hearing: 23rd July, 2002.

2003 M L D 449

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL SALAM and 4 others---Petitioners

Versus

TARIQ MEHMOOD---Respondent

Civil Revision No. 1101-D of 1998, decided on 30th July, 2002.

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

----O.XXIII, R.3---Compromise---Compromise was arrived at between the parties pending revision and terms of agreement were accepted by them‑‑‑Terms of agreement being lawful, revision petition was disposed of in terms of said agreement.

S.M. Masood for Petitioners.

Ch. Shehbaz Khurshid for Respondent.

Date of hearing: 30th July, 2002.

2003 M L D 450

[Lahore]

Before Iftikhar Hussain Chaudhry, J

HAYAT ULLAH‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.45 of 2001, heard on 8th July, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑‑Deceased in injured position, was admitted to hospital where his statement was recorded by Police Officer before his death which was signed by him and that statement of deceased was treated as dying declaration by Trial Court‑‑‑Facts and circumstances of case had further corroborated narration contained in the paid dying declaration‑‑‑Statement of deceased not suffering from any infirmity could rightly be treated as dying declaration‑‑‑Narrative contained in F.I.R. was further supported by prosecution witnesses and medical evidence‑‑‑Accused who absconded after the occurrence, was apprehended after seven years of incident‑‑‑Such aspect of the matter lent further support to prosecution case against accused‑‑‑Court after assessment of the record, had concluded that prosecution had affirmatively: proved the case against the accused‑‑‑Accused, in circumstances, was rightly convicted by Trial Court.

G.H. Khan for Appellant.

Maqbool Ahmad Qureshi for the State.

Malik Noor Muhammad Awan for the Complainant.

Date of hearing: 8th July, 2002.

2003 M L D 453

[Lahore]

Before M.A. Shahid Siddiqui, J

ALLAH DITTA KHAN‑‑‑Appellant

Versus

NAJAM ULLAH alias NAJAM FASIH and 10 others‑‑‑Respondents

Regular Second Appeal No.69 of 1993, heard on 2nd July, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Specific performance of agreement of sale‑‑‑Defendants agreed to sell land in favour of plaintiff and plaintiff paid amount as earnest money at the time of execution of agreement and remaining amount was to be paid by plaintiff to defendant before specified date‑‑‑Plaintiff having failed to pay remaining amount according to the agreement, defendants sold land to other persons and amount received by defendants from plaintiff was paid back to the plaintiff‑‑‑Plaintiff could not deny the fact that he had been paid back earnest money through Bank draft‑‑­Plaintiff was rightly held not entitled to get specific performance of the contract.

Hafiz Khalil Ahmad for Appellant.

Sheikh Muzaffar Ahmad Zafar for Respondents.

Date of hearing: 2nd July, 2002.

2003 M L D 455

[Lahore]

Before Abdul Shakoor Paracha, J

ABDUL GHANI through Legal Heirs‑‑‑Petitioner

Versus

ABDUL GHAFOOR and another‑‑Respondents

Civil Revision No.966‑D of 1991, heard on 7th June 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.8‑‑‑Suit for possession‑‑‑Claim of plaintiffs was that the original owner of suit‑land having died issueless, his property was owned by his widow and that after death of the widow of original owner, plaintiff being legal representatives of the deceased widow were entitled to take possession of suit‑land on basis of title‑‑‑Suit was concurrently decreed by Trial Court and Appellate Court‑‑‑Validity‑‑‑Original owner of suit-­land though died issueless, but he had one brother and after the death of original owner half share of property of deceased would go to his widow and she after death of original owner having married with one of the plaintiffs, said half share would go to the plaintiff and other half would go to brother of deceased original owner‑‑‑Courts below in decreeing the suit‑land misinterpreted law and by so doing had committed material irregularity and illegality against defendant‑‑‑Concurrent judgment and decree of Courts below were set aside by High Court in exercise of its revisional jurisdiction.

Syed Mohsin Raza Bukhari and 4 others v. Syed Azra Zeneb Bukhari 1993 CLC 31 ref.

S.M. Masood for Petitioners.

Ch. Shaukat Ali Saqib for Respondents.

Date of hearing: 7th June, 2002.

2003 M L D 459

[Lahore]

Before Raja Muhammad Sabir and M. Naeem Ullah Khan Sherwani, JJ

ABDUL SATTAR LALIKA‑‑‑Appellant

Versus

Ch. SAJJAD AHMED and another‑‑‑Respondent

Election Appeal No.215‑R of 2002, heard on 13th September, 2002.

Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑‑S.99(IA)(cc) [as amended by Representation of People (Amendment) Ordinance (XXXVI of 2002)]‑‑‑Rejection of nomination papers on ground that degree issued by "Canadian School of Management" produced by the candidate was not recognized by the University Grant Commission of Pakistan‑‑‑Graduate of a foreign country, whose degree was not recognized by University Grants Commission of Pakistan, could not be ousted from contesting election‑‑‑Election Tribunal had to satisfy itself whether degree was genuine or was a forged one‑‑‑If documents produced before Election Tribunal prima facie had shown that candidate was a graduate, he could not be ousted from election merely for want of recognition of his degree by University Grants Commission‑‑‑Penal provisions which entailed consequences of ouster of candidate from contesting electron, had to be liberally construed, had to be inclusive and Court had to lean in favour of the subject‑‑‑Candidate had shown original certificates of Cambridge University, FSC, and the degree in Business Administration Canadian School of Management‑‑‑Candidate had also produced BBA Programmes of his semesters, which he completed in 28 subjects‑‑‑In presence of said certificates, it could prima facie be believed that candidate was a Graduate in Business Administration from Canadian School of Management‑‑‑Order of Election Tribunal rejecting nomination papers of candidate on ground that he was not a Graduate, was set aside with direction that Returning Officer would publish name of candidate in list of candidates.

Muhammad Ahsan Bhoon for Appellant.

Ch. Muhammad Ashraf Wahla for Respondent No. 1.

Hafiz Abdul Rehman Ansari for Respondent No.2.

Date of hearing: 13th September, 2002.

2003 M L D 463

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman and Bashir A. Mujahid, JJ

MUHAMMAD ISHAQUE‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Crime Appeal No.1022, 1023 and 1050 and Murder Reference No. 50‑T of 2001, heard on 29th October, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Appreciation of evidence ‑‑‑F.I.R. of the occurrence had been properly recorded wherein the story had been narrated in a natural manner‑‑‑Both the accused had not been nominated in the F.I. R. but their description had been given there as they were visible to the complainant‑‑‑Non‑examination by the prosecution of two persons mentioned in the F.I.R. as eye‑witnesses was of no consequence as both of them were close relatives of one of the accused and had been given up having been won over‑‑‑No adverse inference could be drawn against the prosecution as the evidence of both these witnesses was only in support of the complainant who had not nominated the accused to the F.I.R.‑‑­Eye‑witnesses who had rendered ocular account to the Court were independent and impartial witnesses who had no motive to falsely implicate the accused‑‑‑Statements of these witnesses under S.161, Cr.P.C. had been recorded on the same day and they had sufficiently explained their presence at the spot which was natural and believable‑‑­Testimony of these two witnesses had been further corroborated by the Wajatakar witness who had seen the accused near the place of occurrence Just after the commission of crime‑‑‑Said prosecution witnesses had stood the test of lengthy cross‑examination and nothing had been brought on record to discard their testimony‑‑‑Ocular evidence against the accused had been corroborated by recovery of weapon of offence from one of the accused and a positive report of Forensic Science Laboratory; recovery of the identity card of the deceased; looted amount of Rs.2,000 and a note book belonging to the deceased‑‑‑Accused, from whom these recoveries had been effected was resident of the same village where occurrence had taken place and was also related to the deceased and the complainant, therefore, the complainant had no reason to falsely implicate him‑‑‑Defence witness had never joined the investigation, therefore, his statement was of no use to the accused‑‑‑Accused had tailed to examine the given up prosecution witnesses in their defence to prove that they were innocent‑‑‑Accused had never objected to the investigation or moved higher police officials‑‑‑No question regarding non‑recovery of crime‑empty from the spot or tampering with the sealed parcel had been put to the Investigating Officer or to the concerned witnesses‑‑‑Prosecution evidence had not been relied upon qua two accused persons who had already been acquitted by the Trial Court‑‑­High Court maintained the conviction and sentence passed against the accused person from whom recoveries had been effected and who had caused a single fire arm wound to the deceased while the other accused was acquitted giving him benefit of doubt.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑‑S.302/34‑‑‑Appreciation of evidence‑‑‑Conduct of the eye­witnesses‑‑‑Conduct depends upon each person how he reacts to an incident at a particular time‑‑‑Conduct of the eye‑witnesses who had thought it proper not to raise hue and cry and kept mum to avoid any kind of complication and after coming to know about the victim had informed the complainant, could not be taken as unnatural or unusual in prevailing circumstances of the society as people do not come forward to depose against the criminals.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Appreciation of evidence‑‑‑Site plan‑‑‑Evidentiary value‑‑­Site plan cannot contradict ocular account and it is not a substantive piece of evidence‑‑‑Contention of the accused that the names, location of the prosecution witnesses and of the accused had not been mentioned in the site plan, prepared six days' after the occurrence, which showed that the accused were not known till then and the witnesses had been subsequently introduced was repelled in the circumstances.

PLJ 1996 Cr. Cases Quetta 527 and 1998 SCMR 1823 ref.

M. Akram Qureshi for Appellant.

S. Zahid Hussain Bokhari for the Complainant.

Malik Mubarak for the State.

Date of hearing: 29th October, 2002.

2003 M L D 473

[Lahore]

Before Muhammad Sair Ali, J

ABBAS ALI and 5 others‑‑‑ Petitioners

Versus

MAQSOOD AHMAD and 6 others‑‑‑Respondents

Civil Revision No.455‑D of 1997, heard on 4th July, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss.42 & 54‑‑‑Suit for declaration and perpetual injunction‑‑‑Plaintiffs had claimed ownership of suit property on ground that their predecessor­-in‑interest had obtained the same in exchange with land of predecessor-­in‑interest of defendants which was effected on basis of oral agreement during consolidation proceedings‑‑‑Plaintiffs had alleged that suit land was wrongly mutated by defendants in their names in connivance with Revenue Consolidation Staff‑‑‑Defendants contested claim of plaintiffs‑‑­Trial Court dismissed suit holding the same to be time‑barred and that plaintiffs were not entitled to suit land, but Appellate Court reversed findings of Trial Court and decreed the suit‑‑‑Validity‑‑‑Plaintiffs and their witnesses had undisputedly proved that suit land was acquired by their predecessor‑in‑interest in exchange from predecessor‑in‑interest of defendants‑‑‑Even witnesses produced by defendants had admitted in cross‑examination, the factum of exchange of land between predecessors­-in‑interest of parties‑‑‑Statements of witnesses with regard to exchange of suit land and its continued possession since time of consolidation about 16/17 years prior to suit by plaintiffs, were consistent, credible, confidence‑inspiring and without any ambiguity, confusion or contradictions‑‑‑Even in cross‑examination statements of witnesses, in support of contents of plaint were unshaken‑‑‑Defendants were unable to get any support to their case through cross‑examination of witnesses of plaintiff‑‑‑No infirmity was found, in circumstances, in judgment and decree passed by Appellate Court below in decreeing suit of plaintiffs.

Taki Ahmed Khan for Petitioners.

Ch. Mumtaz Ahmed for Respondents.

Date of hearing: 4th July, 2002.

2003 M L D 477

[Lahore]

Before Parvez Ahmed, J

ABDUL LATIF‑‑‑Petitioner

Versus

ABDUL KARIM and another‑‑‑Respondents

Civil Revision No. 1123 of 1996, heard on 21st March, 2002.

Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss.6 & 13‑‑‑Suit for pre‑emption ‑‑‑Making of Talbs‑‑‑Proof of‑‑­Record had established that `Talb‑i‑Ishhad' as provided under S.13(3) of Punjab Pre‑emption Act, 1991 was neither made by plaintiffs nor alleged to have been made in their plaint‑ ‑Making of Talbs by plaintiffs having not been proved, suit for possession through pre‑emption was liable to be dismissed on such consideration alone.

Abdul Ghaffar and 2 others v. Malik Muhammad 1993 CLC 2437 ref.

Aurangzeb Mirza for Petitioner.

Nemo for Respondents.

Date of hearing: 21st March, 2002.

2003 M L D 484

[Lahore]

Before Syed Jamshed Ali, J

DILMEER‑‑‑Petitioner

Versus

RAJAB ALI and others‑‑‑Respondents

Civil Revision No. 1100‑D of 1999, decided on 3rd April, 2000.

(a) Islamic Law‑‑‑

‑‑‑‑Inheritance‑‑‑Daughter of predeceased son of original owner was only entitled to her Qur'anic share from estate of her deceased father‑‑‑Other successors‑in‑interest of original owner would get their shares according to principles of inheritance.

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

‑‑‑‑S.12‑‑‑Suit for possession of specific Khasra number against co­-sharer‑‑‑Trial Court could not pass a decree for specific Khasra number from joint Khata, unless joint Khata was partitioned‑‑‑Suit for possession against a co‑sharer was not maintainable‑‑‑Every co‑sharer, however, would have a right to seek partition in accordance with law.

Mst. Zainab v. Kamal Khan alias Kamla PLD 1990 SC 1051 ref.

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

‑‑‑‑O.XX, R.6‑‑‑Decree must agree with judgment.

Altaf‑ur‑Rehman for Petitioner.

Muhammad Nazir Janjua for Respondents.

Date of hearing: 3rd April, 2000.

2003 M L D 486

[Lahore]

Before Khawaja Muhammad Sharif, J

MURAD SHAH‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.6131‑B of 2002, decided on 16th September, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), S.302(b)‑‑‑Bail, grant of‑‑‑Further inquiry ‑‑‑F.I.R. showed that the accused was armed with .12 bore gun and he fired a shot which hit one of the deceased on his left arm, but according to post‑mortem report of said deceased no injury whatsoever was, found on left arm of deceased with fire‑arm‑‑‑Accused was found innocent by two Investigating Officers including Assistant Superintendent of Police‑‑‑No weapon of offence was recovered from the accused‑‑‑Bail to accused was his right as his case was covered by subsection (2) of S.497, Cr.P.C. which could not be held as punishment­‑‑Bail was granted to accused, in circumstances.

1978 SCMR 285 and 2000 PCr.LJ 2065 ref.

M. Asghar Khan Rokhari for Petitioner.

Sardar Munir Ahmad Gill for the Complainant.

Saif Ullah Khalid for the State.

2003 M L D 490

[Lahore]

Before Maulvi Anwarul Haq, J

NAZIR AHMAD and others‑‑‑Petitioners

Versus

M.R. KHALID‑‑‑Respondent

Civil Revision No.2081 of 1990, decided on 3rd April, 2001.

Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S.19‑‑‑Private partition of land‑‑‑Bar on partition‑‑‑Land in dispute was jointly purchased by parties, but subsequently a private partition was effected and parties after partition took over the possession of their respective shares and started cultivating their respective lands‑‑­Subsequently one of the parties challenged private partition on the ground that said partition was hit by S.19 of Colonization of Government Lands (Punjab) Act, 1912‑‑‑Validity‑‑‑No restriction spelt out from S.19 of Colonization of Government Lands (Punjab) Act, 1912 so far as private partition of jointly owned land was concerned.

Zahid Hussain Khan for Petitioners.

Syed Zafar Ali Shah for Respondent.

Date of hearing: 3rd April, 2001.

2003 M L D 494

[Lahore]

Before Khawaja Muhammad Sharif, J

DILAWAR KHAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1807 of 2001, heard on 20th August, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)/34‑‑‑Appreciation of evidence‑‑‑No previous background of enmity existed between the parties‑‑‑Occurrence had taken place at the spur of moment and no undue advantage had been taken by the accused‑‑‑Accused was not armed with any weapon at the time of occurrence and accused gave fist and kick blows on the person of deceased‑‑‑Case being not that of falling under S.302(b), P.P.C., but under S.302(c), P.P.C. conviction and sentence of accused was converted from S.302(b), P.P.C. to S.302(c), P.P.C. and he was awarded 14 years' imprisonment accordingly.

Irshad Ahmed Qureshi for Appellant.

Miss Nausheen Taskeen for the State.

Date of hearing: 20th August, 2002.

2003 M L D 497

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL WASIH‑‑‑Petitioner

Versus

BASHIR AHMAD and others‑‑‑Respondents

Civil Revision No.915 of 1990, decided on 19th April, 2001.

Specific Relief Act (I of 1877)‑‑‑‑

‑‑‑‑S.8‑‑‑Suit for possession‑‑‑Suit land owned by Government was purchased by plaintiff for consideration‑‑‑Trial Court in presence of the proof had rightly found the plaintiff to be owner of suit land and entitled to possession thereof‑‑‑Plaintiff having proved his title in respect of suit land, was always entitled to fall back upon his title and there was no bar under any law against grant of a decree for possession in favour of plaintiff who had proved his title against a person who had no title to the suit land‑‑‑Court was duty bound to see that unless some insurmountable hurdle was there, holder of lawful title in 'property, must get its possession from person occupying the same without any title‑‑‑Appellate Court having acted with material irregularity in exercise of its jurisdiction by refusing grant of relief of possession to plaintiff, its judgment was set aside by High Court and that of Trial Court decreeing suit was restored.

Khan Zahid Hussain Khan for Petitioner.

S.M. Masood for Respondent No.2.

Nemo for the Remaining Respondents.

Date of hearing: 19th April, 2001.

2003 M L D 499

[Lahore]

Before Iftikhar Hussain Chaudhry, J

HAROON GUL alias JAMSHED GUL‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.419 of 2001, heard on 12th July, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑‑Prosecution could not prove motive of occurrence‑‑‑No dispute existed between the parties and there was no previous enmity between them‑‑‑Background in which occurrence had taken place appeared to be somewhat different from the one stated by the prosecution‑‑‑Accused had taken a specific stand, but his stand was not supported by any witness‑‑‑Nobody had come forward to testify in support of the plea of accused that deceased had made any disrespectful utterance qua Holy Prophet (p.b.u.h.)‑‑‑Accused could not prove that offence was committed by him on account of sudden and grave provocation‑‑‑Accused who had taken life of a person on emotional thinking, was rightly convicted for offence under S.302(b), P.P.C. and sentence awarded to him under circumstances, was appropriate.

Syed Ehsan Qadir Shah for Appellant.

Waheed‑ud‑Din Parvez for the State.

Date of hearing: 12th July, 2002.

2003 M L D 502

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

GHULAM RASOOL‑‑‑Petitioner

Versus

GHULAM RASUL and 17 others‑ ‑‑Respondents

Civil Revision No.2579 of 1994, decided, on 19th December, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.42‑‑‑Suit for declaration with consequential relief on the basis that plaintiff was owner in possession as co‑sharer of the suit‑land without partition and other co‑sharers were not entitled to interfere in his possession over the suit‑land and that the sale of shares by other co­-sharers in favour of the defendant was in excess of their shares‑‑­validity‑‑‑Both the Courts below had given issue-wise findings that the plaintiff was in possession of specified land as co‑sharer and owner‑‑‑Plaintiff had failed to prove that other co‑sharers had sold land to the defendant in excess of their shares‑‑‑Both the Courts below after discussing the evidence had come to the conclusion that the plaintiff could be declared as co‑sharer in respect of specified portion of land as joint Khata had never been partitioned‑‑‑No declaration, in circumstances, could be made against the co‑sharers and as tire Khata had never been partitioned, every co‑sharer shall be considered as owner in possession of the suit property‑‑‑Concurrent findings based on facts and evidence on record by both the Courts were not interfered with by the High Court

Walayat Begum and others v. Wazir Begum and others 1992 CLC 553: Amir Slab and 2 others v. Government of N‑.W.F.P. through Home Secretary at Peshawar and 4 others 1994 SCMR 1778 and Haji Muhammad Din v. Maid: Muhammad Abdullah PLD 1994 SC 291 ref.

Muhammad Iqbal for Petitioner.

Tariq Pervaiz Malik for Respondents.

Date of hearing: 11th December, 2002.

2003 M L D 507

[Lahore]

Before Muhammad Akhtar Shabbir, J

Dr. ZAHID HUSSAIN CHOHAN‑‑‑Petitioner

Versus

ISLAMIA UNIVERSITY, BAHAWALPUR and others‑‑‑Respondents

Writ Petitions Nos. 64, 2726, 2878, 6005, 6006 of 1997: 5712 of 1999; 4262, 4875 of 2000; 1386, 2703, 3346, 3502, 4238 and 4262 of 2001, decided on 4th December, 2001.

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

‑‑‑‑Arts.50 & 70‑‑‑Parliament as law‑making Authority‑‑‑Parliament is the taw‑making Authority and passes Acts and empowers Government under the relevant Act to make Rules for carrying on business‑‑‑A statute is formal expression in writing of the will of legislative organ in a State‑‑‑Statute is a declaration of law as it exists or as it would be from the time at which such statute was to take effect and it is usually called an Act of the Legislature and it would express collective will of that body‑‑‑Statute is the highest Constitutional formulation of law, the means by which supreme Legislature, after fullest deliberation, expresses its final will‑‑‑'Enactment' could mean something other than Act of Parliament, but an Act would mean an Act of Parliament‑‑‑'Enactment' would not mean the same thing as 'Act'‑‑‑'Act' means whole Act, whereas section or part of section in any Act could be an enactment.

University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali 1992 SCMR 1093; Khalid Hussain v. The Chancellor (Governor of Punjab) and others NLR 1995 CLJ 219; M. Amin Farooq v. Vice-­Chancellor, University of Engineering and technology Lahore and another 1993 CLC 474 Lah. Dr. M. Afzal Beg v. University of Punjab and others 1999 PLC (C.S.) 60; Ijaz Hussain Suleri v The Registrar and another 1999 SCMR 2381; Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194; Chairman, WAPDA and 2 others v. Syed Jamil Ahmad 1993 SCMR 346; Muhammad Umar Malik v. The Muslim Commercial Bank Ltd through its President, Karachi and 2 others 1995 SCMR 453: Dr. Iqtidar Hussain Zaidi v. University of the Punjab PLD 1978 Lah. 298; Muhammad Jawad Ali v. Vice‑Chancellor, Islamia University, Bahawalpur, and others 1998 PLC (C.S.) 549; S. Irshad‑ur‑Rehman v. Government of Pakistan through Chairman, Central Board of Revenue, Islamabad and 3 others 1993 PLC (C.S.) 39; DFO South Kheri and others v. Ram Sonehi Singh AIR 1973 SC 205; Mrs. Anisa Rehman v. PIAC and another 1994 SCMR 2232; Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94; Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Faruki PLD 1969 SC 407; Muhammad Nawaz v. Federation of Pakistan and 61 others 1992 SCMR 1420 and Chairman, Central Board of Revenue, Islamabad and 3 others v. Messrs Pak‑Saudi Fertilizer Ltd. and another 2001 SCMR 777 ref.

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

‑‑‑‑Arts. 50, 70, 89 & 128‑‑‑'Statute Law', defined‑‑‑Powers of President and Governor to promulgate Ordinance‑‑‑ Framing of Rules‑‑­'Statute Law' was defined as the will of the nation, expressed by Legislature, expounded by the Court of justice‑‑‑If Parliament was not in session, then laws were to be enforced through Ordinances issued by President or the Governor expressing will of Nation as the case may be‑‑‑Act passed by the Parliament and Ordinance issued by President or the Governor, expressing will of Nation, would be called 'Statutory Law'‑‑‑Rules framed under powers conferred by an Act were integral part of Act and those Rules would be called 'Statutory Rules' and those would be held to be part of parent Act‑‑‑Rules or Bye‑Laws made under statutes or Act could not override provisions of other statutes‑‑ ‑Neither Rules could control the construction to be placed on provisions of the Act nor they could enlarge the meaning of section of the Act‑‑‑Rules were to be framed under the Act in aid to construction of ambiguous statutes‑‑‑Rules under the Act would be made by Authority empowered under the Act to frame Rules or By‑Laws and no other Authority who was not empowered under the Act could make the Rules‑‑‑Rule‑making Body also could not frame Rules in conflict with or derogating from substantive provisions of law or statute under which Rules were framed.

(c) Interpretation of statutes‑‑‑

‑‑‑‑"Statutory instrument" and "Rules", connotation and scope‑‑­"Statutory instrument" would mean a document which was a legislative (as opposed to executive) made by a Rule‑making Authority in exercise of its statutory powers‑‑‑'Rule' was that which was prescribed or laid down as a guide to conduct; that which was settled by Authority or custom; a regulation; a prescription; a minor law; a uniform course of things‑‑‑'Rule' was not a properly original process, but was auxiliary and for facilitation of jurisdiction already acquired, although statute sometimes authorised its use as original process‑‑‑" Statutory Rules" would stand on different footing‑‑‑ Parliament or Legislature instead of incorporating Rules in statute itself ordinarily authorised the Government to carry out the details of policy laid down by the Legislature by framing Rules under the Statute and once the Rules were framed they were incorporated in the statute itself and part of statute and it must be governed by same Rules as Statute itself.

(d) Interpretation of statutes‑‑‑

‑‑‑‑"Bye‑Laws", framing and application of‑‑‑Where statutory corporation, body or organization would enact laws, rules of their own, they were called "Bye‑Laws "‑‑‑Term "Bye‑Laws" would apply to local laws or regulations made by public bodies of municipal kind or concerned with local Government or by Corporations, Organizations, Universities or Societies formed for commercial or other purposes including gas, water, railway companies, educational institutions, trade unions etc. and these bye‑laws must be made, sanctioned and published in the manner prescribed by statute which authorised them‑‑‑Bye‑Laws (Rules and Regulations) were framed by Corporations or Statutory Bodies for carrying out their purpose or administration‑‑‑All bye‑laws made by subordinate Authorities were subject to system of check ‑‑‑Bye-­Laws were required approval of different concerned Government Departments‑‑‑Rules or bye‑laws not framed by Government or framed by Corporation, if were not approved by Government, would be called 'non‑statutory' rules.

Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194 ref.

(e) Islamia University Bahawalpur Employees (Efficiency and Discipline) Statutes, 1976‑‑‑

‑‑‑‑Islamia University Bahawalpur Teachers (Appointment and Special Conditions of Service) Statutes, 1977‑‑‑Islamia University Bahawalpur Officer (Appointment) Statutes, 1977‑‑‑Islamia University Bahawaipur Employees (Pension) Statutes, 1979‑‑‑Islamia University of Bahawalpur Act (IV of 1975), Ss.23, 30, 31 & 33‑‑‑Constitution of Pakistan (1973), Arts. 199 & 105‑‑‑Constitutional petition ‑‑‑Maintainability‑‑‑Non­statutory rules‑‑‑Avoidance of such rules‑‑‑Judicial review ‑‑‑Scope‑‑­Power of Government to make Statutes, Regulations or Rules under Islamia University of Bahawalpur Act, 1975‑‑‑Islamia University of Bahawalpur Act, 1975 had not empowered Government to make Statutes, Regulations or Rules under the said Act, but that power had been conferred on the Authorities of University and Act had not even directed the University Authorities to seek sanction of Rules from the Government‑‑‑Governor who was the Chancellor of Islamia University, could make Statutes and the power of approval of Regulations prepared by Academic Council had been conferred on Syndicate and power of consideration of drafts of statutes proposed by Syndicate had been conferred upon the Senate of the University and after consideration of Senate the draft of statutes, it would be forwarded to Chancellor and would not be effective until it had been approved by him‑‑‑Statute, Regulations and Rules made by Islamia University, Bahawalpur under Islamia University Bahawalpur Act, 1975, in circumstances were non­-statutory in nature‑‑‑Governor would exercise powers and duties that Chancellor would exercise or perform under Islamia University Bahawalpur Act, 1975 and those were not any powers or duties conferred on Governor qua Governor or of a capacity which he occupied by virtue of his office as Governor‑‑ ‑Powers of Chancellor under Islamia University Bahawalpur Act, 1975, in circumstances were not powers and duties of office of Governor and consequently not protected under Art. 105 of Constitution of Pakistan (1973)‑‑‑Islamia University Bahawalpur Employees (Efficiency and Discipline) Statutes; 1976, Islamia University Bahawalpur Teachers (Appointment and Special Conditions of Service) Statutes, 1977; Islmia University, Bahawalpur Officers (Appointment) Statutes, 1977; Islamia University Bahawalpur Employees (Pension) Statutes, 1979 being not statutory in nature, any avoidance of said Statutes; Regulations' or Rules would not attract Constitutional jurisdiction of High Court.

University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali 1992 SCMR 1093; Ijaz Hussain Suleri v. The Registrar and another 1999 SCMR 2381; Chairman, WAPDA and 2 others v. Syed Jamil Ahmad 1993 SCMR 346; Dr. M. Afzal Beg v. University of Punjab and others 1999 PLC (C.S.) 60; Muhammad Umar Malik v. The Muslim Commercial Bank Ltd. through its President, Karachi and 2 others 1995 SCMR 453; M. Amin Farooq v. Vice‑Chancellor, University of Engineering & Technology, Lahore and another 1993 CLC 474 and Khalid Hussain v. The Chancellor (Governor of Punjab) and others NLR 1995 CU 219 ref.

(f) Rules of Procedure for the Meeting of Syndicate of Islamia University Bahawalpur‑‑‑

‑‑‑‑R.13‑‑‑Powers of Vice‑Chancellor‑‑‑Scope‑‑‑When meeting of Syndicate could not be convened, opinion of members of Syndicate could be obtained by Vice‑Chancellor by circulating relevant papers to members of Syndicate and if more than 50 percent. of members expressed their opinion in its favour, it would be, presumed that Syndicate had approved matter referred to members of Syndicate.

(g) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court-‑Scope‑‑‑Natural justice‑‑ Principle of‑‑‑Applicability and violation of principles—­Anybody or Corporation, if had violated principles of natural justice, its action would be without lawful authority and of no legal effect‑‑­Principle of natural justice would be applicable to judicial as well as to non‑judicial proceedings and it would be read into every statute as its part even if right of hearing had not been expressly provided therein and violation of maxim 'Audi alteram partem' could be equated with violation of provision of law warranting pressing into service the Constitutional jurisdiction‑‑‑Mere absence of a provision in the statutes as to notice could not override principle of natural justice that an order affecting rights of a party could not be passed without an opportunity of hearing and where giving a notice was necessary condition for proper exercise of jurisdiction, then failure to comply with that requirement would render order void and entire proceedings which followed also would become illegal.

Mst. Afroz Jehan v. Mst. Moor Jehan and others 1988 CLC 1318; Mesrss Capital Sports Corporation, Sialkot v. Government of Pakistan 1989 MLD 999; Mst. Maryam Younus v. Director of Education Cantonment, G.H.Q., Rawalpindi and others PLD 1990 SC 666 and Mrs. Anisa Rehman v. I.I. A.C. and another 1994 SCMR 2232 ref.

(h) Locus poenitentiae, principle of‑‑‑

‑‑‑‑Applicability of rule of locus poenitentiae‑‑‑Letters of appointment were issued in favour of appointees on 19‑1‑1997 and in compliance with said letters appointees joined their duties in their respective departments‑‑‑Orders of appointment which had taken effect, had created valuable right in favour of appointees in whose favour it was passed‑‑­Rule of locus poenitentiae would come into play in favour of appointees and Competent Authority who had passed said order could not recall same.

Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Muhammad Nawaz v. Federation of Pakistan and 61 others 1992 SCMR 1420; Messrs Arfat Woollen Mills Limited v. The Income Tax Officer, Companies Circle C‑I, Karachi 1990 SCMR 697 and Messrs Central Insurance Co. and others v. The Central Board of Revenue, Islamabad and others 1993 SCMR 1232 ref.

(i) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Natural justice, principle of‑‑‑Applicability‑‑‑Where order passed by Authority was in violation of principles of natural justice, Constitutional petition would be competent even if violation of non‑statutory rules had been made by the said Competent Authority.

(j) Rules of Procedure for Meeting of Syndicate of Islamia University Bahawalpur‑‑‑

‑‑‑‑Rr.11 & 13‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Powers of review, of University Syndicate‑‑­Scope‑‑‑Re‑opening of case by Syndicate would mean the review of earlier orders and Syndicate was not competent to review the orders and where order passed by Syndicate was without jurisdiction and unlawful, there was no bar to file Constitutional petition.

Chairman, Central Board of Revenue, Islamabad and 3 others v. Messrs Pak‑Saudi Fertilizer Ltd. and another 2001 SCMR 777 ref.

(k) Islamia University Bahawalpur Teachers (Appointment and Special Conditions of Service) Statutes, 1977‑‑‑

‑‑‑‑Statute No. 11‑‑‑Power of relaxation of statute by the Syndicate‑‑­Power of relaxation had been conferred on Syndicate as provided in Statute No. 11 of Islamia University Bahawalpur Teachers (Appointment and Special Conditions of Service) Statutes, 1977.

Aejaz Ahmad Ansari, Aejaz Ahmad Chaudhary, Zafar Ali Hashmi, Bilal Ahmad Qazi and M.M.A. Pirzada for Petitioner.

M.M. Bhatti and Masood Ashraf Shaikh for Respondents.

Date of hearing: 14th November, 2001.

2003 M L D 529

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD AYYUB‑‑‑Petitioner

Versus

SUPERINTENDENT OF POLICE, PAKPATTAN and 4 others‑‑‑Respondents

Writ Petition No.6598 of 2002, decided on 13th August, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑Art.199‑‑‑Constitutional petition‑‑‑S.H.O. as per request of the petitioner was directed to record his version in the case already registered with the police station and then proved with the investigation fairly and justly in accordance with law‑‑‑Superintendent of Police concerned was also directed to ensure fair treatment to the parties in the investigation‑‑‑Petition was disposed of accordingly.

Mian Afzal Rauf Joiya for Petitioner.

2003 M L D 535

[Lahore]

Before Maulvi Anwarul Haq and Parvez Ahmad, JJ

Mst. NASEEM AKHTAR‑‑‑Appellant

Versus

MUHAMMAD TARIQ NAVEED and 2 others‑‑‑Respondents

Regular First Appeal No.287 of 1998, heard on 4th July, 2002.

Specific Relief Act (I of 1877)‑‑‑‑

‑‑‑‑S.12‑‑‑Civil Procedure Code (V of 1908), S.96‑‑‑Specific performance of agreement to sell‑‑‑Relief under S.12 of Specific Relief Act, 1877‑‑‑Scope‑‑‑Execution of the agreement in favour of plaintiff‑‑­Proof‑‑‑Plaintiff claimed that father of defendants being owner of the suit property agreed to sell the same for a sum of Rs.500,000 out of which a sum of Rs.450,000 was received by the owner as earnest money and agreement to sell was executed in her favour by the owner‑‑‑Suit property was in possession of the plaintiff as she was running a school in the property‑‑‑After the death of the owner, the defendants refused to execute the sale‑deed in favour of the plaintiff‑‑‑Plaintiff failed to prove execution of the agreement as there was discrepancies in the depositions made by the plaintiff and her witnesses‑‑‑No explanation was brought on record as to what prevented the execution and registration of a formal document of sale when almost 90% of the price had been paid by way of earnest money‑‑‑Plaintiff failed to prove on record as to why the deceased sold the house to her‑‑‑Neither in the plaint nor in the witness ­box there was a plea or deposition as to how the process was initiated and the property was offered for sale‑‑Entire scenario presented by the plaintiff's witnesses in witness‑box being unnatural and not confidence ­inspiring, Trial Court dismissed the suit‑‑‑Validity‑‑‑Suit for specific­performance and relief was primarily discretionary and not to be granted merely because it was lawful to do so‑‑‑By applying the rule of prudence which was the basic rule underlying the law of evidence as also the rule of probability, High Court was not satisfied that a transaction as alleged by the plaintiff and her witnesses did take place‑‑‑High Court declined to interfere with the judgment and decree passed by the Trial Court in circumstances.

Rab Nawaz and others v. Mustaqeem Khan and others 1999 SCMR 1362 fol.

Zakaur Rehman Awan for Appellant.

Muhammad Nasarullah Warraich for Respondent.

Date of hearing: 4th July, 2002.

2003 M L D 547

[Lahore]

Before Mrs. Nasira Iqbal, J

MURID HUSSAIN alias MURAD KHAN‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, CHINIOT and 2 others‑‑‑Respondents

Writ Petition No. 17110 of 2001, decided on 26th June, 2002.

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

‑‑‑‑Ss.5, 7, 14, 17 & 21‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Suit for recovery of dowry‑‑‑Appeal against judgment of Family Court‑‑‑Appointment of referee‑‑‑Suit having been decreed by Family Court, defendant husband filed appeal against the same‑‑‑During pendency of appeal, a referee was appointed with consent of the parties and it was agreed that appeal against judgment and decree of Family Court be decided on statement of referee to be made on basis of oath on Holy Qur'an‑‑‑About seven weeks after appointment, referee appeared in Court and made .his statement on oath regarding list of dowry articles which were with defendant‑husband‑‑‑Defendant filed application for cancellation of appointment of referee after statement of referee had been recorded and stated that case be decided on merits, which application was rejected by Appellate Court and appeal was decided on the basis of statement of referee‑‑‑Defendant who did not raise any objection within period of about seven weeks with regard to appointment of referee made with consent of parties, could not prove that referee so appointed was partial to the plaintiff‑‑‑Defendant having agreed to be bound by statement of referee and also having co‑operated 41 that behalf till statement of referee was against him, he could not be allowed to resile subsequently‑‑Judgment of Appellate Court being based on proper reasoning, and there being no illegality same could not he interfered with by High Court in exercise of its Constitutional jurisdiction.

Ghulam Farid Khan v. Muhammad Hanif Khan and others 1990 SCMR 763; Muhammad Bashir v. Qazi Bashir Ahmad 1996 MLD 674 and Naimuddin v. Mst. Mah‑e‑Talat and 2 others 1984 CLC 638 ref.

S.M. Mohsin Zaidi for Petitioner.

Ch. Ahmad Saif Ullah Khatana and Khawar Mahmood for Respondent No.3.

2003 M L D 551

[Lahore]

Before Abdul Shakoor Paracha, J

Mst. BILQUIS AKHTAR‑‑‑Appellant

Versus

Mst. RASHIDA BEGUM and another‑‑‑Respondents

Regular Second Appeal No.40 of 1992, heard on 25th June, 2002.

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

‑‑‑‑S.27(b)‑‑‑Bona fide purchaser for consideration without notice‑‑‑Onus to prove‑‑‑Such onus is on the subsequent vendee.

Mst. Khair‑ul‑Nisa and others v. Malik Muhammad Ishaque and others PLD 1972 SC 25 ref.

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

‑‑‑‑Ss.12 & 27(b)‑‑‑Principle of bona fide purchaser for consideration without notice‑‑‑Applicability‑‑‑Owner of the disputed plot executed agreement to sell in favour of plaintiff and earnest money was duly received by her‑‑‑No sale‑deed having been executed by the owner, suit for specific performance of agreement to sell was filed‑‑‑During the pendency of the suit, the property was sold in favour of the defendant‑‑­Defendant resisted the suit on the plea of bona fide purchaser for valuable consideration without notice of the prior agreement‑‑‑Defendant asserted that he entered into agreement to purchase with the owner for a sum of Rs.1,25,000 and a sum of Rs.25,000 was received by the owner, whereas sale‑deed produced by the defendant was for a sum of Rs.18,000‑‑‑Both the Courts below concurrently dismissed the suit‑‑­Contention of the plaintiff was that the defendant had knowledge of the prior agreement between the owner and plaintiff, therefore, the Courts below had wrongly dismissed the suit‑‑‑Validity‑‑‑In the sale‑deed produced by the defendant which was registered before the Sub-­Registrar, neither there was any mention of agreement to sell nor receiving of balance consideration amount‑‑‑Defendant appearing in the witness‑box had not stated that he was not aware of the previous agreement to sell executed by the owner in favour of the plaintiff‑‑­Defendant in the present case, had the knowledge of the agreement entered into by the owner with the plaintiff before the execution of sale­-deed in his favour‑‑‑Both the Courts below had recorded finding qua benefit of S.27(b) of Specific Relief Act, 1877, erroneously which could not be sustained‑‑‑High Court set aside such finding and declared the defendant as not the bona fide purchaser with consideration without notice‑‑‑Judgments and decrees passed by both the Courts below were set aside and the suit was decreed in favour of the plaintiff.

Muhammad Sharif v. Mst. Sughra Bano and others 1984 SCMR 1139; Bakhtawar v. Sher Muhammad and others 1984 CLC 2248 and Syed Mithal Shah v. Khawaja Rafiullah and another PLD 1975 Kar. 930 ref.

Mian Shahid Iqbal for Appellant.

Nemo for Respondents.

Date of hearing: 25th June, 2002.

2003 M L D 559

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD ARSHID‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.4555‑B of 2002, decided on 5th August, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.380/458‑‑‑Bail, grant of‑‑­Further inquiry ‑‑‑F.I.R. was lodged with a delay of about 24/25 days and even in that belated F. I. R. accused had not been nominated as one of perpetrators of the alleged offences‑‑‑No recovery of any sort had been effected from the accused in connection with the case and no identification parade had been held so as to positively implicate accused in the alleged offence‑‑‑Name of accused had surfaced for the first time through a supplementary statement made by complainant before Investigating Officer about 27 days after the registration of F.I.R. and about a month and a half after alleged incident‑‑‑Such implication was based only upon an alleged identification of accused by complainant in police custody ‑‑‑Challan had already been submitted after completion of investigation‑‑‑Continued custody of accused in jail was not likely to serve any beneficial purpose‑‑‑Case against accused called for further inquiry into his guilt‑‑‑Accused was admitted to bail, in circumstances.

Ch. Tariq Javaid for Petitioner.

Ms. Rabia Bajwa for the State.

2003 M L D 563

[Lahore]

Before Sayed Zahid Hussain, J

Raja MUHAMMAD NAZAR through his Legal Heirs‑‑‑Petitioner

Versus

ADDITIONAL DEPUTY COMMISSIONER (GENERAL)/DY. SETTLEMENT

COMMISSIONER RAWALPINDI ‑‑‑ Respondent

Writ Petitions Nos.34‑R, 26‑R and 50‑R of 1986, heard on 29th April, 2002.

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

‑‑‑‑Art.199‑‑‑Scheme for Management and Disposal of Urban Properties, 1977‑‑ Constitutional petition‑‑‑Allotment of evacuee property‑‑­Cancellation of allotment‑‑ Initially petitioner made an application for reservation of the whole property yet he was called upon to deposit the price of part of it i.e. 8 Marlas and 4 Sarsahi‑‑‑Permanent Transfer Order issued in favour of the petitioner described the area transferred to him but there was noting preceding the issuance of Permanent Transfer Order which made mention of the area‑‑‑In pursuance of the demand made by the Department for the payment of price, the petitioner submitted a deed of association in which measurement of the land was mentioned as 8/4 and the figure was taken and construed as 8 Marlas and 4 Sarsahi in the proceedings by the officials and the parties‑‑‑Grievance of the petitioner was that the area of land for which he applied for was not allotted rather less land was allotted to him and the reservation of the plot was cancelled by the Authorities‑‑‑Validity‑‑As the figure of 8/4 was construed as 8 Marlas and 4 Sarsahi in the official proceedings by the officials and the parties and the petitioner being signatories to the deed of association they were bound by the order of allotment passed by Settlement Authorities‑‑‑Permanent Transfer Order was rightly issued to him for an area measuring 8 Marlas and 4 Sarsahi‑‑­Petitioner in the present case could not lay claim to the whole of the property and was entitled to the extent of the area mentioned in the Permanent Transfer Order‑‑‑High Court directed the Settlement Authorities to issue necessary title documents on clearance of the outstanding dues‑‑‑Petition was allowed accordingly.

(b) Scheme for Management and Disposal of Urban Properties, 1977‑‑‑

‑‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Allotment of evacuee property‑‑‑Rejection of Form RSS‑VIII (Building site)‑‑‑Petitioner claimed to be entitled for allotment of the disputed property while one of the respondents also claimed entitlement on the basis of possession of the property under Scheme for Management and Disposal of Urban Properties, 1977‑‑‑Settlement Authorities took the view that none of the persons was entitled to the transfer of property‑‑­Contention of the petitioner was that he was entitled to three times more land in addition to the area in his possession on the strength of the judgment passed by Supreme Court in case titled Muhammad Din and others v. Ghulam Muhammad Naseem Sindhu, reported as PLD 1991 SC 1‑‑‑Validity‑‑‑Petitioner applied for 4 Marlas and addition of one Kanal was made in the form later on‑‑‑Petitioner could not extend or enlarge his claim beyond what he had asked for‑‑‑In the facts and circumstances of the case the contention of the petitioner was not accepted by the High Court‑‑‑High Court directed the Settlement Authorities to issue the necessary documents to the petitioner on payment of the dues in accordance with law‑ ‑‑Constitutional petition was allowed accordingly.

Muhammad Din and others v. Ghulam Muhammad Naseem Sindhu and others PLD 1991 SC 1 ref.

(c) Scheme for Management and Disposal of Urban Properties, 1977‑‑‑

‑‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Allotment of evacuee property‑‑‑Rejection of Form RSS‑III (Building site)‑‑‑Settlement Authorities rejected the Form on the basis of spot inquiry according to which the petitioner did not prove his construction and was not proved which be in possession of the property ‑‑‑Validity‑‑­Report of spot inquiry was not sufficient to non‑suit a person who had once been found in possession and transferred the area in dispute‑‑‑Order passed by the Settlement Authorities was set aside and the case was remanded to them for decision afresh after giving opportunity of hearing to the necessary parties to prove their claim‑‑‑Constitutional petition was flowed accordingly.

A.R. Shaukat for Petitioner.

M. Z. Khalil for Respondent No. 1, (on Court Call).

Mrs. Sughra Ahmed for Respondents Nos.2 to 5.

Date of hearing: 29th April, 2002.

2003 M L D 568

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD HANIF‑‑‑Petitioner

Versus

ARSHAD ALI and 6 others‑‑‑Respondents

Civil Revision No.929‑D of 1992, heard on 18th June, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑‑S.42‑‑‑Limitation Act (IX of 1908), Art.44‑‑‑Suit for declaration‑‑­Limitation‑‑‑Plaintiffs who were minors had filed suit after expiry of three years of attaining their majority‑‑‑Ward who had attained majority, could file suit within three years of his attaining majority under Art. 44 of Limitation Act, 1908‑‑‑Suit filed after expiry of prescribed period of three years, was liable to be dismissed being barred by time.

Sarshar Ali v. Roberts Cotton Association Ltd. and another PLD 1963 SC 244; Haji Sikandar v. Malik Khan Muhammad and another 1973 SCMR 420; Noor Muhammad v. The State 1983 SCMR 420; Abdul Qadir and 5 others v. Muhammad Umar and others PLD 1987 Lah. 232; Muhammad Suleman v. Abdul Rashid and 13 others PLD 1987 Lah. 387; Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286; Said Muhammad and another v. M. Sardar and others PLD 1989 SC 532 and Lebha Ram and others v. Ram Partab and others AIR 1944 Lah. 76 ref.

Habib Ullah Chaudhary for Petitioner.

S.M. Masood for Respondents.

Date of hearing: 18th June, 2002.

2003 M L D 575

[Lahore]

Before Ali Nawaz Chowhan, J

MUHAMMAD ARSHAD‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.6762‑B of 2002, decided on 22nd October, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

--‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.380/458‑‑‑Bail, grant of‑‑­F. I. R. was lodged after ten days from alleged occurrence‑‑‑Complainant in his F.I.R. expressed doubt against three persons but name of accused was not included therein‑‑‑Accused was nominated by Complainant through a supplementary statement which was recorded after about five weeks of alleged occurrence‑‑‑Story of recovery itself was unplausible rather it looked preposterous that a few packets of cigarettes and soaps could be hidden in an open field for so long‑‑‑Bail was allowed to accused, in circumstances.

Ch. Tariq Javed for Petitioner.

Mian Abdul Qayyum Anjum for the State.

2003 M L D 577

[Lahore]

Before Maulvi Anwarul Haq and Pervaz Ahmed, JJ

ADMINISTRATOR, ZILA COUNCIL, GUJRANWALA and 2 others‑‑‑Petitioners

Versus

ABDUL QAYYUM KHAN NIAZI, PARTNER/ CONTRACTOR and 2 others‑‑‑Respondents

Intra‑Court Appeal No. 101 of 1997, heard on 9th April, 2002.

Punjab Local Government Ordinance (XIII of 2001)‑‑‑

‑‑‑‑S.118‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Pursuant to an advertisement issued by Zila Council for auction of lease of collection of Export Tax for period from 1‑7‑1996 to 30‑6‑1997, petitioners made a bid which being highest was accepted and agreement was executed between petitioners and the Authorities‑‑­Petitioner, during the existence of said agreement filed Constitutional petition alleging that a representation was made by the Authorities to them to the effect that petitioners would be entitled to recover Export Tax at proposed enhanced rate and that because of said representation they had made a very high bid‑‑‑Said allegations were denied by the Authorities‑‑‑High Court accepted the Constitutional petition‑‑­Validity‑‑‑Pure question of fact was involved in the Constitutional petition as to whether or not a representation was made by the Authorities to petitioners to the effect that petitioners would be entitled to recover Export Tax at enhanced rate‑‑‑Allegations repeatedly made by petitioners in Constitutional petition, had been denied by the Authorities with equally repeated vehemence in written statement‑‑‑Question involved in Constitutional petition was such which could not have been resolved without resorting to a trial and recording of evidence, and such exercise could not be undertaken in Constitutional jurisdiction of High Court‑‑‑Superior Court under its Constitutional jurisdiction, was not to involve itself into a full probe or in‑depth investigation of disputed question of fact which necessitated taking of evidence and that could conveniently and appropriately be done by forums below available in the hierarchy‑‑‑Constitutional jurisdiction was primarily meant to provide expeditious and efficacious remedy in a case where an illegality, impropriety and flagrant violation of law regarding impugned action of Authority, was apparent and could be established without any comprehensive enquiry into complicated, ticklish, controversial and disputed facts‑‑‑Constitutional petition was dismissed in intra‑Court appeal, in circumstances.

Chaudhry Hameed‑ud‑Din for Appellants.

Muhammad Yaqoob Sindhu for Respondents.

Date of hearing: 9th April, 2002.

2003 M L D 602

[Lahore]

Before Muhammad Khalid Alvi, J

MANZOOR HUSSAIN and 19 others‑‑‑Appellants

Versus

RIAZ HUSSAIN and another‑‑‑Respondents

Regular Second Appeal No.63 of 1982, decided on 4th December, 2001.

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

‑‑‑‑O.XIII, R.4‑‑‑Document, admissibility of‑‑‑Merely non‑marking of exhibits on documents, would not render them inadmissible.

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑----

‑‑‑‑Ss.4 & 15‑‑‑Right of pre‑emption ‑‑‑Nature‑‑‑Right of pre­emption was as good a statutory right as any other and not a piratic right.

1992 SCMR 1778 and PLD 1989 SC 314 ref.

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

‑‑‑‑O.XLI, R.27‑‑‑Additional evidence, production of‑‑‑Principle‑‑‑If plaintiffs, case was made out for exercise .of jurisdiction conferred on Appellate Court for admitting some additional evidence, then whether it would benefit plaintiffs or defendant was immaterial‑‑‑Court would exercise its jurisdiction to resolve real matter in controversy between parties by admitting additional evidence.

PLD 1967 SC 418; PLD 1974 SC 134; 1997 SCMR 1267; 1998 MLD 1652; AIR 1944 Lah. 172; AIR 1947 Lah. 352; PLD 1967 SC 153; 1973 SCMR 252; PLD 1979 BJ 38; PLD 1972 SC 52; 1987 SCMR 1497 and PLD 1975 Lah. 1170 ref, Ch. Imdad Ali Khan for Appellants.

Mian Muhammad Arshad Latif for Respondents.

Date of hearing: 26th November, 2001.

2003 M L D 618

[Lahore]

Before Abdul Shakoor Paracha, J

REHMAT ALI and 3 others‑‑‑Petitioners

Versus

ABDUL GHANI through Legal Heirs‑‑‑Respondent

Civil Revision No.981‑D of 1995, heard on 8th April, 2002.

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

‑‑‑‑Ss.8 & 42‑‑‑Transfer of Property Act (IV of 1882), Ss.52 & 119‑‑­Limitation Act (IX of 1908), Art. 143‑‑‑Suit for declaration‑‑­Limitation‑‑‑Exchange of land‑‑‑Cancellation of allotment of land given in exchange‑‑‑Effect‑‑‑Land allotted to predecessor‑in‑interest of defendants against his claim was exchanged by him with land owned by deceased father of plaintiffs vide mutation‑‑‑Allotment of land given in exchange by defendants to plaintiffs was subsequently cancelled and was resumed by Border Area Committee‑‑‑Plaintiffs on strength of S.119 of Transfer of Property Act, 1882 had claimed in their suit for declaration that land allotted to defendants and given in exchange to plaintiffs having been cancelled and resumed by Border Area Committee, plaintiffs were entitled for return of their land transferred by them to defendants‑‑‑Suit was resisted by defendants contending that provisions of S.119 of Transfer of Property Act, 1882 were not applicable and that at the time of exchange title of defendants was not defective; that plaintiffs in their suit did not pray for possession of their land and suit was hit by S.42 of Specific Relief Act, 1877‑‑‑,Validity‑‑‑Plaintiffs who were deprived of the land taken from them in exchange, under terms of agreement, were entitled to recover land which they had given in exchange‑‑‑Land given by plaintiffs to defendants having been sold by the defendants to other vendees, defendants could not claim that land given in exchange by plaintiffs as the same was no more in possession of the defendants‑‑‑Contention of defendants was repelled ‑ because subsequent transfer by defendants had no bearing on right of parties under S.52 of Transfer of Property Act, 1882 under principle of `lis pendens'‑‑‑Plaintiffs having claimed declaration in respect of land given by them to defendants in exchange, possession of said land would follow on awarding decree of declaration in favour of plaintiffs‑‑‑Suit filed by plaintiffs was to recover land under covenant, Art. 143 of Limitation Act, 1908 would attract which had prescribed period of 12 years for recovery of possession‑‑‑Suit filed within said ‑period was not barred by time‑‑‑Courts were not justified to dismiss the suit.

R. V. Srinivasa Ayyangar v. Kottappakki Johnsa Rowther Indian Cases 939 ref.

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

‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), O.VII, R.7‑‑‑Suit for declaration‑‑‑Plaintiffs had not prayed for possession of suit land in the suit for declaration‑‑‑Objection to that effect raised by defendant was not entertainable as it was rule of procedure under O. VII, R.7, C.P.C. that Court‑could grant such relief as justice of case could demand‑‑‑Whole of the plaint must be looked into, for determining relief asked for, so‑that substance rather than form should be examined.

Samar Gul v. Central Government and others PLD 1986 SC 35 ref.

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

‑‑‑---S.115‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Transfer of Property Act (IV of 1882), S.119‑‑‑Suit for declaration‑‑‑Both Courts below had misread the mutation and misinterpreted provisions of Transfer of Property Act, 1882‑‑‑Courts below, in circumstances, had committed irregularity and illegality to non‑suit. plaintiffs‑‑‑Concurrent judgments passed by Courts below were set aside by High Court in exercise of its revisional jurisdiction.

Ch. Muhammad Ashraf Wahla for Petitioner

Karamat Ali Butt for Respondents

Date of hearing: 8th April, 2002

2003 M L D 630

[Lahore]

Before Abdul Shakoor Paracha, J

SAFDAR ALI SHAH‑‑‑Petitioner

Versus

DEPUTY COMMISSIONER/COLLECTOR, GUJRAT and others‑‑‑Respondents

Writ Petition No.9327 of 2001, decided on 5th November, 2001.

Civil Procedure Code (V of 1908)‑‑‑--

‑‑‑‑S.12(2)‑‑‑West Pakistan Muslim Personal Law (Shariat) application Act (V of 1962), S.2‑A [as amended by Punjab Muslim Personal Law (Shariat) Application Act (Amendment) Ordinance (XIII of 1983)]‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Application for setting aside judgment and decree on plea of fraud‑‑­Dismissal of application‑‑‑Effect‑‑‑Application for setting aside judgment and decree on plea of fraud by respondent was dismissed by Trial Court observing that operation of impugned judgment and decree had abated under S.2‑A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962‑‑‑Pending revision against judgment of Trial Court, respondent filed application before District Collector for correction of record which application was accepted‑‑‑Petitioner challenged order passed by Collector in Constitutional petition alleging that, Collector had assumed jurisdiction illegally‑‑‑Validity‑‑‑Earlier decree passed ex parte having abated and having become nullity in eyes of law under S.2‑A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, proceedings regarding mutation would be decided by Revenue Court having jurisdiction to decide matter‑‑‑Petitioner had remedy of appeal against order passed by the District Collector.

Ch. Muhammad Abdul Saleem for Petitioner.

Ch. Muhammad Sharif for Respondent No.2.

2003 M L D 640

[Lahore]

Before Maulvi Anwarul Haq and Mian Farooq, JJ

ZARINA CHUGHTAI‑‑‑Appellant

Versus

Mst. SHAHNAZ AKHTAR and 9 others‑-‑Respondents

Regular First Appeal No.282 and 255 of 1994, heard on 20th February , 2002.

Specific Relief Act (I of 1877)‑‑‑-

‑‑‑‑S.12‑‑‑Suit for specific performance of agreement of sale‑‑‑Terms of agreement showed that total amount of consideration was settled at Rs.8,58,000 and a sum of Rs.3,40,000 had been received by the executants/defendants as earnest money at the time of execution of agreement and balance amount of Rs.5,18,000 was to be paid after three months at time of registration of sale‑deed‑‑‑Terms of agreement indicated that within said period of three months plaintiff was to pay Rs.1,15,000 to House Building Finance Corporation and to adjust the said amount against balance amount of Rs.5,18,000, but plaintiff could not pay that amount to the House Building Finance Corporation Executants having failed to get sale‑deed registered even up to extended date, plaintiff filed suit for specific performance of agreement‑‑‑Suit way; decreed subject to deposit of balance amount of consideration Rs.5,18,000 on or before specified date and encumbrance of Rs.1,15,000 which was to be paid to House Building Finance Corporation was also transferred by Trial Court to plaintiff with a direction to pay the same over and above amount of balance consideration‑‑‑Agreement had given an option to the plaintiff either to pay balance amount of Rs.5,18,000 on or before specified date or to pay 88.1,15,000 to House Building Finance, Corporation before the said date and to adjust said amount of Rs.1,15,000 against balance amount of Rs.5,18,000‑‑‑Plaintiff, in circumstances, could not have been burdened with payment of Rs.1,15,000 over and above the amount of settled consideration, but at the same time plaintiff was to be held liable for consequences of non‑payment of said amount while balance amount was still payable by him‑‑Non‑payment of Rs.1,15,000, however, could not result in cancellation of agreement of sale as contended by executants.

Malik Javed Shaukat for Appellant.

Pervaiz Inayat Malik and Mansoor Ali Bokhari for Respondent No. 1.

Sultan Mehmood for Respondents Nos.2 and 3.

Syed Fazal‑ur‑Rehman for Respondent No. 4.

Date of hearing: 20th February, 2002.

2003 M L D 656

[Lahore]

Before Maulvi Anwarul Haq and Pervaiz Ahmad, JJ

MUHAMMAD IDREES‑‑‑Appellant

Versus

Subedar SARDAR KHAN through Legal Heirs and others‑‑‑Respondents

Regular First Appeal No.56 of 1988 and Civil Revision No.1239 of 1989, decided on 6th June, 2002.

Specific Relief Act (I of 1877).‑------

‑‑‑‑S.12‑‑‑Contract Act (IX of 1872), S.10‑‑‑Specific performance of agreement of sale‑‑‑Defendant/vendor had admittedly agreed to sell suit­ land to plaintiff/vendee through a valid agreement of sale‑‑‑Defendant received earnest money from plaintiff and plaintiff never backed out from the agreement‑‑‑Subsequent vendee of suit‑land had admitted that he was aware of the agreement of sale arrived at between plaintiff and defendant before he entered into agreement of sale with defendant‑‑‑Valid contract having been entered into and performed, defendant could not be legally allowed to resile from the same.

Rajab Ali v. Mst. Aisha and others 1989 SCMR 135 and Ghulam Muhammad alias Ghulamoon v. Maula Dad and 6 others 1980 SCMR 314 ref.

Muhammad Ashraf Chaudhry for Appellant.

Ch. Muhammad Abdullah for Respondents.

Date of hearing: 20th May, 2002.

2003 M L D 664

[Lahore]

Before Sayed Zahid Hussain, J

ZULFIQAR ALI ‑‑‑Petitioner

Versus

Mst. HASHMAT BIBI and 13 others‑‑‑Respondents

Writ Petition No.22371 of 2001, heard on 28th June, 2002.

Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑---

‑‑‑‑S.10‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.164—­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Allotment of land‑‑‑Revision before Board of Revenue‑‑‑Land in dispute was allotted in 1950 in the name of predecessor‑in‑interest of respondents‑‑‑Allottee, in 1980 found that instead of his name, name of a person who was only managing his land was recorded as allottee‑‑­Authorities, on application by predecessor‑in‑interest of respondents for inquiry and correction of record, after holding enquiry reported that allotment order was in the name of predecessor‑in‑interest of respondents, but entry in Revenue Record in that respect had been tampered with and name of the person who was only managing the land had been entered fraudulently‑‑‑Application by predecessor‑in‑interest of respondents was turned down by Authorities below simply on ground of inaction of predecessor‑in‑interest of respondents for a long period of thirty years (from 1950 to 1980)‑‑‑Board of Revenue in revision by predecessor‑in‑interest of respondents against orders of Authorities of respondents found that allotment of land made in favour of predecessor­-in‑interest, merited to be restored in his favour and that subsequent orders passed on basis of fraud were without any legal footing‑‑‑Board of Revenue set aside all such orders‑‑‑Finding of Board of Revenue that allotment of land in dispute indeed was in the name of predecessor‑in­-interest of respondents, was fully supported and backed by allotment order‑‑‑No exception thus could be taken to such a view‑‑‑Contention that concurrent findings of Authorities below should not have been interfered with by Board of Revenue, was repelled in circumstances‑‑­Truth having come to light, no impediment was in the. way of Board of Revenue to remedy a wrong‑‑‑Challenge of order of Board of Revenue in Constitutional jurisdiction of High Court by a person who was found to have interpolated and tampered record, could not be countenanced as Constitutional jurisdiction was not meant for perpetuating fraud and forgery‑‑‑Such discretionary 'jurisdiction could not be invoked for retention of ill‑gotten gains‑‑‑Order passed by Board of Revenue having been found to be amply justifiable, did not warrant interference by High Court.

Shamas Mahmood for Petitioner.

Talib H. Rizvi for Respondents Nos. 1 to 5.

Muhammad Hanif Khatana, Addl. A.‑G. for Respondents Nos. 12 to 14.

Date of hearing: 28th June, 2002.

JUDGMENT

In essence the point in issue in this matter is as to whether Fazal Karim son of Ali Muhammad Khan or Fazal son of Mallay Khan was really the allottee of the land. The Board of Revenue has through the impugned order dated 3‑5‑2001 recorded a finding and conclusion that it was Fazal Din who was allottee of the land. This order has been assailed through this petition by Zulfiqar Ali son of Fazal Karim. The background of the dispute briefly stated is as under:‑‑

Lot No.5 situated in Chak No.10/3‑I Shorkot, District Jhang was allotted by the Extra Assistant Colonization Officer in the year 1950. It was in the name of Fazal son of Mallay Khan. In the year 1980 an application was made by Fazal Din son of Mallay Khan to the Collector for enquiry and correction of the record detailing the circumstances and the background how the record was interpolated, to deprive him of the land comprising of plot No.5. An enquiry was ordered by the Deputy Commissioner, which was conducted by the Extra Assistant Colonization Officer (R), Jhang to examine the record and submit a report. The latter then conducted an enquiry and in his report dated 31‑8‑1982 observed "in the order issued under section 10(3) of the Colonization of Government Lands Act, originally the name of Fazal son of Mallay Khan was recorded which bears a thumb‑impression. Subsequently, the entry has been tampered with so as to read as Fazal Karim son, of Ali Muhammad Khan" and thus name of Fazal Karim continued on the record who later on joined with him his two sons Zulfiqar Ali petitioner herein and Muhammad Iqbal Javed. He has also observed that in the. year 1966 such a dispute had surfaced as to who was the real allottee. The Land Reclamation Officer's view has been noted in I the report that "land was actually in the name of Fazal son of Mallay and Fazal Karim was only managing the land on his behalf and he had got his two sons associated through misrepresentation. Similarly, Naib Tehsildar, Ahmadpur Sial also made such 'a report on 28‑2‑1966. No action appears to have been taken on these references". Inaction, on the part of Fazal Din for a long time in the matter, however, prevailed upon the enquiry officer despite the fact that the allotment was in the name of Fazal Din to report that "the claim of the petitioner is not fully borne out from the record, although in early years of allotment his name appeared here and there. It was Fazal Karim who reclaimed the area and faces litigation in different Courts and finally the allotment was restored in favour of his sons by the Member (Colonies); Board of Revenue. The petitioner, therefore, cannot be helped at this stage". The matter then came before the Deputy Commissioner/District Collector who in view of the report of the Extra Assistant Colonization Office (R), Jhang turned down the application of Fazal Din vide order dated 30‑12‑1984. An appeal was filed by Fazal Din which was dismissed by the learned Commissioner, Faisalabad Division, Faisalabad on 1‑2‑1‑1987, which order was assailed before the Board of Revenue, when on 3‑5‑2001 the learned Member (Colonies) accepted the revision petition filed by Faza. Din and came to the conclusion that 'the allotment of Plot No.5 was made in favour of Fazal son of Mallay Khan which merits to be restored in his favour and that the subsequent orders passed on the basis of fraud are without any legal footing and are also set aside.

1. In assailing the said order, it is contended by the learned counsel for the petitioner that the report of the Extra‑Assistant Colonization Office (R), Jhang has not been correctly appreciated by the learned Member, Board of Revenue who has interfered with the findings of the Deputy Commissioner and the Commissioner without any valid basis. According to him such a jurisdiction did not vest with the learned Member, Board of Revenue. It is contended that such a disputed issue of allegations and counter‑allegations of interpolation of record and fraud could not have been gone into by the Board of Revenue, which matter could appropriately have been dealt with in a proper suit before the Civil Court. It is further contended that long‑standing entries in the Revenue Record could not be interfered with. The learned counsel for Fazal Din supports the orders passed by the learned Member, Board of Revenue and contends that in a matter where fraud has been practised and record had been interpolated, the Member, Board of Revenue could exercise jurisdiction, which he did on the basis of the record, which was produced before and examined by him. It is contended that no sanctity can be claimed to an entry, which has no valid basis and that mere lapse of time would not validate something which was from its inception invalid.

2. The order of allotment has not been placed on record, the same, however, had been perused and examined by the Member, Board of Revenue. He has come to the conclusion that the allotment was in the name of Fazal son of Mallay Khan. He has on a' quite minute examination of the record observed in paragraph 8 of the order, relevant portion whereof is reproduced, as under:‑‑

"A perusal of allotment order (Annexure P/1) shows that land in question was allotted to Fazal son of Mallay Khan; the predecessor‑in‑interest of the present petitioners: It is also crystal clear that the word "Karim' has been added after word Fazal and word 'All' has been added before Mallay in the parentage whereas the word `Mallay' has been interpolated as 'Ahmad'. The interpolation has been made with a different ink and pen. The original allottee Fazal son of Mallay had thumb­ marked the allotment order in token of acceptance of terms and conditions of the Scheme whereas the signature reading as has been added below the thumb‑impression while the word " has been added in different ink after the entries reading as. The date of allotment has been also interpolated. All these insertions and overwriting are very clear on the original allotment order, which is recorded in a different ink. The entries in the Khasra Girdawari also show the cultivation of Fazal‑ud‑Din son of Mallay Khan from Kharif 1952 to Rabi 1961. The name or allottee Fazal son of Mallay Khan has been entered in the "Faro Taqseem Arazai" for the year 1950‑51. "

Such is a finding recorded on due perusal of the record. It may be appreciated that even the Extra‑Assistant Colonization Officer (R) had noted in his report that the allotment order was in the name of Fazal son of Mallay Khan but the entry was tampered with "so as to read as Fazal I Karim son of Ali Muhammad Khan". It has also been noted that "lot No.5 stood allotted in the name of Fazal son of Mallay, but subsequent order of allotment in favour of Fazal Karim was not forthcoming". When the matter came before the Deputy Commissioner, it was noted by hint also that "in the allotment order under section 10(3) of the Colonization of Government Lands (Punjab) Act, 1912 originally the name of Fazal son of Mallay Khan was recorded, which also bears a thumb‑impression. Subsequently the entry appears to have been tampered, so as to read as Fazal Karim". The learned Commissioner, however, dealt with the matter in somewhat different manner observing that "the appellant submitted an application in 1980 for the first time for the correction of the entries of the Revenue Record having remained silent for a period of about 30 years. It appears that either the appellant was not allottee of the land in question or he was not interested in the same". In such state of the record, which indeed explicitly showed the allotment of lot in the name of Fazal son of Mallay Khan, the learned Member, Board of Revenue was justified to record his conclusion on perusal and examination of the record by himself. He clearly arrived at the conclusion that fraud had been committed and record had been interpolated and tampered so as to convert the allotment order from Fazal son of Mallay Khan to Fazal Karim son of Ali Muhammad Khan. The allotment order, which was of immense importance, has not been annexed with the petition and thus an important piece of evidence has been suppressed from the Court. A photocopy of the same duly attested by the office of the District Collector has, however, been showed to me by the learned counsel for the respondents, the perusal whereof supports the finding recorded by the learned Member, Board of Revenue. The finding to the effect that the allotment was indeed in the name of Fazal son of Mallay Khan is fully supported and backed by the allotment order. No exception can, therefore, be taken to such a view taken by the learned Member, Board of Revenue.

The contention of the learned counsel for the petitioner that concurrent findings should not have been interfered with by the learned Member, Board of Revenue has no substance in the facts and circumstances of the case. As observed above even the enquiry officer (Extra‑Assistant Colonization Officer (R) had noted this fact as also the learned Deputy Commissioner that 'the original allotment was in the name of Fazal son of Mallay Khan', which entries had been altered by interpolations in the record. It was a clear case of fraud, fabrication anti forgery of record. Mere lapse of time and inaction on the part of Fazal would not have deprived or denuded the authorities, of the power to rectify their own record by taking corrective and remedial steps and undo an injustice. The learned Member, Board of Revenue being at the apex of the statutory hierarchy, exercising revisional jurisdiction could justifiably exercise his jurisdiction, in the peculiar fact and circumstances of the case. Even the intervening events and litigation to which Fazal Din was not party would not alter the reality. Fazal Din was the original allottee and fabrication was made in the record later on showing Fazal Karim as allottee, in place of Fazal. The truth having come to light there was no impediment in the way of Board of Revenue to remedy a wrong.

Challenge to such an order in writ jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 by a person found to have interpolated and tampered the record cannot be countenanced nor the writ jurisdiction is meant for perpetuating fraud and forgery. Such a discretionary jurisdiction cannot be invoked for the retention of ill‑gotten gains. The contention of the learned counsel that the Board of Revenue instead of interfering in the matter should have directed the respondents to approach Civil Court stands negated by the conduct of the petitioner himself who instead of challenging the order of the Board of Revenue before the, Civil Court has invoked the writ jurisdiction of this Court.

Since the order passed by the learned Member, Board of Revenue has been found to be amply justifiable, it warrants no interference by this Court.

The petition accordingly is dismissed

H.B.T./Z‑121/L Petition dismissed

2003 M L D 670

[Lahore]

Before Ch. Ijaz Ahmad, J

ABDUL QAYYUM KHAN‑‑‑Petitioner

Versus

DISTRICT OFFICER, PASSENGER AND FREIGHT TRANSIT TERMINAL, LAHORE, GENERAL BUS, STAND, BADAMI BAGH, LAHORE‑‑‑Respondent

Writ Petition No. 10774 of 2002, decided on 27th June, 2002.

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

‑‑‑‑Art.199‑‑‑Constitutional petition, maintainability of‑‑‑Enforcement of contract through Constitutional petition was not permissible, especially when contract arrived at between the parties contained arbitration clause and petitioner, had alternative remedy to approach competent forum according to terms of contract.

Project Director; Balochistan Mines Irrigation v. Messrs Murad Ali & Company 1999 SCMR, 121 and Mumtaz Ahmad v. District Council, Sahiwal 1999 SCMR 117 ref.

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

‑‑‑‑Arts.4 & 199‑‑‑Administration of justice‑‑‑Function of public functionaries‑‑‑Public functionaries deriving authority from or under law, were obliged to act justly, fairly, equitably, reasonably, without any element of discrimination and squarely within parameters of law as applicable in a given situation.

Ch. Muhammad Yaqoob Sindhu for Petitioner

M. Afzal Legal Advisor of the Respondent.

2003 M L D 686

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD SHAH and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Revision Petition No.84 of 2000/BWP, decided on 2nd October, 2002.

Penal Code (XLV of 1860)‑‑‑-

‑‑‑‑S.337‑F(i)‑‑‑Appreciation of evidence‑‑‑Reduction in sentence‑‑­Accused had not challenged their conviction and had asked for reduction of sentence awarded to them by Trial Court‑‑‑Accused were convicted for causing simple injuries to the complainant‑‑‑Accused who were sentenced to undergo for a period of one years' R.I. spent a considerable time behind the bars, prior to their admission to bail and remained in jail for about two months‑‑‑Occurrence having taken place in the year 1994. interest of justice would not allow that accused were sent to jail after such a long lapse of time‑‑‑Maintaining conviction of the accused their sentence was reduced to imprisonment from one year's R.I. each to that of already undergone by them‑‑‑Sentence of "Daman" upon one of the accused was maintained.

M. Shamshir Iqbal Chughtai for Petitioners.

Mian Muhammad Bashir, A.A.‑G. for the State.

Date of hearing: 2nd October, 2002.

2003 M L D 702

[Lahore]

Before M.A. Shahid Siddiqui, J

Mst. NEK BIBI and 8 others‑‑‑Petitioners

Versus

Mst. MARYUM BEGUM and 5 others‑‑‑Respondents

Civil Revision No.921 of 1991, heard on 16th August, 2002.

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

‑‑‑‑O.XLI, R.27‑‑‑Additional evidence, production of‑‑‑During pendency of appeal appellant moved an application seeking permission to place a specified mutation on record as additional evidence according to which appellant had inherited shares from inheritance of his real uncle who was issueless, which application was dismissed by the Appellate Court‑‑­Mutation sought to be produced as additional evidence pertained to substantive right of appellant and had direct bearing on merit of the case‑‑‑Validity‑‑‑Appellate Court should have allowed application to produce evidence and remanded case to Trial Court for a fresh decision after allowing respondents to produce evidence in rebuttal‑‑‑Order of Appellate Court refusing to grant permission to produce additional evidence had not advanced cause of justice and was illegal, in circumstances‑‑‑High Court accepting revision petition against judgment of Appellate Court below, sent back the case to District Judge to entrust the same to Civil Judge for a fresh decision after admitting mutation in evidence and allowing opportunity to respondents to adduce evidence, in rebuttal.

(b) West Pakistan Land Revenue Act (XVII of 1967)‑‑-----

‑‑‑‑S.39‑‑‑Mutation, attestation of‑‑‑Acquisition of proprietary right of inheritance, was not dependant on the attestation of mutation in Revenue Record ‑‑‑Mutation itself would not create any right, so its authenticity could not be doubted simply because it was not given effect in Revenue Record.

S.M. Zamir Zaidi for Petitioners.

Syed Ali Raza for Respondents

Date of hearing: 16th August, 2002.

2003 M L D 709

[Lahore]

Before Nasim Sikandar, J

Mst. SALAMTAY and 21 others‑‑‑Petitioners

Versus

MUHAMMAD SARWAR and 3 others‑‑‑Respondents

Civil Revision No.697 of 1986 heard on 9th March, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.42‑‑‑Limitation Act (IX of 1908), Art. 120‑‑‑Civil Procedure Code, (V of 1908), S.115‑‑‑Suit for declaration‑‑‑Limitation‑‑‑Suit land earlier allotted ‑to predecessor‑in‑interest of defendants was cancelled and allotment was confirmed in favour of plaintiffs by the Settlement Authorities‑‑‑Allotment of land was again cancelled from the names of plaintiffs in 1974 and was given for the defendants‑‑‑Plaintiffs filed suit against cancellation of their allotment in 1982 after about 8 years of cancellation of their allotment‑‑‑Suit was dismissed by Trial Court on the facts and on point of limitation, but Appellate Court reversed judgment and decree passed by Trial Court holding that plaintiffs were dispossessed in year 1980‑‑‑No evidence was on record to show that plaintiffs were dispossessed in year 1980‑‑‑Article 120 of Limitation Act, 1908 prescribing six years limitation for filing suit being applicable in the case suit filed after eight years was barred by time and was rightly dismissed by Trial Court‑‑.­Appellate Court having misread evidence of record, had exercised its jurisdiction with material irregularity‑‑‑High Court, in exercise of its revisional jurisdiction set aside judgment and decree of Appellate Court below and restored that of Trial Court whereby suit was. dismissed.

1986 SCMR 1331; PLD 1975 Central Statutes 87 and Nawabzada Zafar Ali Khan and others v. Chief Settlement Commissioner 1999 SCMR 1719 ref.

Mian Arshad Latif for Petitioners.

Malik Sharif Ahmad for Respondents.

Date of hearing: 9th March, 2000.

2003 M L D 718

[Lahore]

Before Zafar Pasha Chaudhary, J

MUHAMMAD AZAM and others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3756‑B of 2001, decided on 6th November, 2001.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.324/34‑‑‑Bail, grant of‑‑‑ Earlier bail application by accused was dismissed and no fresh ground was available to the accused in support of their plea for grant of bail‑‑‑Accused and his co‑accused were armed with hatchet and iron rod respectively ‑‑‑Co‑accused inflicted a blow on the leg of injured which resulted in serious injury on his leg and accused inflicted hatchet blow from its blunt side on the same leg as a result of which leg of the injured was broken ‑‑‑Co‑accused inflicted another blow on the head of other injured while accused gave another blow on head of wife of said injured and both husband and wife were seriously injured ‑‑‑Co‑accused thereafter caused many injuries on injured persons after they fell down‑‑­Accused, on merits, were, not entitled to grant of bail; their previous application for bail having been dismissed and no new ground having been ‑ made out their second. bail application was dismissed.

Pervaiz Inayat Malik for Petitioner.

Nazir Ahmad for the State.

Ch. Shafaqat Ali Sulehri for the Complainant

2003 M L D 727

[Lahore]

Before Jawwad S. Khawaja, J

AHMAD and another‑‑‑Petitioners

Versus

KHADIM HUSSAIN and another‑‑‑Respondents

Civil Revision No.440 of 1999, heard on 13th August, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.54‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑‑Suit for perpetual injunction‑‑‑Rejection of plaint‑‑‑Plaintiffs and defendants were co‑owners of property in dispute and were in possession of their respective portions of the property‑‑‑Plaintiffs apprehending that they would be forcibly dispossessed of the area in their possession by defendants, filed suit to the effect that defendants be restrained from dispossessing them otherwise than in due course of law‑‑‑Defendants instead of resisting suit, filed application under O. VII, R.11, C. P.C. for rejection of plaint which was concurrently allowed on the ground that plaintiffs had not been able to establish that they were exclusive owners of distinct areas comprised in common Khata‑‑‑Such plea could hardly be a ground for rejecting plaint in which relief was sought that plaintiff could not be dispossessed otherwise than through process of law‑‑­Though each co‑owner would be deemed to be owner of the every inch of common Khata, but it would not follow that one of co‑owners, who was in possession of a portion of joint Khata could be forcibly dispossessed therefrom‑‑‑Two Courts below had acted illegally iii rejecting the plaint filed by plaintiffs‑‑‑Concurrent judgments of Courts below, were set aside, directing that suit should proceed before Trial Court on merits‑‑‑Case was remanded accordingly.

Muhammad Zahid Abbasi for Petitioners.

S.M. Rashid for Respondents.

Date of hearing: 13th August, 2002.

2003 M L D 731

[Lahore]

Before M.A. Shahid Siddiqui, J

MUHAMMAD ASLAM and 2 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2590‑B of 2002, decided on 24th October, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.392/395/458/412‑‑‑Bail‑‑­Accused were related to the complainant and his explanation regarding the delay in registration of the case did not appear to be unreasonable‑‑­Accused stated to be a minor had been produced in the Court pursuant to a direction and he was a tall young boy of height not less than 5 feet and six inches‑‑‑Age of the said accused. recorded in the School certificate did not appear to be correct‑‑‑Reasonable grounds existed to believe that the accused had committed the offences with which they had been charged which were hit by the prohibition contained in S.497(1), . Cr.P.C.‑‑‑Bail was declined to accused in circumstances.

Mashkoor Sabri for Petitioner.

Rana Jahanzeb Khan for the Complainant.

Atta Ullah Tareen for the State.

2003 M L D 733

[Lahore]

Before Ch. Iftikhar Hussain, J

GHULAM HUSSAIN‑ Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1882‑B of 2002, decided on 13th August, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11‑‑‑Bail, grant of‑‑‑Accused had been declared absconder by the Trial Court after submission of challan‑‑‑Accused had been arrested in execution of a warrant of arrest issued against him and had been behind the bars for a period of about 1 year‑‑‑Accused had explained the cause of his absence from the Trial Court in that he had gone to another city for labour and had not received any intimation of the submission of challan‑‑‑Accused had contended that his absence was not intentional rather under circumstances beyond his control‑‑‑Accused was granted bail in circumstances against a heavy amount ‑of surety to, ensure his presence before the Court.

Mian Fazal Rauf Joya for Petitioner.

Muhammad Ibrahim Farooq for the State.

2003 M L D 734

[Lahore]

Before Ch. Ijaz Ahmad, J

ISHRAT ULLAH KHAN‑‑‑Appellant

Versus

Haji ALI AKBAR and 2 others‑‑‑Respondents.

Second Appeal from Order No. 139 of 1999, decided on 15th June, 2002.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑--

‑‑‑‑Ss.5‑A, 13(2)(i) & 15‑‑‑Ejectment of tenant on ground of default in payment of rent‑‑‑Tenant did not pay rent to landlords in terms of compromise arrived at between him and landlords in earlier round of litigation‑‑‑Tenant also did not pay increased rent in view of S.5‑A of West Pakistan Urban Rent Restriction Ordinance, 1959 where rent would automatically increase after 3 years, despite legal notice was received by tenant‑‑‑Tenant was rightly ordered to be ejected both by Rent Controller and Appellate Authority on ground of default in payment of rent‑‑­Interference in concurrent finding of fact of forums below, could only be made by High, Court in appeal only when evidence was misread and concurrent finding was based on surmises and conjectures or finding was based on inadmissible evidence or there existed any error or defect in procedure which might possibly have introduced an error or defect in decision on merits‑‑‑Tenant failed to point out any evidence which was misread or non‑read by Rent Controller or Appellate Authority and had also failed to point out any principle which was violated of not followed by the said forums‑‑‑Concurrent findings of forums below could not be interfered with by High, Court in second appeal.

Haji Muhammad Ibrahim v. Haji Abdul Salam Bhatti PLD 1996 Lah. 308; Utility Stores Corporation v. Abdul Mahmood Khan 2000 CLC 1306; Abdul Aleem Ansari v. Mst. Zubaida Shaheen 2000 CLC 1873; Javed Iqbal v. S.M. Khurram Wasti Advocate 2000 CLC 126; Pakistan State Oil v. Begum Rehana Sarwar 2000 CLC 506 and Musarrat Sultana v. Muhammad Saeed 1997 PSC 546 ref, Muhammad Sharif Khokhar for Appellant.

Mian Abdul Qadoos for Respondents.

2003 M L D 742

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD ANWAR ‑‑‑Petitioner

Versus

Mst. NAWAB BIBI and others‑‑‑Respondents

Civil Revision No. 1459 of 1996, heard on 5th June, 2002.

(a) Co‑sharers‑‑‑

‑‑‑‑Transfer by co‑sharers‑‑‑Principle‑‑‑Where the parties were co­ sharers in the suit‑land, some of the defendants could not have transferred the land‑ through the sale‑deed in favour of some other person.

Ali Gohar Khan v. Sher Ayaz and others 1989 SCMR 130 and Kishori Lal and others v. Khair Din and others AIR 1937 Lah. 288 ref.

(b) Co‑sharers‑‑‑

‑‑‑‑Rights of co‑sharers in joint property, enforcement of‑‑‑Remedy against co‑sharers‑‑‑Every co‑sharer in possession of joint property, to the extent of his share in entire joint property, has a right to make use of it in a manner he likes without hindrance by other co‑sharers‑‑‑If co ­sharers feel aggrieved by conversion of user by co‑sharers, their remedy is to go for partition and get their share separated.

Akhtar Nawaz Khan and others v. Danial Khan and others NLR 1995 SCJ 159 ref.

(c) Specific Relief Act (I of 1877)‑‑‑‑-

‑‑‑‑Ss.42 & 54‑‑‑Transfer of Property Act (IV of 1882), S.54‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Sale of joint property by co­ sharers with description of specific boundaries‑‑‑Dispute in the present case was that the property was joint and yet not partitioned, when the vendors being co‑sharers sold their portion with specific description of boundaries in favour of vendee without the property being partitioned‑‑­Other co‑sharers assailed the sale and the Appellate Court decreed the suit and set aside the sale‑‑‑Plea raised by the vendee was that the vendors were co‑sharers and had validly sold their share in the joint property‑‑‑Validity‑‑‑Vendors although co‑sharers, yet were not in possession of specific Khasra numbers and, therefore, they were not entitled to transfer and lawfully alienate the plot with boundaries in favour of vendee ‑‑‑No misreading or non‑reading had been done by the Appellate Court‑‑‑High Court declined to take any exception to the judgment and decree passed by the Appellate Court as there was no illegality or irregularity committed by the Courts ‑‑‑Vendee did not point out illegal assumption of jurisdiction in the judgment of the Appellate Court.

Ali Gohar Khan v. Sher Ayaz and others 1989 SCMR 130; Kishori Lal and others v. Khair Din and others AIR 1937 Lah. 288; Afsar Khan and others v. Mst. Khanum Jan and others 1981 Law Notes SC 288; Abdul Latif v. Abdul Qayyum PLD 1992 Pesh. 103 and Asghar Bi and 3 others v. Settlement Officer, Kotli and 2 others PLD 1992 Azad J&K 29 ref.

Malik Amjid Pervaiz for Petitioner.

Ch. Muhammad Hassan for Respondents

Date of hearing: 5th June, 2002.

2003 M L D 752

[Lahore]

Before Rustam Ali Malik, J

Mst. SATTAN‑‑‑Petitioner

Versus

STATE‑‑‑‑Respondent

Criminal. Miscellaneous Nos.6616/B and 6832/B of 2002, decided on 14th October, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10‑‑‑Bail‑‑‑Specific allegations of Zina had been levelled against the male accused who had been specifically named in the F. I. R. ‑‑‑Accused was refused bail by the High Court as he was not entitled to bail, yet the woman co‑accused against whom allegations were the same as against the male accused was granted bail as she was entitled to bail on the sole ground of her being a lady.

Bashir Abbas Khan and Masood Mirza for Petitioner.

Bader Munir for the State.

Munir Ahmed Khan Zai for the Complainant.

2003 M L D 755

[Lahore]

Before Maulvi Anwarul Haq and Parvez Ahmed, JJ

ADMINISTRATOR, ZILA COUNCIL and another‑‑‑Appellants

Versus

ARIF HUSSAIN ‑‑‑‑ Respondent

Intra‑Court Appeal No. 114 of 1997, heard on 9th April, 2002.

Law Reforms Ordinance (XII of 1972)‑‑‑--

‑‑‑‑S.3‑‑‑Constitution of Pakistan (1973), Art‑199 ‑‑‑ Constitutional jurisdiction of High Court‑‑‑Object and scope of‑‑‑Constitutional jurisdiction, primarily was meant to provide expeditious and efficacious remedy in a case where an illegality, impropriety and flagrant violation of law regarding impugned action of Authority was apparent and could be established without any comprehensive enquiry into complicated, ticklish controversy and disputed facts‑Superior Courts should not involve themselves into a full probe or in‑depth investigation of fact which necessitated taking of evidence which could conveniently and appropriately be done by forums available in the hierarchy.

Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim 2001 SCMR 1493; Ataur Rehman Khan v. host Muhammad and others 1986 SCMR 598 and State Life Insurance : corporation of Pakistan v. Messrs Pakistan Tobacco Company Ltd. PLD 1983 SC 280 ref.

Kh. Haris Ahmed for Appellant.

Muhammad Yaqoob Sindhu for Respondent.

Date of hearing: 9th April, 2002.

2003 M L D 759

[Lahore]

Before Ijaz Ahmed Chaudhry, J

AMIR AFZAL‑‑‑Petitioner

Versus

GOVERNMENT OF PUNJAB and others‑‑‑Respondents

Writ Petition No. 13361 of 2002, decided on 12th August, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Contractual obligations‑‑‑Contractual obligations could not be enforced through Constitutional jurisdiction of High Court.

Mrs. Anisa Rehman's case 1994 SCMR 2232; Arshad Ahmad Khan v. Chairman, Bank of Punjab and others 2001 PLC (C.S.) 207; Habib Bank Limited and others v. Syed Zia‑ul‑Hassan Kazmi 1998 SCMR 60; Islamic Republic of Pakistan through Secretary, Establishment Division, Islamabad and others v. Muhammad Zaman Khan and others 1997 SCMR 1508; The Chandpur Mills Ltd. v. The District Magistrate Tippera and. another PLD ,1958 SC (Pak.) 267; Messrs Momin Motor Company v. The Regional Transport Authority, Dacca and others PLD 1962 SC 108; Dr. Dhanwanti Vaswati v. State and another 1994 SCMR 207 and Agricultural Development Bank of Pakistan and others v. Mst. Hamida Begum 1997 SCMR 1089 ref

Imran Shafique for Petitioner.

M. Bilal Khan, Addl.A.‑G., Moazzam Saleem and Mashood Hussain for Respondents.

2003 M L D 772

[Lahore]

Before Ch. Ijaz Ahmad, J

SIRAJ DIN and 17 others---Petitioners

Versus

MEMBER (JUDICIAL-I), BOARD OF REVENUE, PUNJAB, LAHORE and 11 others--Respondents

Writ Petition No.21338 of 1996, heard on 30th July, 2002.

(a) Pleadings---

---- Where any mistake was apparent on the face of record in the pleadings and on that basis any mistake had occurred in the judgment and decree, same could be, corrected by the Court which had passed the decree even without amending the pleadings.

Rewa Mahto v. Delu Mahto and others AIR 1924 Pat. 528; Muthu Bhattar v. Mrithunjaya Bhattar and another AIR 1918 Mad. 295; Sadodin v. Spiers (1878) 3 Born. 437; Ramasamy Iyengar v. Rarnalinga Mudaliar AIR, 1914 Mad. 154 = 22 IC 687; Ramasami Aiyangar v. Pavadai Chetty 30 Mad 145; Muhammad Iqbal Khan v. Musa Khan and 3 others 1992 CLC 400 and Karam Din and 2 others v. Allah Ditta and another 1987 CLC 1096 ref.

(b) Constitution of Pakistan (1973)---

----Art.199---Constitutional jurisdiction ---Scope---Tribunal below having given findings of facts against petitioner after perusing record and after applying its independent mind, High Court had no jurisdiction to substitute its own findings in place of findings of Tribunal especially when 'petitioner had concealed material facts from the High Court.

M. Musaddaq's case PLD 1973 Lah. 600 and Qaisar Shafi Ullah's case 1994 SCMR 859 ref.

Qazi Khurshid Aalam for Petitioners.

Ch. M. Afzal Wahla for Respondents.

Date of hearing: 30th July, 2002.

2003 M L D 793

[Lahore]

Before Tanvir Ahmed Khan, J

ALLAH DITTA---Petitioner

Versus

ZILA COUNCIL and others---Respondents

Writ Petition No.5415 of 1998, decided on 9th June, 1999.

Punjab Local Government Ordinance (VI of 1979)---

----S.39---Punjab Zila Councils (Goods Exit Tax) Rules, 1990, R.16--­Letter No. SOVI (LG)2-5/97 dated 27-7-1998---Letter No. SOVI (LG) 2-5/97, dated 31-8-1998---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Claim of the petitioners was that under R. 16 of the Punjab Zila Councils Exit Tax Rules, 1990 the Zila Council was entitled to charge 2% security and the refund claim at the rate of 5% while in the impugned notice inflated amount had been claimed--­Validity---Word "prescribed" in S.39(1)(b) of the Ordinance had been used which according to S.3 (xxix) of the Ordinance meant "prescribed" by the Rules---Provision of S.39(1)(b) of the Punjab Local Government Ordinance, 1979 made it clear that a contract would not be binding upon the Local Council unless and until same was strictly executed in accordance with the provisions of law and the Rules framed thereunder--­Punjab Zila Councils (Goods Exit Tax) Rules, 1990 also provided that the terms and conditions of the contract would not only be regulated by the Rules but also by such other terms and conditions as might be specified by the Government---Letter No. SOVI(LG) 2-5/97 dated 27-7-1998 containing the impugned instructions had been laid down generally by the Competent Authority to streamline grant of contract for collection of goods exit tax and were applied uniformally without any discrimination---Petitioners being contractors were bound by the said instructions before embarking upon correction of goods exit tax, contentions of the petitioner thus were without force---Petitioners, however, could approach the Chairman of Zila Council if he was aggrieved of the quantum of revolving fund---Constitutional petition was disposed of accordingly.

Khan Faiz Ullah Khan v. Government of Pakistan through the Establishment Secretary, Cabinet Secretary and another PLD 1974 SC 291 ref.

Ch. Muhammad Yaqoob Sindhu for Petitioner.

Muhammad Ashraf Mohandra and Fauzi Zafar for Respondents.

Date of hearing: 9th June, 1999.

2003 M L D 797

[Lahore]

Before Khawaja Muhammad Sharif, J

MUMTAZ and others- --Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 1821 of 2001, heard on 18th October, 2002.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Prosecution had suppressed the fact that five persons from the side of accused had been murdered and four persons had been injured---Occurrence had not taken place in the fields of the accused as alleged by the prosecution--- Dead bodies of the deceased persons were recovered from the house of a person belonging to the complainant side and blood-stained earth was taken into possession from underneath the cots where dead bodies were lying---Eighteen persons armed with fire-arms had, according to prosecution, fired indiscriminately at the time of occurrence, but not a single crime empty was secured from the spot---Trial Court had acquitted eleven accused persons in the case on the same evidence---Previous enmity existed between the parties and as such independent corroboration was essential to maintain the conviction which was lacking---Ocular account was in conflict with medical evidence---Prosecution case was full of doubts--­Accused were acquitted in circumstances---One convicted co-accused who had not filed any appeal was also acquitted by High Court in exercise of its suo motu powers.

Mian Muhammad Shafique Bhindasa for Appellants.

Ch. Nazir Muhammad for the State.

Date of hearing: 18th October, 2002.

2003 M L D 801

[Lahore]

Before Mian Nazir Akhtar, J

MUHAMMAD HUSSAIN and 2 others---Petitioners

Versus

BOARD OF REVENUE, PUNJAB, LAHORE through Member (Revenue) and 4 others---Respondents

Writ Petition No. 19007 of 1998, decided on 5th August, 2002.

(a) Land Acquisition Act (I of 1894)---

----Ss.4, 9 & 11---Acquisition of land---Issuance of notice to persons interested---Award---Material and substantial legal defects in award---Effect---Award made by Collector suffered from material and substantial-, defects making same a nullity in eye of law because there was absolutely no material on record that notices under S. 9 of Land Acquisition Act, 1894 were actually served on interested landowners---Acquisition proceedings had started with publication of notification under S.4 of Land Acquisition Act, 1894, possession of land was taken over by Authority and for the first time notices to landowners were issued after lapse of about seventeen years---Section 9 of Land Acquisition Act, 1894 had contemplated two notices, one which was a general public notice to be given in the locality intimating factum of proposed acquisition and inviting claims for compensation from all interested persons---Other was a special or personal notice to be served on occupants and on all other interested persons for same object---Award made by Collector did not make it clear whether notice of award was merely a general notice or a special notice---Notices under S.9 of Land Acquisition Act, 1894 were essential to exercise of Collector's jurisdiction in order to give validity to the proceedings for acquisition of land and finality to the award and that essential requirement had to be strictly complied with---Said notice having never been issued and served on landowners, proceedings taken were violative of principle of natural justice---Award, in circumstances, was without lawful authority and of no legal effect---Provisions of S.9 of Land Acquisition Act having not been complied with, Collector could not proceed to conduct inquiry into objections/claims of interested persons under S.11 of Land Acquisition Act, 1894.

Maharaja Rameswar Singh v. Secretary of State ILR 34 Cal. 470 and Muhammad Shafi through Legal Heirs v. Province of Punjab through District Collector, Multan and 4 others 2000 MLD 631 ref.

(b) Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Non-filing of written statement--­Effect---In absence of any written statement on behalf of respondents, facts stated in Constitutional petition would be presumed to be correct.

(c) Land Acquisition Act (I of 1894)---

----S.11---Award made by Collector---Ingredients---Award announced by Collector must contain the true area of land the compensation which in opinion of Collector should be allowed for land and the apportionment of said compensation among all persons known or believed to be interested in the land, of whom, or of whose claims he had information, whether or not they had respectively appeared before him.

Qadeer Ahmad Siddique for Petitioners.

M. Hanif Kithana, Addl. A.-G. for Respondents.

Date of hearing: 23rd May, 2002.

2003 M L D 808

[Lahore]

Before Khawaja Muhammad Sharif and M.A. Shahid Siddiqui, JJ

MUHAMMAD ARSHAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.202 and Murder Reference No.105 of 1998, heard on 21st August, 2002.

Penal Code (XLV of 1860)---

----S.302---Appreciation of evidence---Occurrence had taken place at about midnight and although an electric bulb was mentioned in the F.I.R. to be on in the courtyard, yet neither it was shown in the site plan nor it was taken into possession by the Investigation Officer---Ocular account was not corroborated by medical evidence---Accused had no motive to kill the deceased---Defence story appeared to be more plausible and convincing as compared to the prosecution version---Weapon of offence could not be recovered from the accused despite his being on physical remand for full period---No empty was recovered from the spot---Accused was acquitted in circumstances.

Azam Nazir Tarar for Appellant.

Ashfaq Ahmad Chaudhry for the State.

Mian Shahid Rasul for the Complainant.

Date of hearing: 21st August, 2002.

2003 M L D 814

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

JAVED BASHIR---Petitioner

Versus

JUDGE, FAMILY COURT, LAHORE and another---Respondents

Writ Petition No. 13099 of 2002, decided on 10th September, 2002.

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

----Ss.7 & 9---Proceedings before Family Court---Striking off right of cross-examination---Plaintiff's witnesses were present on three occasions, but defendant despite providing him ample opportunities to cross-examine them could not avail the same---Defendant was put to caution that it was a last opportunity, but defendant having failed to cross-examine witnesses of plaintiff, Family Court stating reasons, struck off his right of cross-examination---Parties to litigation in family cases were put to caution as to who were the witnesses and what they were going to depose and even if evidence was given by affidavits, counsel for parties could always examine the fide---Excuse of defendant that he was not furnished with copies of documents, was futile at a later stage because if such copies were not furnished, an objection could be' taken before evidence was recorded---Right of cross-examination of defendant, had rightly been struck off by Family Court as defendant had failed to avail last opportunity given to him to cross-examine witnesses of plaintiff.

Shawar Khilji for Petitioner.

2003 M L D 820

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ARIF and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.721, Criminal Revision No.358 of 1998 and Criminal Appeal No. 1576 of 2000 heard on 17th October, 2002.

(a) Penal Code (XLV of 1860)---

----S.302/34---Appreciation of evidence---Ocular testimony and medical evidence were in conflict with each other---No empty of .7-MM rifle or .30 bore pistol was recovered from the spot with which the accused were allegedly armed---No weapon of offence was recovered from the accused during investigation---Accused were found innocent by the police--­Accused were acquitted in circumstances.

(b) Penal Code (XLV of 1860)---

----S.302/34---Appreciation of evidence---Accused was armed with Kalashnikov and five crime empties of Kalashnikov were recovered from the place of occurrence--All the injuries on the person of the deceased were on the left side as a result of the burst fired by the accused---Ocular account was corroborated by medical evidence, recovery of weapon of offence, recovery of crime empties and abscondence of accused for two years and three months---Conviction and sentence of accused were upheld in circumstances.

Muhammad Afzal Wahla for Appellants.

Muhammad Azam for the State.

Ch. Muhammad Nasarullah Warraich for the Complainant

Date of hearing: 17th October, 2002.

2003 M L D 824

[Lahore]

Before Nazir Ahmad Siddiqui and Muhammad Khalid Alvi, JJ

FARZAND ALI---Appellant

Versus

Mst. SUGHRAN and 2 others---Respondents

Regular First Appeal No.284 of 2001, heard on 29th April, 2002.

Civil Procedure Code (V of 1908)---

----O.VII, R.11---Rejection of plaint---Plaint, could be rejected if its contents did not disclose a cause of action or on face of it, suit was barred by any law or if plaintiff had failed to correct valuation of suit or to supply requisite stamp paper for court-fee within time given by the Court---Position at law however, was also true that besides averments trade in the plaint, other material available on record which, on its own strength, was legally sufficient to completely refute claim of plaintiff, could also be looked into for the purpose of rejection of plaint---Court was not absolved of its judicial obligation to bury a suit at its inception, particularly a suit for equitable relief under Specific Relief Act, 1877, if it would come to conclusion after considering admitted facts or the facts which could not be disputed/refuted even without holding factual enquiry or requiring further evidence that the suit must fail this was not only requirement of law and justice, but also it was in the interest of litigating parties and judicial institution itself--- Parties would save their time and .unnecessary expenses and Courts would get more time to devote it on genuine causes.

S.M. Shafi Ahmad Zaidi through legal heirs v. Malik Hassan Ali Khan (Moin) through Legal Hems 2002 SCMR 338 ref.

Ch. Abdus Saleem for Appellant.

Nemo for Respondents.

Date of hearing: 29th April, 2002.

2003 M L D 833

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD YAQOOB---Petitioner

Versus

HAKIM ALI ---Respondent

Civil Revision No.803 of 1998, heard on 29th July, 2002.

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance of agreement of sale---Executor having failed to complete agreement on date fixed for its completion plaintiff/vendee filed suit for specific performance of agreement against defendant executor-- -Executor in his written statement had contended that through intervention of Panchayat a settlement had been arrived at between the parties and plaintiff vendee had received amount of earnest money paid by him to the defendant executor and that after refund of earnest money, agreement to sell had been revoked and plaintiff would have no lawful authority to get specific performance of agreement---Trial Court relying on decision of Panchayat, dismissed the suit, but Appellate Court in appeal reversed finding of Trial Court and found the plaintiff entitled to specific performance of agreement---Validity---Members of Panchayat had no legal authority and decision of the Panchayat had no legal value--- Execution of agreement having been admitted, Appellate Court on basis of evidence on record had rightly excluded decision of Panchayat from consideration---No illegality or irregularity had been committed by Appellate Court in accepting appeal against judgment and decree of Trial Court.

PLD 2000 SC 820 ref.

Nemo for Petitioner.

Respondent in person.

Date of hearing: 29th July, 2002.

2003 M L D 836

[Lahore]

Before M. Akhtar Shabbir, J

MUHAMMAD ASIF BODLA and others---Petitioners

Versus

SMALL BUSINESS FINANCE CORPORATION (SME BANK LTD.) and others---Respondents

Writ Petition No.3622 of 2002/BWP, decided on 1st October, 2002.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Grievance of petitioners was that Finance Corporation had issued a notice to them for recovery of amount of loan whereas petitioners had paid the said amount, which, had not been adjusted by the Corporation in its accounts---Petitioners were directed to approach the Corporation with a written application containing contention raised by them in their Constitutional petition within specific period and Corporation if approached, would make rendition of accounts to petitioners and supply a copy of the statement of accounts to them and if some amount was found outstanding against the petitioners, they would deposit the same and no coercive mode of recovery would be adopted by the Corporation against them till the specified date.

M. Shamshir Iqbal Chughtai for Petitioner.

2003 M L D 837

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ASHRAF and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.370 and 311 of 2001, heard on 29th July, 2002.

Penal Code (XLV of 1860)---

-----S.302(b)/34---Appreciation of evidence---Name of the complainant having not been mentioned in the relevant column of the medico-legal report of the deceased, he had not taken the deceased to the hospital, and did not seem to be present at the spot---Motive for the occurrence was not proved---Deceased had not made any statement before the Doctor that the accused had thrown acid on him---No police officer had visited the hospital, neither any application was submitted to the Doctor about the fitness of the deceased to make a statement--- Accused were acquitted in circumstances.

M. Ashgar Zokhari for Appellants.

Nasir Khan Bano Sai for the State.

Date of hearing: 29th July, 2002.

2003 M L D 841

[Lahore]

Before Tanvir Bashir Ansari and Abdul Shakoor Paracha, JJ

GHULAM MUSTAFA---Petitioner

Versus

PRESIDING OFFICER, SPECIAL COURT (OFFENCES AGAINST BANKS), RAWALPINDI and 2 others---Respondents

Writ Petition No. 1146 of 1996, heard on 24th October, 2002.

Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)---

----Ss.2(d), 4(1) & 6---Penal Code (XLV of 1860), Ss.409/420/467/468/471-- Constitution of 'Pakistan (1973), Art. 199--­Constitutional petition---Jurisdiction of Special Court (Offences in Banks)---Petitioner serving as Foreign Counter Clerk in Commercial Foreign Exchange in Saudi Arabia allegedly had forged various cheques and got same encashed from Bank in Pakistan where he maintained several accounts---Petitioner who was challaned to Special Court (Offences Against Banks) in Pakistan under Ss.409/420/467/468/471, P.P.C., had challenged jurisdiction of said Court on the ground that he was not liable to be tried before Special Court (Offences Against Banks) as jurisdiction of said Court only extended to a scheduled offence committed in respect of business of a scheduled Bank while Commercial Foreign Exchange in Saudi Arabia was not a Bank or scheduled Bank--­Validity---Offences made out against the petitioner admittedly fell within ambit of scheduled offences and it would not make any difference if forgery in preparing cheques was allegedly committed in Commercial Foreign Exchange in Saudi Arabia---Preparing of cheques and presenting them for encashment in Banks in Pakistan which were branches of a scheduled Bank, were series of acts constituting same transaction--­Collection of amount through the Agency of a scheduled Bank on the basis of cheques which were alleged to be forged and which-pertained to a foreign institute, would certainly be in connection with business of scheduled Bank---If prima facie offence had been committed, ordinary course of trial before the Court was not to be allowed to be deflected through an approach to a Special Court, but when offence was a scheduled offence which had been committed in respect or in connection with the business of a scheduled Bank, jurisdiction of Special Court would be squarely invoked---Three prerequisites to invoke jurisdiction of Special Court as provided in Ss.4(d), 4(1) & 6 of Offences in Respect of Banks (Special Courts) Ordinance, 1984 were; that offence should be a scheduled offence; that offence should be in respect of scheduled Bank and that offence should relate to business of a scheduled Bank---Case against petitioner having fulfilled all said three conditions, Special Court would possess necessary jurisdiction to try petitioner who was accused of such offences.

Mushtaq Hussain Shah v. The State 1986 Cr. W 567; The State v. Aizaz Ahmad and another 1986 PCr.LJ 561; Overseas Pak Credit and Investment Corporation (Pvt.) Limited v. Governor, State Bank of Pakistan and another 1988 CLC 1438 and A. Habib Ahmad v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353 ref.

Sardar Muhammad Ghazi for Petitioner.

Qazi Ahmad Naeem Qureshi, Standing Counsel.

Sh. Anwar-ul-Haque for Respondent.

Date of hearing: 24th October, 2002.

2003 M L D 845

[Lahore]

Before M. Akhtar Shabbir, J

MUHAMMAD RAFIQUE---Petitioner

Versus

MANAGER, HOUSE BUILDING FINANCE CORPORATION, RAHIMYARKAHAN and others---Respondents

Writ Petition No. 1907 of 2002/BWP, decided on 8th September, 2002.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Grievance of petitioner was that he, despite having paid the whole amount of loan and interest to the Finance Corporation, said Corporation had proceeded against him by taking coercive mode of recovery---Petitioner had submitted that he should be provided an opportunity of settlement of accounts with the Corporation and if after rendition of accounts some amount stood due against him he would make payment of the same strictly in accordance with law---Corporation had no objection if the petitioner approached the Corporation for rendition of accounts---Constitutional petition was disposed of with the direction that petitioner would approach the Corporation with written application within specified period and Corporation, if approached would make rendition of accounts and supply a copy of the statement of accounts to the petitioner and if some amount was found outstanding against the petitioner, he would deposit the same and no coercive mode of recovery would be adopted by the Corporation against the petitioner till the specified date.

Jamshed Akhtar Khokhar for Petitioner.

M. Shamsher Iqbal Chughtai for Respondents.

2003 M L D 846

[Lahore]

Before M.A. Shahid Siddiqui, J

ZULFIQAR AHMAD---Petitioner

Versus

IKHLAQ AHMAD---Respondent

Civil Revision No. 1805-D of 1997, decided on 13th September, 2002.

Punjab Pre-emption Act (IX of 1991)---

----Ss.6 & 13---Qanun-e-Shahadat (10 of 1984), Arts.76 & 77---Suit for pre-emption ---Making of Talbs---Proof---Plaintiff had claimed that he had sent notice of Talb-e-Ishhad through registered post and he had produced on record postal receipt, but he did not produce clerk of Post Office in proof of his claim---Effect---Plaintiff, in a suit for pre-emption was not only required to show that he had dispatched some thing through post, but also to prove that postal envelope contained notice and for that purpose plaintiff should have moved an application to Trial Court seeking production of original notice and if same had not been produced, plaintiff could produce secondary evidence with permission of Court as envisaged under Arts.76 & 77 of Qanun-e-Shahadat, 1984---Plaintiff, in the present case, had not adopted legal procedure to get original notice produced or lead secondary evidence with leave of the Court---Plaintiff having failed to produce notice, Trial Court did not allow him to get notice proved and exhibited in evidence---Plaintiff, in circumstances had failed to prove that he had in fact dispatched notice of Talb-e-Ishhad--­ Finding of Appellate Court that plaintiff had proved making of Talbs in accordance with law, could not be maintained---Judgment and decree passed by Appellate Court were set aside by High Court in revision.

Mian Sarfraz-ul-Hassan for Petitioner.

Ch. Muhammad Abdullah for Respondent.

Date of hearing: 9th July, 2002.

2003 M L D 849

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

JAMSHEED alias SHAHZADA and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 1052 and Murder Reference No. 50-T of 2002, heard on 20th January, 2003.

Penal Code (XLV of 1860)----

-----Ss. 302/324/353/34---Anti Terrorism Act (XXVII of 1997), S.7(a)---Appreciation of evidence---After arrest of accused, no identification parade was held---Complainant and other prosecution witnesses who were Police Officials had not supported prosecution case because they did not take the names of the accused before Trial Court---Recovery was of no use to the prosecution because there was no positive report to that effect--- Prosecution had failed to prove its case against the accused beyond any shadow of doubt as it was a case in which there were so many doubts benefit of which would go in favour of accused not as a matter of grace, but as a matter of right---Conviction and sentence awarded to accused by Trial Court, were set aside extending them benefit of doubt.

Najeeb Faisal Chaudhry for Appellants.

Jehangir Wahla A.A.-G. with Miss Zarqa Bashir for the State.

Date of hearing: 20th January, 2003.

2003 M L D 853

[Lahore]

Before Mian Muhammad Jahangier, J

LIAQAT HAYAT and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Defence Rawalpindi/Islamabad and others---Respondents

First Appeal from Order No.5 of 1992, decided on 4th June, 2002.

Land Acquisition Act (I of 1894)---

----S.9---Defence of Pakistan Ordinance (XXX of 1971), Ss. 18, 19 & 20---Defence of Pakistan Rules, 1971, R.121---Requisition of property--­Notification was published on 22-11-1976 whereas award was announced by District Magistrate on 26-9-1991 directing Tehsildar to effect mutation in Revenue Record and make payment of assessed compensation to landowners---Contention of appellants (landowners) was that they came to know in year 1989 about acquisition of their land; that no steps had been taken to determine compensation; and that land remained in their physical possession, meaning thereby that notification had never been implemented---Validity---Land had been requisitioned and acquired in accordance with S.19 of the Defence of Pakistan Ordinance, 1971 for one of the objects as given in R.121 of the Defence of Pakistan Rules, 1971---Notice as required by R.121(2) had been served on owners---Award was not under relevant provisions of the Defence of Pakistan Ordinance as under S.18, of the said Ordinance amount of compensation was to be settled either through an agreement or through an arbitrator qualified to be appointed as Judge of High Court--­Award showed that compensation had already been settled by Commissioner through order dated 15-10-1989, which order had not been challenged at any forum---Not clear from the record as to what was the settlement between parties before Commissioner--Determination about knowledge of appellants required recording of evidence, which was not possible either at appeal stage or by treating appeal as writ petition as same was suffering from laches---Tubewells had been constructed over acquired land and were in operation---Award dated 26-9-1991 was an order on administrative side, and thus, by treating same as if given by an arbitrator, no appeal or writ petition could be filed at such belated stage in order to challenge notification published in year 1976---Appellants could not point out any illegality in process of requisition and acquisition---Releasing land .from requisition depended upon determination of question of necessity requiring recording of evidence---High Court dismissed appeal/petition being not maintainable while observing' on moral side that if possible, land lying vacant or which was not in use at present or in future might be given to owners permanently or on lease for purpose of cultivation or for any other object acceptable to respondents.

1999 SCMR 2189; Muhammad Awais Khan and others v. Pakistan and 2 others 1989 MLD 3011; Col. Bashir Hussain and 10 others v. Land Acquisition Collector, Lahore Improvement Trust, Lahore and 2 others PLD 1970 Lah: 321; Abdul Ghani and another v. Province of Baluchistan and 2 others, PLD 1982 Quetta 63; Samir Kumar Choudhury and another v. The Province of East Pakistan and 2 others PLD 1968 Dacca 41; Arab and 36 others v. Pakistan through Secretary, Ministry of Defence, Islamabad and 3 others 1992 MLD 1126; Lahore Improvement Trust v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others PLD 1970 Lah. 257; Mian Muhammad Nazeer and another v. The Land Acquisition Collector, Lahore Improvement Trust, Lahore and 2 others 1980 CLC 687; Sh. Ata Muhammad v. Zubair Mahmood Khan and 7 others 1980 CLC 446; The Ramjas Foundation and others v. Union of India and others 1993 PSC 1115 (SC of Ind.) and Sona and another v. The State and 3 others PLD 1970 SC 264 ref.

M. Bilal and Babar Bilal for Petitioners.

Tanveer-ul-Salam for Respondent

Date of hearing: 4th June, 2002.

2003 M L D 874

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD KHALID---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.20-Q of 2003, decided on 5th March, 2003.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss. 409/468/471---Prevention of Corruption Act (II of 1947), S.5(2)---West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961), S.8---Petition for quashing of proceedings---Proceedings were sought to be quashed on grounds, firstly that it being a scheduled offence, local police had no jurisdiction to register a case and submit challan; secondly that no case had been made out against the accused; and thirdly that proceedings could be quashed even after framing of the charge in the case---Validity---Registration of cases at the ordinary Police Stations, was not illegal as S.8 of West Pakistan Anti-Corruption Establishment Ordinance, 1961 had provided that provisions of said Ordinance, were in addition to and not in derogation of any other law for the time being in force which would mean that all the provisions of Criminal Procedure Code were kept intact---Contentions that case against public servant could not be registered at the ordinary Police Station and without approval of senior Police Officers and that no offence had been made out from allegations against the accused, had no force as Trial Court had already framed the charge---Accused could seek amendment in the charge at any stage under the law and judgment was to be pronounced on the basis of evidence recorded by the Trial Court---High Court, no doubt, had got inherent jurisdiction to quash proceedings even after framing of charge, but in the present case sufficient material was available on record against the accused---No jurisdictional defect was found in proceedings pending before Trial Court---Petition for quashing proceedings, was dismissed, in circumstances.

Muhammad Afzal and 2 others v, Muhammad Siddique Girwa and 3 others 1992 MLD 311; Muhammad Hafeez and 2 others v. The State and another 1999 MLD 1174; Muhammad Iqbal, A.S.-I. v. Station House Officer, Police Station New Anarkali, Lahore and 2 others 2000 PCr.LJ 1924; Bashir Ahmed v. The State 2002 MLD 746; Syed Murad Ali Shah and others v. Government of Sindh through Home Secretary and 7 others PLD 2002 Kar. 464; Maqbool Rehman v. The State and others 2002 SCMR 1076; Muhammad Sharif v. Station House Officer, Police Station City, Hafizabad and another PLD 1997 Lahore 692; Mirza Muhammad Iqbal and others v. Government of Punjab PLD 1999 Lah. 109 and Shafaqat Hussain and another v. Malik Sarfraz, Inspector/Circle Officer, Anti-Corruption Establishment, Hafizabad and another 2000 PCr.LJ 1995 ref.

Syed Zamir Hussain Zaidi and Muhammad Hanif for Petitioner.

Najeeb Faisal Chaudhry, Addl. A.-G.

2003 M L D 878

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD YAR---Petitioner

Versus

MEHMOOD and 2 others---Respondents

Civil Revision I4o.526 of 1996, heard on 30th July, 2002.

Specific Relief Act (I of 1877)---

----Ss.12 & 27(b)---Suit for specific performance of agreement of sale--­Plaintiff had" claimed that owner of suit-land had sold out land to him after receiving amount as earnest money, but as suit-land was pledged with Bank, sale-deed could not be executed and same was to be executed and completed on redemption of the land---Land was redeemed and plaintiff was ready to pay remaining amount of consideration but owner of suit-land refused to complete the sale and instead alienated suit-land in favour of another person who further sold the same to another person--­Plaintiff in his suit for specific performance of agreement had claimed that subsequent two mutations of sale in favour of other two persons who had been arrayed as defendants in suit should be set aside as suit-land had already been sold out to him---Trial Court in its judgment had observed that agreement of sale in favour of plaintiff had stood proved, but subsequent vendees/defendants had no knowledge of previous agreement of sale arrived at between plaintiff and owner of suit-land--­Trial Court declared subsequent vendees/defendants as bona fide purchasers and treated suit of plaintiff as money suit and awarded decree for amount which plaintiff had paid to owner of suit-land as earnest money and suit against subsequent vendee was dismissed by Trial Court---Appellate Court reversed the finding of Trail Court ---Validity--­Subsequent vendees had stated on Oath that they had no knowledge of previous agreement of sale arrived at between the plaintiff and owner of suit-land but plaintiff had not appeared in rebuttal to discharge onus of proving that subsequent vendees of suit-land had knowledge of said previous agreement---Trial Court, in circumstances, was right in decreeing the suit of plaintiff to the extent of amount of earnest money which admittedly was paid by him to owner of suit-land and had rightly dismissed his suit against subsequent vendees---Appellate Court having not appreciated evidence on record in its true context and having not interpreted provisions of S.27(b) of Specific Relief Act, 1877, properly, order of Appellate Court through which appeal filed by plaintiff against judgment of Trial Court was accepted, was set aside by High Court and judgment and decree passed by Trial Court, were restored.

Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25 and Muhammad Ashraf v. Ali Zaman and others 1992 SCMR 1442 ref.

G.H. Khan for Petitioner.

Zahid Hussain Khan for Respondents.

Date of hearing: 30th July, 2002.

2003 M L D 884

[Lahore]

Before Abdul Shakoor Paracha, J

Raja MUHAMMAD AFZAL---Petitioner

Versus

Malik MUHAMMAD MOAZAM and 15 others---Respondents

Civil Revision No.2792 of 1996, heard on 5th August, 2002.

Partition Act (IV of 1893)---

----S.4---Suit for partition---Plaintiff claimed that suit property was joint with defendants---Evidence on record had established that respective properties hats been transferred with specific boundaries separately by Settlement Authorities in favour of the parties---Property which was purchased by plaintiff through open auction was transferred to plaintiff with specified area and specific boundaries and other property with specific boundaries was transferred to defendants who further sold the same Courts below, in circumstances, were right in holding that property had already been partitioned and parties were not joint owners of suit property ---Unity of title and unity of possession was condition precedent for bringing a suit for possession through partition--­Concurrent finding of fact against plaintiff on basis of evidence recorded by Courts of competent jurisdiction, could not be interfered with by High Court in exercise of its revisional jurisdiction.

Syed Mohsin Raza Bukhari and 4 others v. Syeda Azra Zenab Bukhari 1993 CLC 31 ref.

Abdul Majeed Khan for Petitioner.

C.M. Sarwar for Respondents.

Tahir Ahmad Khan for the Bank.

Date of hearing: 5th August, 2002.

2003 M L D 898

[Lahore]

Before Jawwad S. Khawaja and Abdul Shakoor Paracha, JJ

FARIDA KHATOON---Appellant

Versus

Dr. MASOOD AHMAD BUTT and 4 others---Respondents

Regular First Appeal No.499 of 2000, heard on 29th May, 2002.

Administrative suit----

----Suit for administration of estate and rendition of accounts---Owner of property died issueless leaving behind a widow, one brother and four sisters as his legal heirs entitled to inherit his estate in accordance with Islamic Law of Inheritance---Brother and sisters of deceased filed a suit seeking administration of estate of deceased comprising of land together with residential house constructed thereon and also sought rendition of accounts---Widow of deceased resisted suit contending that one-half of the said property was conveyed to her by way of gift executed by her deceased husband during his lifetime ---Hibanama produced by defendant widow in proof of her claim with regard to gift of half of property in her favour, had been proved to be true---Plaintiffs also had not disputed said claim of defendant widow---Plaintiffs, in circumstances, could not have any claim in respect of said one-half of property of deceased---Defendant widow had also claimed that other half of property of deceased had also stood vested in her as deceased before his death had also executed a registered document which though was termed as `Wasiatnama', but in fact was a gift in her favour---Said document was executed on Rs.10 Stamp Paper and was registered and contents of said Wasiatnama had clearly shown that it could not by any stretch of reasoning, be construed as a gift in favour of defendant widow---Trial Court held plaintiffs entitled to 3/4th of mesne profits of property 6f deceased mentioned in said Wasiatnama---Trial Court had given that finding even though according to Trial Court itself plaintiffs had not produced any evidence to support their claim---Said finding of Trial Court was reversed in appeal by Appellate Court, but finding of Trial Court that deceased was owner of suit property at time of his death, was upheld in appeal by Appellate Court.

Abdul Hameed and 23 others v. Muhammad Mohiyddin Siddique Raja and 3 others PLD 1997 SC 730 ref.

Mirza Hafeez-ur-Rehman for Appellant.

Ch. Shah Muhammad for Respondents.

Date of hearing: 29th May, 2002.

2003 M L D 902

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

KHALID MASIH and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.504, 512 and Murder Reference No.356 of 1998, heard on 15th January, 2003.

Penal Code (XLV of 1860)---

----Ss.302/365/34---Appreciation of evidence---Matter was reported to police ten days after occurrence through a written complaint---Nobody had seen accused committing murder of deceased---Evidence of last seen was furnished by brother of deceased and two other prosecution witnesses--Brother of deceased did not state even a single word about having last seen deceased in company of accused though in the complaint it was stated that he alongwith others had seen deceased in the company of accused, but that witness was declared as hostile---Other alleged two witnesses did not state as to when they had seen the deceased in the company of the accused---Statement of one of the witnesses was recorded about one and a half months from alleged occurrence when dead body of deceased was recovered and that witness was not mentioned as a witness in F.I.R. having seen deceased in the company of the accused though prosecution had claimed him to be a star witness---Shop of said witness was at a distance of 50 miles from place of occurrence which in the locality normally opened at 9/10 a.m. and closed at 8/9 p.m. whereas said witness had claimed that he had seen deceased in the company of accused at 5-30 p.m. which was not plausible---Presence of said witness at the place where he had allegedly last seen the deceased in the company of accused, was against ordinary course of working hours---Other witness was also declared hostile---Dead body was not recovered on the pointation of accused, rather the same was not identified---Only mark of identification of dead body was blood-stained clothes which deceased was wearing at the time of occurrence--Clothes of deceased had a sticker of tailor, but said tailor who was produced as prosecution witness, had stated that he did not know as to whose dead body it was--­In absence of report of Serologist, recovery of blood-stained clothes had lost its significance--No motive was alleged in the F. I. R. ---Alleged extra-judicial confession of accused was joint---Dead body of deceased having remained unidentified, it could not be said that ocular account was corroborated by medical evidence---Prosecution had failed to prove its case against accused and there were doubts in the prosecution story--­Benefit of doubt, in circumstances, was to be given to accused not as a matter of grace, but as a matter of right---Conviction and sentence recorded against accused, by Trial Court, were set aside and accused were acquitted of the charge.

Mian Jamil Akhtar for Appellants.

Miss Nausheen Taskeen for the State.

Date of hearing: 15th January, 2003.

2003 M L D 906

[Lahore]

Before Mian Hamid Farooq, J

MUHAMMAD AKBAR and another--- Petitioners

Versus

MUHAMMAD RAFIQUE---Respondent

Civil Revision No.569-D of 1995, heard on 10th April, 2002.

Punjab Pre-emption Act (IX of 1991)---

----Ss.6 & 13---Suit for pre-emption ---Making of Talbs, proof of--­Plaintiff though had mentioned in the plaint that he had made 'Talb-e-­Muwathibat' in Majlis, but he failed to give any date of making the said Talb---Plaintiff was required to have given specific date of making Talb-­e-Muwathibat in plaint giving names of persons before whom said Talb was made, but he had not done the same---Plaintiff, in circumstances, had failed to make Talb-e-Muwathibat within parameters of law---When date of Talb-e-Muwathibat was not determined, plaintiff could not prove that he made `Talb-e-Ishhad' within a stipulated period of two weeks from date of making Talb-e-Muwathibat--- Plaintiff even in pleadings as well as through production of evidence, had failed to give any date for issuing registered notice to defendant vendee and vendor with regard to Talb-e-Ishhad--- Plaintiff, in circumstances, could not prove that he had made Talb-e-Ishhad within stipulated period prescribed under law ---Talb­e-Ishhad was to be attested by two truthful witnesses, 'but notice of making Talb-e-Ishhad found in registered envelope which was opened by Trial Court, though showed the names of two witnesses, but they were not produced in the Court by plaintiff---Even the counsel who issued said notice was not produced in evidence---Trial Court, in circumstances; had rightly dismissed the suit and Appellate Court was not justified to set aside the judgment and decree passed by Trial Court---High Court set aside judgment and decree passed by Appellate Court and restored that of Trial Court---Suit filed by plaintiff stood dismissed.

Ch. Manzoor Hussain Basra for Petitioner.

Muhammad Khalid Latif for Respondent.

Date of hearing: 10th April, 2002.

2003 M L D 911

[Lahore]

Before Khawaja Muhammad Sharif and Rustam Ali Malik, JJ

MUHAMMAD YASEEN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.854 of 1995 and Murder Reference No.24 of 1996, heard on 3rd December, 2002.

Penal Code (XLV of 1860)---

----Ss.302(a), 311 & 397---Criminal Procedure Code (V of 1898), S.345---Appreciation of evidence---Compromise---Compromise was arrived at between legal heirs of deceased and the accused during Pendency of appeal against conviction and sentences of accused recorded by Trial Court, whereby legal heirs of deceased, except the minor legal heirs of one of the deceased had compromised with the accused and had forgiven the accused in the name of God without getting any compensation---Validity---Death sentence awarded to the accused by the Trial Court thus could not be confirmed and same was converted into 14 years' R. I. under S. 311, P. P. C. ---Accused was also to pay the 'Diyat' amount to minor legal heirs of deceased prevalent at time of occurrence.

Malik Muhammad Imtiaz Mahal for Appellant.

Jahangir Wahla, A.A.-G. with Mrs. Saaddiqa Altaf for the State.

Date of hearing: 3rd December, 2002.

2003 M L D 915

[Lahore]

Before Farrukh Lateef, J

KHAN MUHAMMAD --- Petitioner

Versus

GOVERNMENT OF PAKISTAN, MINISTRY OF MINORITIES AFFAIRS and others---Respondents

Writ Petition No.7114 of 2002, decided on 2nd September, 2002.

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

---S.164---Civil Procedure Code (V of 1908), O. IX, Rr.8 & 13--­Constitution of Pakistan (1973), Art.199---Constitutional petition--­Dismissal of revision petition for non-prosecution and application for its restoration---Revision petition was fixed four times, but on every date it was adjourned on the request of petitioner for providing correct Khasra Gardawari in his name, but he failed to do the needful---Notice was issued to petitioner about the date fixed for hearing, but he despite personal service neither appeared on the date fixed for hearing nor sent any application for adjournment on account of which revision petition was dismissed for non-prosecution---Petitioner also remained absent before the Court on the date fixed for hearing of his application for restoration of revision---Had petitioner been present on the date fixed, for hearing of application for restoration of revision, he would have definitely been heard---Reasons mentioned in the order by the Competent Authority for dismissing revision petition for non-prosecution as well as for dismissing application for restoration of revision petition were plausible---Order could not be deemed to have passed by Authority of competent jurisdiction without lawful authority on account of the fact that merits of revision petition were not discussed therein---Merits of revision petition were not required to be gone into and discussed in application for restoration of revision---Only point which required consideration in that application was whether there were good grounds for restoration of revision petition---Order passed by Competent Authority being reasonable, could not be interfered with by High Court in Constitutional petition.

Ch. Muhammad Saleem Iqbal for Petitioner.

Date of hearing: 2nd September, 2002

2003 M L D 923

[Lahore]

Before Maulvi Anwarul Haq and Parvez Ahmad, JJ

NATIONAL BOTTLERS ---Appellant

Versus

ADAM SUGAR MILLS---Respondent

Regular First Appeal No.201 of 1993, decided on 13th June, 2002.

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

----O.VII, R.2 --Suit for recovery of amount---Defendant entered into a contract with plaintiff whereby plaintiff was to supply sugar to defendant and defendant agreed to make payment according to terms of contract--­Defendant made certain payments to the plaintiff, but failed to pay the balance amount despite a notice was issued to the defendant---Plaintiff by producing evidence on record had fully proved that defendant had not paid the balance amount---Defendant could not produce any evidence in its defence despite opportunity was provided to it---Defendant had itself admitted its liability to make payment to the plaintiff---Trial Court, in circumstances, had rightly decreed the suit---Judgment and decree passed by the Trial Court could not be interfered with in appeal.

Shazaib Masud for Appellant.

Azhar Hussain Sheikh for Respondent.

Date of hearing: 13th June, 2002.

2003 M L D 926

[Lahore]

Before Parvez Ahmad, J

BASHARAT NAWAZ---Petitioner

Versus

MUHAMMAD NAZIR through Legal Heirs---Respondent

Civil Revision No.2235 of 1996, decided on 23rd August, 2002.

Punjab Pre-emption Act (IX of 1991)---

----Ss.6 & 13---Suit for pre-emption ---Making of Talbs---Plaintiff claimed superior right of pre-emption being Sharik-e-Khata and having common means of irrigation---Superior right of pre-emption of plaintiff which were established, were not denied by the defendants---Defendants took possession of suit-land on the very date of sale and raised construction thereon within 35 days of taking possession of the suit-­land---Plaintiff who belonged to the same village and was Sharik-e-Khata in suit-land had claimed that he came to know about the sale after two months from sale from other persons---Plaintiff made Talb-e-Muwathibat after six days from the date he alleged to have had knowledge of the sale---Date of knowledge as claimed by plaintiff was not proved on record---Nothing was on record that plaintiff made Talb-e-Muwathibat immediately on coming to know of sale without losing any moment--­Plaintiff having failed to establish making of Talbs in accordance with law, Trial Court was not justified to decree the suit---Appellate Court had rightly set aside judgment and decree passed by Trial Court.

Rao Munawar Khan for Petitioner.

Ch. Muhammad Afzal Wahla and Ghulam Nabi Bhatti for Respondents.

Date of hearing: 16th August, 2002.

2003 M L D 932

[Lahore]

Before Bashir A. Mujahid, J

Mst. MUSSARAT SHAHEEN --- Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION URBAN AREA, SARGODHA and 2 others---Respondents

Writ Petition No.2080 of 2003, decided on 19th February, 2003.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Quashing of F.I.R.--Petitioner contended that she had married the co-accused vide Nikahnama, but a criminal case had been registered vide F.I.R. stating therein abduction of petitioner by co-accused---Petitioner had prayed for quashing of F.I.R.--­Contention raised by petitioner required factual inquiry and collection of evidence, F.I.R., in circumstances, could not be quashed---Petitioner was directed to join the investigation and the Investigating Officer was directed to record version of the petitioner correctly and also receive documentary as well as oral evidence which petitioner would intend to Produce in her defence.

Mailk Muhammad Imtiaz Mahal for Petitioner.

Najeeb Faisal Chaudhary, A.A.-G.

2003 M L D 933

[Lahore]

Before Abdul Shakoor Paracha, J

GHULAM AHMAD---Petitioner

Versus

MUHAMMAD YOUSUF and 23 others---Respondents

Civil Revision No.418 of 2002, heard on 13th May, 2002.

Muslim Family Laws Ordinance (VIII of 161)---

----S.4---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan (1973), Art.203-D(2)---Inheritance---Suit for declaration---Trial Court decreed the suit holding that plaintiffs being children of predeceased sons/daughters of original owner of suit-land were entitled to inherit their shares alongwith other children of deceased owner---Appellate Court set aside judgment and decree of the Trial Court and dismissed the suit on the ground that S.4 of Muslim Family Laws Ordinance, 1961 had been declared against Injunctions of Islam by the Federal Shariat Court---Validity---Relevant mutation of the property in dispute was sanctioned long before the judgment of Federal Shariat Court, wherein S.4 of Muslim' Family Laws Ordinance, 1961 was declared against the Injunctions of Islam---Said case of the Federal Shariat Court had no effect on the present case in circumstances---Appellate Court having committed material irregularity by misinterpreting S.4 of Muslim Family Laws Ordinance, 1961, judgment and decree passed by it, were set aside and that of Trial Court decreeing suit filed by plaintiff, was restored.

Mst. Saima Naz v. Sh. Pervaiz Afzal 2002 SCMR 164; Muhammad Ali and others v. Muhammad Ramzan and others 2002 SCMR 426 and Allah Rakha and others v. Federation of Pakistan and others PW 2000 FSC 1 ref.

Nisar Ahmad Baig for Petitioner.

Mian Shah Abbas for Respondents.

Date of hearing: 13th May, 2002.

2003 M L D 937

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD NAZIR---Appellant

Versus

MUHAMMAD SHER and 4 others---Respondents

Criminal Appeal No. 1850 of 2002, decided on 21st February, 2003.

Criminal Procedure Code (V of 1898)---

----S. 417---Penal Code (XLV of 1860), Ss. 337-A(ii),(iii)/337-L-B/34--­Appeal against acquittal---While the case was under trial, appellant had himself filed application before High Court and got directions that Trial Court should conclude the trial within six months---Trial Court, a Judicial Magistrate Section 30, Cr.P.C. was under legal obligation to comply with order of High Court---Many opportunities were granted to the prosecution to produce evidence, but prosecution failed to produce witnesses in the Court after direction of High Court obtained by appellant himself, and accused was acquitted; no case for interference by the High Court was made out---Appeal, was dismissed, in circumstances.

C.M. Latif Rawn for Appellant.

Malik Muhammad Imtiaz Mahl for Respondents.

Mrs. Irum Sajjad Gul for the State.

2003 M L D 939

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Pervaz Ahmed, JJ

AKHTAR RASOOL CHAUDHRY---Appellant

Versus

RETURNING OFFICER, N.A. 122 LAHORE-5 and 4 others---Respondents

Election Appeal No.42-R of 2002, heard on 11th September, 2002.

(a) Words and phrases----

----'Moral turpitude', meaning and scope.

Imtiaz Hussain Phulto v. Returning Officer 1987 SCMR 468 and Muhammad Shabbir Abbasi v. Abdul, Rasheed Mughal 1984 CLC 270 ref.

(b) Representation of the People Act (LXXXV of 1976)---

----S. 99(1-A)(h)---Conduct of General Elections Order [Chief Executive's Order No.7 of 2002], Art. 8D(2)(h)---Rejection of nomination papers---Nomination papers of candidate who was sitting Member of Provincial Assembly were rejected alongwith others on allegation that he atongwith others stormed building of the Supreme Court of Pakistan during Court proceedings---Having forced their entry into the Court premises, they raised slogans against sitting Chief Justice of Pakistan... Conduct of candidate being Member of Provincial Assembly, on face of it, was sufficient to shock moral conscience of Society in general and also hag shown that he was a man of depraved character---Case of candidate fell within ambit of Cl. (h) of S.99 (1-A) of Representation of the People Act, 1976 as well as Art. 8D(2)(h) of Conduct of General Elections Order, 2002---Nomination of papers of candidate, in circumstances, were rightly rejected by Returning Officer.

Rashdeen Nawaz Kasuri for Appellant.

Hafiz Abdul Rehman Ansari, Ch. Muhammad Hanif Khattana, Addl. A.-G. and Dr. Danishmand Malik, Deputy Attorney-General for Respondents.

Date of hearing: 11th September, 2002.

2003 M L D 943

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD NAWAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.319-J and 1476 and Criminal Revision No.801 of 2001, heard on 3rd October, 2002.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Complainant admittedly was not the resident of the place of occurrence---Incident had taken place in dark hours of the night---Complainant by making an improvement at the trial had, for the first time, introduced torch in the light of which he had identified the accused, but this torch was neither mentioned in the F.I.R. nor it was produced before the police during investigation---Seven persons had allegedly made indiscriminate firing at the time of occurrence, but no crime empty was recovered from the spot---Three co­-accused had been acquitted by Trial Court--- Dishonesty of prosecution was also apparent from the fact that an effort was made during the trial to bring the ocular account in line with medical evidence--Prosecution had failed to prove the motive for the occurrence---No crime empty having been secured from the place of incident, recovery of the guns was of no consequence---Presence of eye-witnesses on the spot at the relevant time was doubtful---Accused were extended the benefit of doubt and acquitted in circumstances.

Syed Zahid Hussain Bukhari for Appellant.

Malik Muhammad Aslam for the State.

M. Yaqoob Pannu and Ch. Ashiq Hussain for the Complainant.

Date of hearing: 3rd October, 2002.

2003 M L D 951

[Lahore]

Before Maulvi Anwaral Haq, J

MUHAMMAD SHAFIQUE KHAN---Petitioner

Versus

SAEED AKHTAR KHAN and 15 others---Respondents

Civil Revision No.446 of 1991, heard on 15th February, 2002.

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

----Ss.12(2). 104 & O.XLIII, R.1---Dismissal of application filed under S.12(2), C.P.C.---Restoration of---Appeal against order dismissing application for restoration---Competency---Application filed under S.12(2), C.P.C. having been dismissed, application for restoration was dismissed by Trial Court and appeal filed against order of Trial Court was also dismissed by Appellate Court with observations that said appeal was not competent--Validity---Appeal was provided only against order refusing to restore suit and not an application---Order dismissing application for restoration of the application under S.12(2), C.P.C. was not appealable under S.104 read with O.XLII, R.1, C.P.C.

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

----Ss.12(2), 115, 104 & O.XLIII, R.1 ---Conversion of second appeal into revision---Appellate Court having concluded that appeal filed before it was not competent, request was made for its conversion into revision---Appellate Court turned down the request holding that even if appeal was treated as a revision, scope would become very narrow in view of the fact that incorrect decision of the lower Court could not form subject-matter of revision petition---Validity---Such finding of Appellate Court was liable to be struck down as it was passed in direct contravention of settled law that right to invoke exercise of revisioral jurisdiction was not a privilege, but a most valuable right---Appellate Court ought to have first converted appeal into revision and then to have decided whether interference with impugned order before it was possible or not---Observations of Appellate Court that incorrect decision of Court could not form subject matter of revision was, also wholly unfounded--­Order of Appellate Court below could not be sustained---Appeal was treated as civil revision against the order passed by Trial Court dismissing application for restoration of his application under S.12(2), C.P.C. and case was remanded to decide revision in accordance with law after hearing the parties.

Karamat Hussain and others v. Muhammad Zaman and others PLD 1987 SC 139 and Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 ref.

Nemo for Petitioner.

Masood Abid Naqvi for Respondent No. 10.

Nemo for the Remaining Respondents.

Date of hearing: 15th February, 2002.

2003 M L D 954

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD ARIF---Petitioner

Versus

MAHMOOD ALI and 4 others --- Respondents

Civil Revision No. 1412-D of 1992, heard on 31st May, 2002.

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

----Ss.12 & 42---Qanun-e-Shahadat (10 of 1984), Art.79---Suit for declaration and specific performance of agreement of sale ---Allottee of suit-land in whose favour proprietary rights were transferred, had executed registered sale-deed on the same date in favour of defendant and conveyed title to suit-land in his favour---Plaintiffs had claimed that transferee of suit-land had earlier in time executed an agreement of sale in respect of suit-land in their favour after receiving earnest money--­Plaintiffs had also claimed that they were in possession of suit-land at the time of sale-deed allegedly executed by transferee in favour of defendant, thus defendant was put to notice of their interest in suit­land---Plaintiffs had contented that defendant could not claim to be a bona fide purchaser of suit-land for valuable consideration without notice of the prior right of plaintiffs who had purchased suit-land earlier to the defendant---Courts below concurrently decreed suit by plaintiffs--­Validity---Alleged agreement of sale executed in favour of plaintiffs was witnessed by two marginal witnesses, but only one appeared in the Court and no explanation had been given for not producing the other marginal witness---Requirements of Art.79 of Qanun-e-Shahadat, 1984 having not been complied with, alleged agreement of sale could not be relied upon as evidence---Witness produced as marginal witness also did not qualify as a marginal witness as there was difference in statement of said witness and the plaintiffs with regard to amount of consideration---Stamp paper for alleged agreement was purchased two years prior to execution of agreement and said stamp paper proved to have been purchased for other person and names of parties were forged therein---Such circumstance had clearly undermined the authenticity of the alleged agreement of sale--­Courts below were not legally justified in placing reliance on statement of original transferee of suit-land who resiled subsequently from his statement made in his written statement---Courts were not legally justified to decree the suit in view of such discrepancy--Courts having acted with material irregularity in exercise of their jurisdiction, concurrent judgment of Courts was set aside by High Court, in exercise of its revisional jurisdiction.

Mst. Surraya Begum and others v. Mst. Suban Begum and others 1992 SCMR 652 ref.

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

----O.VI, R.2---Qanun-e-Shahadat (10 of 1984), Art. 117--Far --Proof--Material facts, had to be alleged, first in the pleadings of a party and only thereafter same had to be proved.

Budho and others v. Ghulam Shah PLD 1963 SC 553 and Sar Anjam v. Abdul Raziq 1999 SCMR 2167 ref.

Kh. Muhammad Farooq for Petitioner.

Rana Muhammad Zahid Khan for Respondents Nos. 1 to 4.

Date of hearing: 31st May, 2002.

2003 M L D 959

[Lahore]

Before Bashir A. Mujahid, J

ALLAY YAR alias MUHAMMAD YAR and another---Petitioners

Versus

THE STATE---Respondent

Criminal Revision No. 1101 of 2002, heard on 25th February, 2003.

Penal Code (XLV of 1860)---

----Ss. 354/447---Criminal Procedure Code (V of 1898). S.439--­Appreciation of evidence---Sentence, reduction in---Trial Court convicted and sentenced the accused under Ss. 354 & 447, P.P.C.--Appellate Court set aside conviction of accused under S.447, P.P.C., but maintaining conviction of accused under S.354, P.P.C., reduced the sentence from one year R.I. to six months' R.I.---Accused did not challenge said conviction, but had prayed for reduction in sentence contending that offence against the accused was not heinous and the accused were not previous convicts and also had no criminal history--Validity- --Accused had no previous criminal history and occurrence had taken place due to civil litigation-- Accused had already undergone sentence for a period of four months ---Maintaining conviction, sentence was reduced to already undergone.

Malik Muhammad Imtiaz Mahal for Petitioners.

Haji Ghulam Asghar for the State.

Date of hearing: 25th February, 2003.

2003 M L D 961

[Lahore]

Before Abdul Shakoor Paracha, J

SHAH WALAYAT and 3 others---Petitioners

Versus

MUHAMMAD AKRAM and another---Respondents

Civil Revision No. 873-D of 1997, heard on 9th August, 2002.

Civil Procedure Code (V of 1908)---

--- O.XXIII, R.I, O.II, R.2 & O.VII, R 11---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction--­Rejection of -plaint---Order passed by Authority was challenged by plaintiffs through an earlier suit which was withdrawn by the plaintiffs without any condition and same was dismissed being withdrawn--­Plaintiffs, in circumstances, were precluded for filing subsequent suit on the same cause of action after withdrawing earlier suit unconditionally under O. XXIII, R.1, C.P.C. and subsequent suit was barred under Cl.(d) of R.11 of O.VII, C.P.C.---Merely referring wrong provision of O.II, R.2, C.P.C. would not mean that suit filed by plaintiffs could proceed---Trial, Court rightly dismissed the suit arid Appellate Court was not justified to remand the case after setting aside judgment and decree passed by Trial Court---Order of remand passed by Appellate Court was set aside in revision by High Court and order of Trial Court was restored.

PLD 2000 SC 820 ref.

Nemo for Petitioners.

Amanullah Bajwa for Respondents.

Date of hearing: 9th August, 2002.

2003 M L D 966

[Lahore]

Before Mian Hamid Farooq and Parvaz Ahmad, JJ

Syed MUHAMMAD RAFIQ SHAH---Appellant

Versus

Syed FIDA HUSSAIN SHAH---Respondent

Regular First Appeal No.309 of 1999, heard on 23rd July, 2002.

Civil Procedure Code (V of 1908)---

----O.VII, R.2---Limitation Act (IX of 1908), S.19 & Art.57---Suit for recovery of amount---Limitation---Defendant who was involved in certain criminal cases received amount from the plaintiff during period from 1984 to 1987---After release of the defendant, when plaintiff demanded amount from him, defendant acknowledged his liability to pay .amount by executing acknowledgement bond dated 29-2-1988--­Defendant having not paid amount according to acknowledgement bond, plaintiff served legal notice on defendant after about 3 years and 9 months of execution of acknowledgment bond and filed suit after 3 years and 10 months from the execution of acknowledgement bond---Where before expiry of period prescribed for a suit, if any party would acknowledge his liability in writing signed by him, then a fresh period of limitation would be counted from time when acknowledgement bond was signed under S.19, Limitation Act, 1908---Suit for recovery of money received on loan could be filed within a period of three years from date the loan was made---Execution of acknowledgement bond, though was denied by defendant alleging the same as fictitious and forged but if same was taken to be a valid document, even then payments allegedly received beyond period of 3 years computed from date of execution of acknowledgment bond could not be recovered as the same had become barred by time---Trial Court, in circumstances had rightly dismissed the suit as barred by time.

Makhdoom Ghulam Shabbir for Appellant.

Nemo for Respondent.

Date of hearing: 23rd July, 2002.

2003 M L D 970

[Lahore]

Before Sayed Zahid Hussain, J

ALLAH RAKHA and another---Petitioners

Versus

MUHAMMAD ARIF---Respondent

Civil Revision No.767 of 1995, heard on 26th August, 2002.

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

----S.55---Suit for mandatory injunction---Plaintiff was to succeed on strength of his own case, if duly proved and not on the weakness of the case of his opponent.

Aziz Ullah Khan and others v. Gul Muhammad Khan 2000 SCMR 1647; Muhammad Ahsan and 5 others v. Daulat Khan and another 2002 CLC 66; Municipal Committee, Murree through Administrator v. Homi Jamshed Kaikobad 2001 CLC 935; M.C. Leiah v. Sh. Zafar Iqbal 1986 CLC 2306 and Nasir Mia Maji alias Nasir Mia v. Probode Ranjan Paul PLD 1968 Dacca 270 ref.

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

----S.115---Revisional jurisdiction, exercise of--Where illegality and material irregularity was committed by Courts below, findings of such Courts even if concurrently recorded, would have no sanctity in law--­Concurrent judgments of Courts below suffering from illegality and material irregularity, could not be sustained and was liable to be set aside.

Muhammad Ghani and Muhammad Akhtar for Petitioners.

Malik Rashid Anwar for Respondent.

Dates of hearing: 22nd and 26th August, 2002.

2003 M L D 973

[Lahore]

Before Asif Saeed Khan Khosa, J

ZAHID MAHMOOD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5420-B of 2002, decided on 12th September, 2002.

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

-----S. 497(2) offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) S. 10---Bail, grant of---Further inquiry ---F.I.R. had been lodged with a delay of three days and original F.I.R. in the case contained interpolations regarding date of alleged occurrence--Alleged victim girl according to the F.I.R. was unmarried at the time of occurrence, but Medico-legal Report had shown otherwise-- Alleged victim as per the F.I. R. had been subjected to Zina-bil­-Jabr by-two culprits including the accused, but according to Medico-legal Report, victim had not sustained any injury on any part of her body---No report of Chemical Examiner was available regarding vaginal swabs of alleged victim---Background of ill-will and bitterness being present between the parties, assertion of the accused regarding his false implication in the case of that nature could not be without any basis---Finding of innocence of the accused recorded by two successive Investigating Officers had assumed a great significance, in circumstances.---Nothing remained to be recovered from the custody of the accused and investigation of the case had already been finalized---Continued custody of the accused in. jail, was not likely to serve any beneficial purpose--­Case against the accused called for further inquiry into guilt of accused within purview of S. 497(2), Cr.P.C.---Accused was admitted to bail, in circumstances.

Muhammad Akbar Awan for Petitioner.

Rana Muhammad Yaqoob Joyia for the Complainant.

Abaid-ur-Rehman for the State.

2003 M L D 976

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD ASLAM---Petitioner

Versus

DISTRICT JUDGE, BAHAWALPUR and others---Respondents

Writ Petition No.5200 of 2000/BWP, decided on 2nd September,2002.

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

----S.5 & Sched.---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Suit for dissolution of marriage on ground of Khula'---Family Court decreed the suit subject to return of house by wife---Appellate Court waived such condition---Contention of husband was that house purchased by him during subsistence of marriage was only benami in wife's name---Validity---Benefits derived by wife on account of marriage were to be returned as consideration of Khula'--­House could not be returned as consideration of Khula', unless and until same was proved to be a benami transaction---Husband had already filed civil suit in respect of the house, and if he was proved to be true and actual owner of house and wife as benamidar, then law would take its own course---Appellate Court had rightly waived the condition---High Court dismissed Constitutional petition.

Shamsher Iqbal Chughtai for Petitioner.

Malik Muhammad Nawaz Nizami for Respondent No.3.

2003 M L D 977

[Lahore]

Before Mrs. Nasira Iqbal, J

ATA MUHAMMAD ---Petitioner

Versus

RABIA BIBI and others---Respondent

Writ Petition No. 12407 of 2000, decided on 1st July, 2002.

Guardians and Wards Act (VIII of 1890)---

----S. 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minors---Father of minors who was simply a watch keeper had been posted in different places in course of his duties and his mother had died---Mother of minors, though had re-married, but she was living close to her own mother i.e. maternal grand-mother, of the minors with whom both the minors were currently residing---If the mother of the minors would lose her entitlement to custody of minors, the person next entitled to their custody would be the maternal grandmother and on her failure, the paternal grandmother would be entitled for custody in case of female children---Paternal grandmother of the female minor being not alive, her custody would be with her mother/maternal grandmother--­Male minor had expressed. his preference to remain, with his mother---Minor had remained with their mother since their birth and their father had not taken any serious interest to their upbringing courts below in circumstances, had rightly given custody of minors to their mother--­Concurrent findings of both Courts below based on proper appreciation of evidence and not suffering from any infirmity, could not be interfered with by High, Court in exercise of its Constitutional jurisdiction.

Ameer Mai v. Ahmed Ali 1986 CLC 846 ref.

Akhtar Masood Khan for Petitioner.

Zahid Hussain Khan for Respondent No. 1.

2003 M L D 988

[Lahore]

Before Mian Muhammad Jahangier and M.A. Shahid Siddiqui, JJ

MUSHTAQ AHMAD and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.755 of 1999, heard on 20th November, 2002.

Penal Code (XLV of 1860)---

----Ss. 302(b)/324/337-F(iii)---Appreciation of evidence- --Sentence, reduction in---No serious dispute existed about time of occurrence and the time of recording the formal F.I.R. at the Police Station--- F. I. R. was promptly lodged---Ocular account was furnished by four witnesses out of whom two were injured witnesses---Said witnesses were residents-of the same locality and nothing was on record to believe that they were not present at the spot---Statements of witnesses were quite consistent on all material aspects of the case and same were corroborated by the medical evidence---Availability of electric light was shown at the spot, parties were known to each other, but any independent witness including the owner of the shop at the place of occurrence appeared to be not available at the relevant time---Defence version that due to injury sustained by one of the accused, complainant party could be aggressor, had no force because injury allegedly sustained by the accused proved to be self­ suffered---Trial Court, in circumstances, had rightly found that prosecution had established its case---Motive as given by the complainant or explained in statements at trial, however, was sufficient to take lenient view in case of sentence of death- awarded by the Trial Court to the accused---Maintaining conviction, sentence of death was reduced to imprisonment for life.

Hafiz Abdul Rehman Ansari for Appellants.

Muhammad Anwar Tiwana for the State.

Date of hearing: 20th November, 2002

2003 M L D 1002

[Lahore]

Before Tanvir Bashir Ansari, J

Captain MUHAMMAD TAHIR CHAUDHRY TI(M) PN---Petitioner

Versus

Mst. ZARTAJ KHANUM and others---Respondents

Writ Petition No. 1654 of 2000, decided on 21st October, 2002.

Guardians and Wards Act (VIII of 1890)---

----Ss. 12 & 25---Constitution' of Pakistan (1973), Art. 199--­Constitutional petition---Custody of minor---Welfare of minor---Plaintiff husband had divorced defendant wife and spouses had two minor girls and one minor son---Plaintiff filed suit for custody of minors and alongwith suit he had also filed an application under S. 12 of Guardians and Wards Act, 1890. for interim custody. of minor children---Family Court vide its interim order decided that minor daughters would remain in the custody of plaintiff while minor son would remain in custody of defendant---Family Court found that plaintiff who was drawing substantial salary being a captain in Pakistan Navy was maintaining children in his custody and that both daughters in his custody were receiving education in reputed educational institution--- Family Court also found that as minor son was more than seven years of age, presumption according to personal law of plaintiff, was that the welfare of the minor son lay in custody with father---Family Court, in 'circumstances, found that welfare of minors lay with the father---Appellate Court' without adverting to the main question regarding welfare of minors, set aside judgment of Family Court---Family Court had considered respective evidence produced by the parties and had come to a positive conclusion that plaintiff was entitled to the custody of the minor son and to come to that conclusion, status of the plaintiff, his emoluments, the fact that minor daughters in his custody were receiving good education and were being looked after properly, were considered by Family Court--­Appellate Court on the other hand found itself focused upon findings of Family Court on issue regarding illiteracy and immoral character of defendant without taking into consideration welfare of minors---Appellate Court below while reversing findings of Trial Court based its findings on factors which did not put in juxtaposition the respective qualifications of the parties, so far as it directly related to the welfare of the minors--­Judgment of Trial Court which was a well considered judgment was erroneously set aside by Appellate Court below on extraneous considerations---High Court set aside judgment of Appellate Court in circumstances.

Babar Bilal for Petitioner.

Nemo for Respondents.

Date of hearing: 21st October, 2002.

2003 M L D 1006

[Lahore]

Before M. Naeemullah Khan Sherwani, J

ASIF PERVAIZ and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2043-B of 2002, decided on 8th April, 2002

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.362 & 364---Interim anticipatory bail, confirmation of---Repeated investigations by different investigators had been carried out and stand of Police was that no reliable evidence was available on basis. of which arrest of the accused could be made---Police was not sure of the guilt of the accused for want of evidence and the accused had been constantly joining investigation--­Arrest of the accused, in circumstances, was not absolutely vital--­Interim anticipatory bail already allowed to the accused, was confirmed, in circumstances.

Miss Gulzar Butt for Petitioners.

A.H. Masood for the State.

Ch. Muhammad Amin Javed for the Complainant.

2003 M L D 1008

[Lahore]

Before Muhammad Khalid Alvi, J

COLONY TEXTILE MILLS LTD. ISMAILABAD, MULTAN through FACTORY MANAGER---Petitioner

Versus

CHIEF EXECUTIVE, MULTAN ELECTRICITY POWER COMPANY LTD., MULTAN --- Respondent

Writ Petition No.3197 of 2002, heard on 22nd May, 2002.

Electricity Act (XI of 1910)---

----S.26-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition.-- -Allegation of theft of electricity---Checking of meter--­Competent Authority to check meter---Supreme Court had referred the matter to. Chief Executive of the Electric Supply Company with directions. that he would determine dispute in accordance with law after associating both the sides in the process of checking the meter and other disputed apparatus and also after giving opportunity of hearing to both the sides and that any party feeling aggrieved by the decision of the Chief Executive, could redress his grievance in accordance with law--­Chief Executive of the Electric Supply Company who was seized of the matter under order of the Supreme Court, gave decision one day before the institution of Constitutional petition by the consumer---Decision having already been taken and delivered by Chief Executive under the order of the Supreme Court, Constitutional petition subsequently instituted was infructuous from its very inception and petitioner had his remedy elsewhere and not before the High Court---Allegation of theft having been levelled against petitioner, under provisions of S.26-A of Electricity Act, 1910 it was only the functionary of licensee who could examine and check meter and not Electric Inspector.

PLD 1995 Lah. 56 ref.

Raja M. Akram and Mian Rafique Mughis Sh. for Petitioner.

Muhammad Qasim Khan for Respondent.

Date of hearing: 22nd May, 2002.

2003 M L D 1012

[Lahore]

Before Mian Muhammad Jahangir, J

MUHAMMAD IQBAL and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.26 of 2000, heard on 15th January, 2003.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Appreciation of evidence---Complainant was brother of the deceased and other prosecution witness was paternal uncle of the deceased---Complainant while appearing as prosecution witness repeated the contents of F.I.R. lodged at his instance---Prosecution witness furnished the ocular account and deposed about attesting of the recovery memos.---Testimony of said witnesses could not be discarded merely on account of relationship---Witnesses had furnished the ocular account quite consistently on all material aspects which had found corroboration from the medical evidence and the recoveries as well---Motive advanced by the prosecution was that the accused suspected that the deceased had illicit liaison with his wife--Prosecution itself believed the fact that the Qatl had taken place on the question of family honour---Case having been established by the prosecution, the accused could be convicted under S. 302(c), P.P.C.---Conviction of the accused was converted from S. 302(b), P.P.C. to 302(c), P.P.C. and sentence of life imprisonment awarded to the accused was reduced to 7 years.

Bashir Abbas Khan for Appellants.

Ch. Muhammad Nazir for the State

Date of hearing: 15th January, 2003.

2003 M L D 1017

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD KASHIF and others---Petitioners

Versus

Maj. (Rtd.) ATTA ULLAH BUTT and others---Respondents

Writ Petition No. 14723 of 2002, decided on 5th September, 2002.

(a) Constitution of Pakistan (1973)-----

----Art.199---Criminal Procedure Code (V of 1898), S.561-A---Penal Code (XLV of 1860), Ss.406, 468 & 471---Constitutional petition--­Quashing of proceedings---Treating petition under Art.199 of the Constitution as petition under S.561-A, Cr.P.C.---Constitutional petition filed under Art.199 of the Constitution for quashing proceedings had been challenged on the ground that points urged in the said petition related to S.561-A, Cr.P.C., therefore, petition under S.561-A, Cr.P.C. and not under Art.199 of the Constitution could be filed and Constitutional petition was liable to be dismissed on that score--­Validity---When petition under Art.199 of the Constitution was filed, challan of the case had not been submitted---Petitioner, in circumstances, had no remedy except to avail the one under Art. 199 of the Constitution, as remedy under S.561-A, Cr.P.C. could not be availed ---Challan though had been submitted, during pendency of petition under. Art. 199, same could not hamper High Court from deciding case by treating the same as petition under S.561-A, Cr.P.C.---High Court treated petition under Art.199 of the Constitution, under S.561-A, Cr.P.C. and decided the same on merits.

Abdul Hakim and 2 others v. The State and another PLD 1978 Kar. 359; Kazim Ali Dossa v. Faisal Malik and 5 others 1980 PCr. LJ 818; Miraj Khan v. Gul Ahmad and 3 others 2000 SCMR 122; Abdul Haleem V. The State and another 1982 SCMR 988; Muhammad Bashir v. Fazal Hussain and 2 others 2002 PCr. LJ 513; Mian Fazal Ahmad v S.H.O., Gulberg, Liberty Market, Lahore and 3 others PLD 2002 Lah 164; Syed Muhammad Ahmad v. The State 1972 SCMR 85; Muhammad Akbar v. The State and another PLD 1968 SC 281; Akhtar Hussain Zaidi v. The State PLD 1985 Lah. 662; Mst. Nasim Bibi v. Sub-Registrar, MIC, Lahore 2000 YLR 47; 1994 SCMR 2142; Shahnaz Begum v. The Hon'ble Judge of the High Court of Sind and Baluchistan and another PLD 1971 SC 677; Asghar Ali v. Punjab Local Council Election Authority and 4 others 1999 SCMR 1123; Ata Ullah Malik v. The Custodian, Evacuee Property, West Pakistan and 5 others PLD 1964 SC 236 and 1996 SCMR 186 ref.

(b) Constitution of Pakistan (1973)---

----Art.199---Criminal Procedure Code (V of 1898), S.561-A---Penal Code (XLV of 1860), Ss.406, 468 & 471---Constitutional petition for quashing. of proceedings---Partnership between petitioner and complainant remained intact for four years and dispute had arisen between them on account of rendition of account for which complainant himself had entered into an agreement with petitioner for appointment of arbitrator and arbitrator so appointed gave award on which complainant filed application under Ss.14/15 of Arbitration Act, 1940 for making award rule of Court---quit by petitioner for rendition of accounts, was pending adjudication in the Court of competent jurisdiction---Civil litigation, between the parties was already pending---Effect--High Court could interfere if it was felt that pendency of criminal proceedings initiated subsequently could be a permanent pressure on accused party for settlement of dispute---Merely on allegations leveled by complainant, accused could not be dragged into criminal litigation which would amount to favouring one party by allowing that party to pressurize the second party---High Court could interfere and pass appropriate orders for providing equal opportunities to both parties to contest their civil litigation on equal footing---High Court accepted the petition with directions that proceedings before criminal Court would remain stayed till disposal of civil dispute pending between the parties.

1982 SCMR 988; Muhammad Bashir v. Fazal Hussain and 2 others 2002 PCr.LJ 513 and A. Habib Ahmad v. M.K.G. Scott Christian and 5 others PLD 1992 SC 53 ref.

Uzair Karamat Bhandari for Petitioners.

Dr. Ehsanul Haq Khan for Respondent No.1.

Muhammad Shan Gul for A.-G.

2003 M L D 1038

[Lahore]

Before Parvez Ahmad, J

GHULAM AHMED ---Petitioner

Versus

ALI ASGHAR and another----Respondents

Civil Revision No. 1067 of 1996, heard on 12th August, 2002.

Punjab Pre-emption Act (IX of 1991)---

----Ss.6 & 13---Suit for pre-emption ---Making of Talbs---Proof--­Plaintiff had claimed that he came to know about sale of suit-land one day after attestation of mutation of sale---No evidence was on record on behalf of defendants/vendees to the effect that plaintiff had knowledge of sale prior to date as alleged by plaintiff---Date of knowledge of sale as alleged by plaintiff was presumed to be correct and plaintiff had made Talb-e-Muwathibat immediately, but in view of certain alteration in notice of T-alb-e-Ishhad it had become doubtful and its veracity was shaken---Said notice was also not duly attested by two truthful witnesses as provided under S.13(3) of Punjab Pre-emption Act, 1991---Apart from that fact nothing was in notice to indicate that Talb-i-Ishhad was made in confirmation of fact of making of Talb-i-Muwathibat'---Courts below, in circumstances, had rightly dismissed the suit---Findings with regard to proof ofTalbs' was a question of fact and findings in respect thereof were concurrent by both the Courts below---In absence of any misreading and non-reading of evidence on record and illegality or material irregularity in concurrent judgments of Courts below, same could not be interfered with by High Court in exercise of its revisional jurisdiction.

PLD 2002 SC 488 ref.

Mehdi Khan Chohan for Petitioner.

Sh. Naveed Shaharyar for Respondents.

Date of hearing: 12th August, 2002.

2003 M L D 1046

[Lahore]

Before Mrs. Nasira Iqbal, J

KALSOOM FATIMA ---Petitioner

Versus

DISTRICT JUDGE, KHUSHAB and 2 others---Respondents

Writ Petition No. 14465 of 2002, decided on 12th September,2002.

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

----S.14---Appeal against order of Family Court---Forum of appeal--­West Pakistan Family Courts Act, 1964 being a special law, appeals from Family Court would be governed by provision of said Act itself--­Section 14 of West Pakistan Family Courts Act, 1964 containing a "non obstante clause" no provision of any other law would stand in way of appeal being heard by forum which had been specified in S.14 of West Pakistan Family Courts Act, 1964 wherein it had been specified that where the Family Court was presided over by any person other than District Judge or Additional District Judge or a person of corresponding rank, appeal would lie to the District 'Court.

Shabbir Hussain v. Mst. Ansar Fatima and 3 others PLD 1985 Lah. 491 ref.

Ch. Nisar Ahmad Dhiloon for Petitioner.

Rana Javed Anwar, Law Officer.

2003 M L D 1048

[Lahore]

Before M. Naeemullah Khan Sherwani, J

ZAHID IQBAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6130-B of 2001, decided on 14th November, 2001.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. 392---Bail, grant of---Name of accused was not mentioned in the First Information Report---Accused was not subjected to identification parade by the prosecution which was a major flaw in the case---Recovery of incriminating articles could not be effected from his possession and the mere recovery of telephone cards was hardly sufficient to label him as accused in the case ---Accused did not have a chequered record and had not been involved in such-like cases earlier---Bail was granted.

Zahid Hussain Khan for Petitioner.

Latif Sheikh for the State.

2003 MLD 1058

[Lahore]

Ch. Iftikhar Hussain and Farrukh Latif, JJ

MUSHAK ALAM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1590-B of 2002, decided on 24th June, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(b) & 51---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4---Bail, grant of---Allegedly 120 grams Charas was recovered from the accused and accused had contended that he had falsely been roped in by the Police being in league with his business rivals. and that contention was proved to be correct---Trial Court did not agree with report of D. S. P. regarding discharge of the accused from the case--­Accused was behind the bars since his arrest and he was stated to be non-convict---Case for enlargement on bail, had been made out in view of report of Investigating Officer regarding discharge of the accused from the case---Accused was admitted to bail, in circumstances.

Mian Arshad Latif for Petitioner.

Mehr Muhammad Saleem Akhtar for the State.

2003 M L D 1060

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. SAEEDA BEGUM---Appellant

Versus

Chaudhry MUHAMMAD HUSSAIN---Respondent

Regular Second Appeal No. 18 of 1998, heard on 30th August, 2002.

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance of agreement of sale---Plaintiff, who was tenant of defendant, had claimed that defendant by executing agreement of sale of suit property had agreed to sell property to him--­Plaintiff had further claimed that he had paid earnest money to defendant and balance amount was to be paid to her on registration of sale-deed, but she had refused to perform her part of contract ---Defendant denied execution of agreement of sale and receipt of any amount as earnest money from plaintiff---Trial Court dismissed suit, but Appellate Court below setting aside judgment and decree of Trial Court, decreed suit--­Validity---Signature of defendant on alleged agreement of sale and receipt of amount when compared with specimen signature of defendant were found different---Plaintiff neither had produced stamp vendor nor person who had typed alleged agreement of sale and none of marginal witnesses were produced to prove execution of agreement of sale--­Plaintiff having failed to prove execution of agreement of sale in his favour by defendant, Trial Court rightly dismissed suit---Appellate Court below had acted without legal authority in decreeing suit relying on document execution of which had not been proved---Judgment and decree passed by Appellate Court below were set aside while the one passed by . Trial Court dismissing suit of plaintiff was restored.

Ghulam Siddique Awan and Akbar Munir for Appellant.

Muhammad Sultan Khan for Respondent.

Date of hearing: 30th August, 2002.

2003 M L D 1073

[Lahore]

Before Muhammad Akhtar Shabbir, J

ARSHAD JAVED---Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.98-B of 2001/BWP, decided on 12th March, 2002:

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 170/171/419/420---Bail, grant of---Further inquiry---Offences mentioned in F.I.R. against the accused being not punishable with death, imprisonment for life or ten years, did not fall within the ambit of S. 497, Cr.P.C.---Grant of bail in such like cases, was. a rule and refusal was an exception---Guilt of the accused was yet to be determined by the Trial Court after recording of evidence---Case of the accused was one of further inquiry---Accused who was behind the bars since his arrest, was no more required for further investigation ---Challan of the case had been sent to the Court---Accused was admitted to bail, in circumstances.

Jamil Anwar Shah for Petitioner.

Abdul Ghani for the State.

2003 M L D 1075

[Lahore]

Before Farrukh Lateef, J

KHUDA YAR---Petitioner

Versus

M.B.R. and others---Respondents

Writ Petition No.5574 of 2002, decided on 2nd September, 2002.

(a) Constitution of Pakistan (1973)----

----Art.199---Constitutional jurisdiction---Scope---Conclusions drawn by Revenue Authorities having jurisdiction to pass orders, based on reasons could not be interfered with in Constitutional jurisdiction of High Court.

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

----S.164---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Order passed in revision by Member, Board of Revenue--­Validity ---Revisional order arising out of civil litigation, could not be challenged in Constitutional petition.

1991 SCMR 970; 1986 SCMR 1396 and 1989 SCMR 1392 ref.

Muhammad Arif Alvi for Petitioner.

Tariq Murtaza Malizai for Respondents Nos. 1 and 2.

2003 M L D 1089

[Lahore]

Before M. Javed Buttar, Ch. Ijaz Ahmad and Syed Jamshed Ali, JJ

MUDASSAR QAYYUM NAHRA---Petitioner

Versus

ELECTION TRIBUNAL, PUNJAB, LAHORE and 10 others---Respondents

Writ Petitions Nos.16625, 16675 and 16719 of 2002, decided on 16th September, 2002.

Representation of the People Act (LXXXV of 1976)---

----Ss.12(1), 13, 14(3)(b)(d) & 99(1)(c)---Nomination papers, rejection of---Nomination papers filed by candidates were rejected on the ground that proposers and seconders of candidates did not belong to constituencies for which candidates were contesting election---Provisions of S.12(1) of Representation of the People Act, 1976 and para. 39 of Manual of Instructions for guidance of Returning Officers issued by Election Commission of Pakistan had clearly provided that it was necessary that person proposing or seconding nomination of a duly qualified person to be a member from a constituency, must belong to that constituency and should be registered as Elector in Electoral Roll of any one of electoral areas comprising in that constituency---Provisions of S.14(3)(b) of Representation of the People Act, 1976 had provided that Returning Officer could reject nomination papers if he was satisfied that proposer or the seconder was not qualified to subscribe to the nomination papers ---Pre-divisions of S.14(3)(c) of Representation of the People Act, 1976 had provided for rejection of nomination. papers, if any provision of S.12(1) or S.13 of said Act had not been complied with---Person not belonging to concerned constituency thus could not be a proposer or a seconder and nomination papers of a candidate would be liable to be rejected if proposer or seconder were not qualified to subscribe to nomination papers---Nomination papers of candidates, in circumstances, were rightly rejected.

Ishaq Dar v. The Election Tribunal, Punjab, Lahore Bench at the Lahore High Court, Lahore constituted under the Provisions of the Representation of the People Act, 1976 and others KLR 1998 Civil Cases 374 ref.

Sardar Muhammad Latif Khan Khosa for Petitioner (in W.P. No. 16625 of 2002).

Muhammad Ahsan Bhoon for Petitioner (in W.P. No. 16675 of 2002).

Syed Muhammad Nisar Safdar for Petitioner (in W. P. No. 16719 of 2002).

Kh. Saeed-uz-Zafar, Deputy Attorney-General.

Hafiz Abdul Rehman Ansari for Respondent No.4, (in W.Ps. Nos. 16625 and 16675 of 2002).

Khawar Ikram Bhatti for Respondent No.10, (in W.Ps. Nos. 16625 and 16675 of 2002).

2003 M L D 1094

[Lahore]

Before Maulvi Anwarul Haq and Parvez Ahmad, JJ

FATIMA BIBI and 12 others---Appellants

Versus

THE EXECUTIVE DISTRICT OFFICER (REVENUE), TOBA TEK SINGH and another---Respondents

Intra Court Appeal No.661 in Writ Petition No.13042 of 2002, decided on 4th September, 200.

Constitution of Pakistan (1973)---

---Arts. 187 & 189---Judgment and directions of Supreme Court--­Compliance---Duty of Public Functionary is to see that judgment and directions of Supreme Court were complied with.

Ras Tariq Chaudhry for Petitioner.

2003 M L D 1108

[Lahore]

Before Maulvi Anwarul Haq, J

AHMAD SHAH---Petitioner

Versus

DISTRICT COUNCIL, SARGODHA through Administrator, District Council, Sargodha---Respondent

Civil Revision No. 1807 of 1995, heard on 3rd September, 2002.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Suit for declaration and permanent injunction---Claim of plaintiff was that he was a valid purchaser of suit trees being the highest bidder and was entitled to cut and remove them---Competent Authority having not approved the bid of plaintiff, no contract had come into existence---Mere fact that plaintiff had made highest bid, would not bring a valid enforceable contract into existence in case his bid was not accepted by defendant who had invited tenders or bids.

City Schools (Pvt.) Ltd. Lahore Cantt v. Privatization Commission, Government of Pakistan and others 2002 SCMR 1150 ref.

Malik Muhammad Akram Awan for Petitioner.

Nemo for Respondent.

Date of hearing: 3rd September, 2002.

2003 M L D 1109

[Lahore]

Before Muhammad Khalid Alvi, J

Mst. SALAMAN and another---Appellants

Versus

Mst. SALLI---Respondent

Regular Second Appeal No. 58 of 1989, decided on 5th August, 2002.

Punjab Pre-emption Act (I of 1913)---

----Ss.4, 15 & 21---Suit for pre-emption---Superior right of pre­emption ---Resale of suit property to vendor or third person---Resale of suit property to a vendor and resale to a third person having superior right to that of the pre-emptor, within the period of limitation were two different categories---Vendee could legally defeat a pre-emptor by-re­selling the property in dispute to a third person within the period of limitation having superior right to the pre-emptor, but if property was sold to the original vendor, may be during the subsistence of limitation period, such resale would not defeat the right of pre-emptor against the original sale.

PLD 1982 SC 41; PLD 1971 Lah. 171; PLD 1973 Lah.878; PLD 1989 SC 503; 1979 CLC 48; 1981 CLC 129 and. PLD 1987 Pesh. 21 ref.

Muhammad Riaz Khan Babar for Appellants.

Rana Khurshid Ali for Respondent.

Date of hearing: 2nd August, 2002.

2003 M L D 1114

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD ABDULLAH and another---Petitioners

Versus

MUHAMMAD ARSHAD---Respondent

Civil Revision No. 1159 of 1998, heard on 3rd April, 2003.

Punjab Pre-emption Act (IX of 1991)---

----S. 13---Failure of plaintiff to perform Talb-e-Muasibath immediately on gaining knowledge of the sale---Both the Courts below affirmed the fact of failure to perform Talb-e-Muasibeth by the plaintiff---Concurrent findings of fact recorded by- the Courts of competent jurisdiction on the basis of evidence could not be interfered with by the High Court in exercise of revisional jurisdiction.

Hadaya, Vol. III, Chap.II ref.

Taki Ahmad Khan for Petitioners.

M. Anwar Basit for Respondent.

Date of hearing: 3rd April, 2003.

2003 M L D 1117

[Lahore]

Before Tanvir Bashir Ansari, J

ABDUL HAKIM and others ---Petitioners

Versus

HASHMAT ALI and others---Respondents

Civil Revision No.318-D of 1990/BWP, decided on 17th September, 2001.

Civil Procedure Code (V of 1908)---

----O.XLI, R.23---Specific Relief Act (I of 1877), S.42---Appellate Court remanded the case to the Trial Court after recasting an issue--­Trial Court, after remand, on the basis of evidence recast the issue, and on report of the Local Commission dismissed the suit---Plaintiffs contended that the Trial Court in post remand proceedings had erred in recording findings on all the issues whereas the direction of the Appellate Court was to decide the case afresh in accordance with law after recording evidence on the recast issue---Validity---Appellate Court correctly recast the issue and remanded the same---Trial Court in the post remand proceedings was free to decide the whole case afresh---No illegality or irregularity of procedure had been committed by the Courts below---Revision having no merits was dismissed.

Syed Masood Ahmad Gillani for Petitioners.

M. Sultan Wattoo for Respondents.

Date of hearing: 17th September, 2001.

2003 M L D 1120

[Lahore]

Before Farrukh Lateef, J

ABDUL KHALIQ---Petitioner

Versus

JUDGE FAMILY COURT---Respondent

Writ Petition No.5083 of 1998, decided on 20th November, 2002.

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

----S.5 & Sched.---Constitution of Pakistan, (1973), Art. 199--­Constitutional petition---Dissolution of marriage on ground of Khula'--­Principles---Suit for jactitation of marriage or in the alternative for dissolution of marriage---Defendant had impugned the judgment of the trial Court and had contended that the impugned judgment was illegal because a suit for jactitation of marriage could not be converted into a suit for dissolution of marriage on the basis of Khula especially When there was no specific plea or prayer for Khula' in the plaint and that the impugned decree was passed without there being any issue regarding Khula'---Validity---Contention of the defendant was misconceived because the suit was not converted into one for dissolution of marriage---Suit in question was for jactitation of marriage or in the alternate for dissolution of marriage and in the prayer clause also it was specifically prayed that in the alternate decree for dissolution of marriage be granted---Impugned judgment was passed by the Family Court which had jurisdiction to grant decree for dissolution of marriage on the ground of Khula' despite the fact that the term Khula' was not specifically used in the plaint yet there was evidence on record on the basis of which it was evident that the plaintiff had a fixed aversion for the defendant and that spouses could not live within the limits of God---Defendant's contention that the Court could not readily infer that the spouses could not live amicable in light of plaintiff's own statement that Rukhasti had not taken place and the parties had no occasion to live together as man and wife was repelled as a wife could not be forced to live with her husband without her consent and liking and she did not need to come out with logical objective and sufficient reasons- regarding her claim for Khula, it was enough to show that she had developed a fixed aversion against her husband---Plaintiff was found rightly entitled to a decree for dissolution of marriage on the basis of Khula' in the light of her own statement to the effect that she had developed hatred against the husband---High Court accordingly dismissed the writ petition.

Lal Muhammad v. Mst. Gull Bibi and another PLD 1986 Quetta 185 ref.

(b) Words and phrases---

----"Acted with material irregularity"--- Meaning.

(c) Khula'---

----A wife cannot be forced to live with her husband without her consent and liking---She need not come out with logical objective and sufficient reasons regarding her claim for Khula', it is enough to show that she had developed a fixed aversion against her husband

Messrs Ch. Muhammad Anwarul Haq and Muhammad Asif Khan for Petitioner.

Jam Ghulam Akbar for Respondent No.2.

Date of hearing: 12th November, 2002.

2003 M L D 1125

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

MUHAMMAD HANIF---Appellant

Versus

THE STATE and others---Respondents

Criminal Appeal No.567 of 1998 and Murder Reference No.287 of 1996, heard on 31st March, 2003.

(a) Penal Code (XLV of 1860)---

----Ss.302(b)/34 & 336/34---Appreciation of evidence---Recording of F.I.R. was delayed and the same was not recorded in the police station--­Accused according to F.I.R. had caused three fire-arm injuries on the person of the deceased, but his post-mortem report revealed that he had received only four stab wounds and no fire-arm injury---Lot of difference exists between a pistol and a knife---Had the complainant, father of the deceased, been present at the spot; he must have not committed such a big mistake while getting the F.I.R. lodged---Ocular account, thus, was in clear conflict with medical evidence---Accused was consequently acquitted on benefit of doubt of the charge under S.302(b)/34 P.P.C.---Injury caused to the prosecution witness by the accused was, however, fully proved whereby the injured had lost the vision of his one eye---Conviction and sentence of accused under S.336/34, P.P.C. were upheld in circumstances.

(b) Penal Code (XLV of 1860)-----

----Ss.302(b)/34 & 336/34---Appreciation of evidence---Accused was real s brother of co-accused and only "Lalkara" was attributed to him--­Possibility of false implication of accused on account of his being real brother of co-accused could not be ruled out---Benefit of doubt was extended to accused in circumstances and he was acquitted accordingly.

Ch. Abdul Razzaq Younas for Appellant.

Ashfaq Ahmad Chaudhry for the State.

Ch. M.S. Shad for the Complainant.

Date of hearing: 31st March, 2003.

2003 M L D 1131

[Lahore]

Before Farrukh Lateef, J

JIND WADDA---Petitioner

Versus

ARSHAD IQBAL, ADDITIONAL DISTRICT JUDGE, MULTAN and 3 others---Respondents

Writ Petition No.930 of 2003, decided on 10th March, 2003.

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

----S. 5---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintenance allowance, determination of---Family Court has exclusive jurisdiction to decide such matters---No misreading of evidence nor any material piece of evidence having been overlooked while determining the amount of maintenance awarded, Constitutional petition was dismissed.

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

----S. 5---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Constitutional jurisdiction of High Court---Scope---High Court can quash an order passed by a subordinate Court as without lawful authority and of no legal effect but cannot substitute its own findings for that of the lower Courts.

(c) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---In the absence of any illegality, irregularity, material defects of procedure, errors of law or fact the judgment of the Court below could not be disturbed---Constitutional petition was dismissed in circumstances.

Manzoor Hussain Bhutta for Petitioner.

2003 M L D 1133

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD SALEEM and 3 others---Petitioners

Versus

FEDERAL PUBLIC SERVICE COMMISISON OF PAKISTAN through Chairman, Islamabad and 2 others---Respondents

Writ Petition No.4408 of 2003, decided on 10th April, 2003.

Constitution of Pakistan (1973)-----

----Art.199---Constitutional jurisdiction of High Court---Scope---High Court has jurisdiction to interpret the law and not to take the role of the policy maker or of the Legislature or of rule-making authority in the garb of interpretation---Even in case of harsh rules framed by the Authorities High Court has no jurisdiction to strike down the same--­Principles.

The State v. Zia-ur-Rehman and others PLD 1973 SC 49; Mian Muhammad Nawaz Sharif v. Federation of Pakistan and others PLD 1993 SC 473; Government of Pakistan v. Zamir Ahmad Khan PLD 1975 SC 667; Zamir Ahmad Khan v. Government of Pakistan and another 1978 SCMR 327; Federation of Pakistan v. Mirza Muhammad Irfan Baig and 4 others 1992 SCMR 2430 and Samad Khan's case 1993 MLD 726 fol.

Ch. Farid Anwar for Petitioner.

2003 M L D 1135

[Lahore]

Before Farrukh Lateef, J

ALLAH WASAYA and others---Petitioners

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Revision No-505 of 1993, decided on 28th March, 2003.

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

----Ss.115, 12(2) & O.XXIII, R.1---Earlier suit dismissed as withdrawn without seeking permission to file a fresh suit on same cause of action--­Appeal against, that order was also dismissed---Contention that said appeal should have been treated as an application under S.12(2), C.P.C. because the counsel had withdrawn the previous suit without instructions was repelled on the ground that the objection regarding decision given by First Appellate Court and that too in an. appeal regarding previous suit could not be raised for the first time in revision petition.

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

----Art.114---Estoppel---Principle of---Objection regarding mortgage having not been raised by predecessor-in-interest of the petitioners or even by their predecessor-in-interest it did not lie in their mouth now to raise objection that mortgage was void since its inception to the extent of mortgagee as he was a minor.

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

----S.115---Concurrent findings of fact by the Courts below--­Interference by High Court---Scope---Section 115, C.P.C. is attracted against irregular exercise, non-exercise or illegal, assumption of jurisdiction and not against conclusions of law or fact not involving, the question of jurisdiction.

Riaz Muhammad Khan Sadhu Zai for Petitioners.

Mehr Zauq Muhammad Sipra for Respondent No.2.

Syed Kabeer Mahmood for Respondents Nos.7-A, 11-A and

Date of hearing: 17th March, 2003

2003 M L D 1140

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD JAHANGIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5743 of 2001, decided on 2nd November, 2001.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/324/109/34---Bail, grant of---Further inquiry---Accused had been attributed role of causing injury on neck of deceased in the F.I.R. and according to post-mortem examination report, said injury had been declared to be an exit wound of injury which had been attributed to co-accused---Since ocular account furnished by complainant in F.I.R., was in conflict with medical evidence which had come on record in form of post-mortem examination and sketch of injuries, case of accused was open for further inquiry--­Accused was admitted to bail, in circumstances.

Muhammad Ashraf v. The State 1999 PCr.LJ 1464 ref.

Zahid Iqbal for Petitioner.

Muzaffar Ali Gill for the State.

2003 M L D 1145

[Lahore]

Before Syed Sakhi Hussain Bukhari, J

WATER AND POWER DEVELOPMENT AUTHORITY, WAPDA HOUSE, LAHORE---Petitioner

Versus

MUHAMMAD YAQOOB---Respondent

Civil Revision No.294-D of 1995, heard on 19th March, 2003.

Malicious prosecution---

----Suit for malicious prosecution---Plaintiff has to prove that case was registered without reasonable and probable cause and that defendant had acted maliciously i.e. with an improper motive and not to further the ends of justice.

Ch. Ghulam Hussain Gulshan for Petitioner.

Rana Maqbool Ahmad Khan for Respondent.

Date of hearing: 19th March, 2003.

2003 M L D 1148

[Lahore]

Before Farrukh Lateef, J

MUHAMMAD AZAM---Petitioner

Versus

EVACUEE TRUST BOARD and others---Respondents

Writ Petition No. 8840 of 1999, decided on 11th March, 2003.

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

----Ss.6, 8 & 24---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Notice for recovery of arrears of rent of Evacuee Trust Property to the tenant---Validity---Record had shown that the predecessors-in-interest of the petitioners had not only acknowledged that Evacuee Trust Property Board was the owner of the house in question but they were in possession thereof as its tenants and the property was under the management and control of the Evacuee Trust Property Board---Mere act of the Rehabilitation Authority of renting out the said property and receiving rent in routine could not be deemed as treating that property as "evacuee" and not "evacuee trust property"--­Property in question was admittedly an evacuee trust property but as the Evacuee Trust Property Board was not in existence in the year 1952, the same was rented out by the Rehabilitation Authority to the predecessor­-in-interest of the petitioners and from the date of coming into existence, in the year 1960, the Evacuee trust Property Board was controlling and managing the evacuee trust properties including the property in possession of the petitioners---Evacuee Property Trust Board, in circumstances, was well within its jurisdiction to obtain rent from the petitioners, and the demand for the payment of rent which was alleged to be the notice from the Board, was valid and legal and the Board had the jurisdiction to issue the Bill for payment of arrears of rent---Petitioners had approached the Court with unclean hands min it appeared that they had filed the Constitutional petition to enjoy the property for a maximum period without payment of any rent---Constitutional petition was dismissed in circumstances.

Chahat v. Border Allotment Committee 1987 CLC 2378 Lah. and Abdul Khaliq, Abdul Razzaq v. Kishan Chand and others PLD 1964 SC 74 distinguished.

Kanwar Akhtar Ali for Petitioners.

Malik Jaffer Kamboh for Respondent.

Date of hearing: 20th February, 2003.

2003 M L D 1155

[Lahore]

Before Maulvi Anwarul Haq, J

ASHIQUE ALI and another---Petitioners

Versus

LAL MUHAMMAD KHAN and another---Respondents

Civil Revision No.960-D of 1993, heard on 26th August, 2002.

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance of agreement of sale---Plaintiffs had claimed that suit property stood transferred to father of defendant by the Settlement Department but before the Permanent Transfer Deed could be issued, father of defendant died and defendant being sole heir of the deceased agreed to sell the suit property to the plaintiff vide registered sale agreement for consideration---Plaintiff had further claimed that amount as earnest money was paid to the defendant while remaining amount was to be paid at the time of registration of sale-deed, but defendant having failed to do the needful, plaintiff had to file suit for specific performance of agreement---Scribe of agreement had unequivocally proved execution of agreement of sale and other witness produced by plaintiff had also proved averments made by plaintiffs in their plaint---Defendant could not prove that agreement was fabricated one or was without consideration---Findings of Courts below that agreement arrived at between the parties was without consideration, was wholly without any basis because agreement clearly narrated that consideration had been settled out of which amount had been paid to defendant as earnest money---Plaintiffs did prove their version in the plaint by producing necessary evidence whereas defendant failed to produce any evidence at all in support of his respective pleas including that the agreement was fabricated or was based on fraud---Courts below, in circumstances were not justified to dismiss the suit---Concurrent judgments and decrees of Courts not based on evidence on record, were set aside by High Court in exercise of its revisional jurisdiction.

M.A. Zafar for Petitioners.

Nemo for Respondents.

Date of hearing: 26th August, 2002.

2003 M L D 1159

[Lahore]

Before Ch. Iftikhar Hussain, J

LALLO---Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous Nos.3372-B of 2002 and 367-B of 2003, decided on 3rd March, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/324/337-A(i)/337­F(i)/337-H(ii)/337-L(ii)/148/149---Bail, grant of---Further inquiry---No injury to the deceased had been attributed to the accused persons--­Accused had allegedly caused Sota blows on non-vital parts of the bodies of the prosecution witnesses---Neither the prosecution nor the complainant side had denied that head injury of one of the prosecution witnesses had been declared as "Shajjah Khafifah"---Question of vicarious liability of the accused for the murder of the deceased, would definitely be gone into at the trial---Case of the accused, in circumstances was covered under subsection (2) of S. 497, Cr.P.C. requiring further inquiry into their guilt---Accused who were behind the bars were stated to be previous non-convicts---Accused Were admitted to bail, in circumstances.

Muhammad Akbar and 4 others v. The State and another 1978 SCMR 7 and Sultan and 2 others v. The State 1978 PCr.LJ 194 ref.

Khan Hafeez Ahmad Khan for Petitioner.

Kamran-bin-Latif for the State.

M. Bashir Ahmad Sial for the Complainant.

2003 M L D 1164

[Lahore]

Before Farrukh Lateef, J

HAZOOR BUKHSH---Petitioner

Versus

Mst. MANZOOR MAI ---- Respondent

Civil Revision No. 1078 of 2002, decided on 11th December, 2002.

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

----S.42--Concurrent findings---Claim of the plaintiff was that the defendant had obtained decree for dissolution of marriage against his son on the basis of Khula, therefore, defendant had no concern with the suit property given to her vide registered sale-deed allegedly in consideration of marriage and the plaintiff was the owner of the suit property and sale­-deed be declared to be void---Suit and appeal of the plaintiff were dismissed---Plaintiff had assailed the concurrent findings of the Courts below---Validity---Execution of the registered deed in question was not denied by the plaintiff---Ex facie it was a sale-deed and did not contain any condition as was alleged by the plaintiff, neither did it disclose that the suit property was being transferred to the defendant m lieu of dower however, it reflected that suit property was sold by the plaintiff to the defendant for a consideration- --Payment of consideration was admitted in the registered deed by the plaintiff---Copy of nikahnama was not produced by the plaintiff to support his contention---Sale-deed in question could not be deemed as void if actual physical possession of suit property had not been delivered to the defendant---Concurrent findings of the Courts below did not suffer from any legal infirmity and were consequently maintained by the -High Court.

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

----O.XX, R.5---Specific Relief Act (I of 1877), S.42---Deciding issues jointly by the trial Court---Contention of the plaintiff was that by deciding issues Nos.1,2, 5, 6 and 7 jointly trial Court had committed illegality---Validity---Contention was without substance since these issues were interlinked, therefore, they could be discussed and decided together.

(c) Qanun-e-Shahadat (10 of 1984)---

----Art. 79---Proof of execution of document required by law to be attested---Contention of the plaintiff was that according to Art.79 of Qanun-e-Shahadat Order, 1984 two witnesses were required to prove the alleged registered sale-deed whereas only one witness was produced--­Validity---Contentions of the plaintiff were repelled as the transaction in question was not of gift but was that of sale, in such circumstances when the execution of the deed was not denied, defendant was not, required to prove its execution by producing two marginal witnesses.

(d) Transfer of Property Act (IV of 1882)---

----S.53-A---Specific Relief Act (I of 1877), S.42---Symbolic possession of immovable property by the transferee---Effect---Plaint indicated that plaintiff had transferred five Marlas of land vide registered sale-deed to defendant and had also acknowledged in the deed in question of having given symbolic' possession to the defendant---Sale-deed could not be deemed void, if actual physical possession was not delivered to the transferee.

Abid Hussain Bhutta for Petitioner.

2003 M L D 1167

[Lahore]

Before Iftikhar Hussain Chaudhary, CJ

MUHAMMAD RAMZAN---Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4-B of 2003, decided on 10th January, 2003.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 322/338---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10---Ad interim bail, confirmation of---Excepting the oral statement of the prosecution, no other evidence had been collected by Investigating Agency---Parents of the prosecutrix submitted affidavits to the effect that prosecutrix was subjected to torture, but parents of the prosecutrix were not eye­witnesses of the incident---Bail allowed earlier to the accused, was confirmed in view of tenuous nature of evidence collected by Police in the case.

N.A. Butt for Petitioner.

Rao Abdul Jabbar Khan for the Complainant.

Mirza Abdullah for the State.

2003 M L D 1168

[Lahore]

Before Ch. Ijaz Ahmad, J

ASIM BUTT and others---Petitioners

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, FEROZEWALA and 11 others----Respondents

Writ Petitions Nos.21363, 20969 of 2002 and 1024 of 2003, decided on 26th March, 2003.

(a) Interpretation of statutes---

--Pith and substance of the enactment to be considered to find out its true nature and character---Intention of the Legislature was primarily gathered from language used by the Legislature in the contents of statute---Best rule of interpretation was plain reading of provisions of statute and provisions of statute must be read as a whole.

United Provinces' case AIR 1941 FC 16; Shamim-ur-Rehman's case PLD 1983 SC 457; Iqbal Muhammad Khan's case 1992 PLC 549; Trustee of Fort of Karachi's case 1990 CLC 197; Hakim Ali's case PLD 1992 SC 595; Zia-ur-Rehman's case PLD 1973 SC 49 and Mian Nawaz Sharif's case PLD 1993 SC 473 fol.

(b) Punjab Local Government Elections Ordinance (V of 2000)---

----Ss. 16 & 18-A---Constitution of Pakistan (1973), Art.199--­Constitutionai petition---Principle of Sinker---Applicability---Petitioners contested election of Nazim and Naib Nazim under the provisions of Punjab Local Government Elections Ordinance 2000 and submitted their nomination papers jointly under S. 16 of the said Ordinance, and were declared the returned candidates---Election petition filed against the petitioners on the ground that one of them was not eligible to contest the election was accepted and both the petitioners were deseated---No allegation whatsoever was on record against eligible candidate---Principle of sinker was not applicable after issuance of Gazette notification qua returned candidates---Removal, disqualification or annulment of an election of a member would not affect the decision of other returned candidate who had contested election as a joint candidate with the former.

Chaudhry Maqbool Ahmad's case PLD 2003 Lah. 138 and Haji Alam Sher v. Malik Muhammad Nawaz PLD 2003 Lah 12 fol.

(c) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court has no jurisdiction to substitute its own finding in place of the finding of the Tribunal below.

Board of Intermediate and Secondary Education, Lahore v. Musaddaq Nasim Sindhu PLD 1973 Lah. 600; Syed Azmat Ali v. Chief Settlement and Rehabilitation Commissioner PLD 1964 SC 260 and Qaiser Shafiullah's case 1994 SCMR 859 fol.

Mian Irfan Akram for Petitioner.

M. Hanif Khtana, A.A.-G. for Respondent No. 1.

Muzafar Iqbal Ch. for Respondents Nos.2 and 3.

Date of hearing: 17th February, 2003.

2003 M L D 1174

[Lahore]

Before Asif Saeed Khan Khosa, J

ABDUL JABBAR and others---Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4734-B of 2002, decided on 18th July, 2002.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 379/420/468/471--­Ad-interim pre-arrest bail, confirmation of ---F.I.R. in the case had been lodged with a delay of four months and no specific role had been attributed therein to co-accused---During investigation S. 379, P.P.C. had already been deleted from the F.I.R. and offences under Ss. 420 & 471, P.P.C. were bailable ---Prosecution could not produce evidence to show that the accused had forged the registration documents of vehicle in question---Investigating Officer had categorically stated before Court that accused had already joined the investigation and nothing was to be recovered from their possession---Ad-interim pre-arrest bail already allowed to the accused, was confirmed, in circumstances.

Liaqat Ali Awan for Petitioners.

Ch. Muhammad Iqbal Sultani for the Complainant.

Aneela Iqbal Bhatti for the State.

2003 M L D 1178

[Lahore]

Before Syed Sakhi Hussain Bukhari, J

ZAFAR IQBAL ANJUM---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.54 of 2002/BWP, decided on 30th May, 2002.

Criminal Procedure Code (V of 1898)---

----S.514---Forfeiture of surety bond---Petitioner (surety) admittedly had gone abroad and was not available in Pakistan when proceedings against him had been initiated under S.514, Cr.P.C.---Compromise had also been effected between the accused and the complainant---Penalty of Rs.40,000 imposed upon the petitioner by the Trial Court was reduced to Rs.10,000 in circumstances.

Rasheed Afzal Cheema for Petitioner.

Mian Muhammad Bashir, A.A.-G.

2003 M L D 1179

[Lahore]

Before Mian Muhammad Jahangier, J

MUHAMMAD ZAFAR---Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.574 of 2000, heard on 20th December, 2002.

Penal Code (XLV of 1860)---

----Ss. 302(b)(c) & 34---Appreciation of evidence---Motive of occurrence according to prosecution was that the accused who was employed by the deceased for supervision of his crops, having been found negligent in his duty, was reprimanded by the deceased and the accused to take revenge of his insult, killed the deceased---Plea of the accused was that he killed the deceased on account of `Ghairat' as when he found his wife with the deceased who was committing Zina with her, he flew into rage because of sudden and grave provocation and fired at the deceased---Mere reprimanding by a master to a servant, even abusing for being negligent was not such which would force the servant to kill his master, but when' the question of Ghairat was involved, the servant could take action to an extreme end by killing the master---Delay in lodging F.I.R. remained meaningful---Motive advanced by the prosecution was dis-believed by the Trial Court ---Occurrence was admitted by the accused, but in his own way and not as alleged by the prosecution---Trial Court had believed that incident had taken place on question of Ghairat which attracted the provisions of S. 302(c), P P.C. ---Conviction passed by the Trial Court against the accused, was maintained, but the accused was sentenced to 7 years R.I. under S. 302(c), P.P.C. instead of life imprisonment under S. 302(b), P.P.C.

Zahid Parvez and another v. The State PLD 1991 SC 558; Munir Ahmad v. The State NLR 2001 Criminal 444 and The State v. Muhammad Hanif and others 1992 SCMR 2047 ref.

S.D. Qureshi for Appellant.

Malik Muhammad Azam for the State.

Date of hearing: 20th December, 2002.

2003 M L D 1186

[Lahore]

Before Naeemullah Khan Sherwani and Bashir A Mujahid, JJ

MUKHTAR HUSSAIN ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.415 of 1999, heard on 17th January, 2000.

Penal Code (XLV of 1860)---

----S. 392---Appreciation of evidence---None of the accused was nominated in the F.I.R.---Only description of two accused was given by the complainant, but no identification parade was held after the arrest of the accused---Complainant improved his statement when he was examined as prosecution witness and nominated the accused implicating him in commission of the crime---Both alleged eye-witnesses had clearly stated that they had not identified any of the accused at the time of commission of offence---Nothing was recovered from the accused--­Solitary statement of the complainant which besides having been improved, was not supported from any independent source---Case was of no evidence which had made the case against the accused highly doubtful---Extending benefit of doubt, the accused was acquitted from the charge by setting aside his conviction and sentence.

M. Zafarullah Khakwani for Appellant.

Sh. Muhammad Rahim for A.-G.

Date of hearing: 17th January, 2000.

2003 M L D 1189

[Lahore]

Before M. Naeemullah Khan Sherwani, J

GHULAM NABI alias BAO---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3293-B of 2002, decided on 25th May, 2002.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Bail, grant of--­Complainant in his supplementary statement and all three prosecution witnesses in their statements under S.161, Cr.P.C. had attributed a fatal injury to the accused which he caused by throwing a brick on deceased hitting right side of his chest---Deeper appreciation of evidence could not be taken at bail stage---Prima facie, overwhelming evidence was with prosecution to substantiate charge against the accused---Bail application of accused, was dismissed in circumstances.

Malik Riaz Khalid Awan for Petitioner.

M. Akram Qureshi for the Complainant.

Saifullah Khalid for the State.

2003 M L D 1194

[Lahore]

Before Jawwad S. Khawaja, J

LAL BADSHAH---Petitioner

Versus

MAHBOOB SHAH---Respondent

Civil Revision No. 1937 of 1998, heard on 10th July, 2002.

Punjab Pre-emption Act (IX of 1991)---

----Ss.6 & 13---Suit for pre-emption ---Making of Talbs---Plaintiff came to know about sale of suit-land long before it became public knowledge and possession of suit-land was delivered to defendant prior to the date when sale became public knowledge---Said circumstance was sufficient to show that plaintiff had knowledge of sale transaction prior to the date as alleged by him ---Talb-e-Muwathibat, in circumstances, was not made by plaintiff in a timely manner---Two-week period allowed for making Talb-e-Ishhad was maximum time allowed for making such Talb, but it was, made by plaintiff after eight days of said prescribed period of two-weeks---No justification existed for delay of eight days between making Talb-e-Muwathibat and notice of Talb-e-Ishhad--- Trial Court, in circumstances, had rightly dismissed the suit for not making Talbs according to law.

Malik Munsif Awan for Petitioner.

M. Zubair Saeed Awan for Respondent.

Date of hearing: 10th July, 2002.

2003 M L D 1196

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

SHAKEEL AHMAD and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.899/J and Murder Reference No.66-T of 2002 heard on 6th January, 2003.

(a) Penal Code (XLV of 1860)---

----Ss. 302(b)/324/353---Anti-Terrorism Act (XXVII of 1997), S.7(a)(b)---Appreciation of evidence---Matter was reported to the Police not at the Police Station, but at Civil Hospital after more than two hours though distance between place of occurrence and Police Station was one kilometre---Occurrence had taken place in a thickly-populated area surrounded by houses and shops, but no person from the locality was either cited or produced by prosecution to prove its case---Only accused and his co-accused were named in the F.I.R. while one was stated to be unknown---Record had not shown that accused had any connection in the nature of friendship, class-fellow, caste-fellow or was involved in any case with his co-accused and they had no common intention ---Co-accused only was to be arrested being a nominated accused in a case under S.392, P.P.C.---Accused who had allegedly raised Lalkara and fired two shots on person of deceased, being not required in any case, fire by said accused at deceased Police Officer was not understandable---Two accused were nominated in F.I.R. while third was shown to be unknown, but in supplementary statement which allegedly was recorded on the same day, two persons were shown as unknown, which had shown the anxiety on the part of the prosecution to falsely implicate as many persons as it could---Both Police Officials being subordinate to Investigating Officer, possibility was that Investigating Officer who was revengeful towards accused, had directed his subordinates to falsely implicate the accused in the case---At least 7/8 shots were alleged to have been fired at the person of deceased, but only five injuries were found on his person---Merely because complainant was injured, it could not be said with certainty that he told the whole truth---Injuries on person of complainant according to statement of Doctor were superficial and simple in nature and he was stable and conscious and his general condition was satisfactory---Accused was arrested after 8 days of the occurrence and pistol on his pointation was allegedly recovered after 6 days of his arrest and crime empties were sent to Office of Fire Arms Expert one day after recovery of pistol---Probably after plantation of pistol upon the accused, empties were prepared and then sent to Forensic Arms Expert---No reliance thus could be placed on said recoveries--­Complainant and other Police Officials who were said to be on official duty to check the security arrangements, must be in Police uniform and not in plain clothes, but complainant police officials had produced blood­stained plain clothes which also had cast doubt upon veracity of prosecution story---Defence having been able to create dents in the prosecution story, benefit thereof had to be extended to the accused not as a grace, but as a matter of right ---Co-accused was not named in F.I.R. and on the same evidence other co-accused who too was not named in F.I.R. was acquitted by the Trial Court---Conviction and sentence awarded to accused were set aside and they were acquitted of the charge.

(b) Criminal trial---

---- When there were two possibilities of an incident occurring in the case, the one which would go in favour of the accused, had to be given preference.

Malik Saeed Hassan for Appellant.

Mirza Abdullah Baig for the State.

Date of hearing: 6th January, 2003.

2003 M L D 1204

[Lahore]

Before Mian Hamid Farooq and Parvez Ahmad, JJ

ATA MUHAMMAD ---Appellant

Versus

HIDAYAT ALI ---Respondent

Regular First Appeal No.200 of 1995, heard on 22nd July, 2002.

Specific Relief Act (I of 1877)--­

---S.12---Suit for specific performance of agreement of sale---Plaintiff had claimed that defendant by executing agreement of sale had agreed to sell suit-land in favour of plaintiff and that defendant had received amount from plaintiff as earnest money--Defendant denied the execution of alleged agreement of sale its favour of plaintiff and receipt of earnest money from him and stated that alleged agreement of sale was result of fraud---Onus to prove execution of agreement of sale in his favour lay heavily on plaintiff, but he failed to discharge the same as he had failed to produce not only scribe of the said agreement, but also the Stamp Vendor, Register of Stamp Vendor and also to establish identity of person from whom Stamp Papers were purchased---Witnesses produced by plaintiff in proof of his claim were interested witnesses as they had close relations with a person with whom defendant had a dispute of land and tubewell and said witnesses were also closely related to plaintiff--­Version of defendant that alleged agreement of sale was result of fraud had found support from record---Plaintiff, in circumstances, had failed to prove execution of agreement of sale in his favour---Plaintiff also had failed to produce receipt with regard to payment of amount of earnest money allegedly received by defendant from him---None of witnesses had clearly stated about the amount of earnest money which either was paid or counted in their presence---Fact that no earnest money was paid by plaintiff to defendant was fully established---Trial Court, in circumstances had rightly dismissed the suit holding that neither execution of alleged agreement to sell nor payment of earnest money, had been proved on record.

Ch. Bashir Ahmad for Appellant.

Muhammad Sarfraz Khan for Respondent.

Date of hearing: 22nd July, 2002.

2003 M L D 1208

[Lahore]

Before Abdul Shakoor Paracha, J

Sh. MUHAMMAD HANIF---Appellant

Versus

Mst. FEHMIDA SULTANA---Respondent

Second Appeal from Order No.65 of 2001, heard on 1st August. 2002

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13(3)(a)(ii) & 15---Bona fide personal need of landlady---Landlady asserted that shop is dispute was required by her bona fide for opening a tuition centre---Landlady was a widow and a retired teacher having two unmarried daughters---Other daughter of the landlady also happened to be a school teacher who had promised to extend her service and to give assistance to the landlady---Landlady, in circumstances, required shop in question in good faith for her bona fide personal use for opening a tuition centre---Landlady, if wanted to do business of opening of a school or tuition centre in the commercial premises owned by her it could not be said that the shop was not suitable for tuition centre as the same was situated at a place which was totally a commercial area and there were shops of electronics---Law had preferred choice of landlord/landlady and not of tenant or of Rent Controller---Private schools, tuition centres and universities which were being run in the private sector in residential building, were not contrary to law---Rent Controller while dismissing ejectment application of landlady, had fallen in error as he misread evidence on record and had not applied the correct law---Appellate Authority, in circumstances, had rightly reversed finding of Rent Controller.

PLD 1976 Kar. 832; Taj Muhammad Abbasi through Legal Heirs v. Messrs Ferzesons (Rawlapindi) Pvt. Limited, Rawalpindi through Managing Director 1996 SCMR 97 and Abdur Rashid v. Sarfraz Arshad Khan and 2 others 1984 MLD 244 ref.

Nayar Iqbal Ghauri for Appellant.

Zaeem-ul-Farooq Malik for Respondent.

Date of hearing: 1st August, 2002.

2003 M L D 1217

[Lahore]

Before Khawaja Muhammad Sharif and Bashir A. Mujahid, JJ

MAQSOOD AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1796 and Murder Reference No.69-T of 2002, heard on 18th February, 2003.

Penal Code (XLV of 1860)---

----Ss.302(b), 334, 337-R & 337-F(iii)---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---Accused was specifically nominated in the promptly lodged. F.I.R.---Injury attributed to the accused had been fully corroborated by medical evidence---Participation of the accused in the occurrence could not be doubted as four prosecution witnesses who were injured in the same occurrence had fully implicated the accused for commission of crime---Said prosecution witnesses had no previous enmity for false implication of the accused--­Accused came alongwith his co-accused duly armed at the place of occurrence and resorted to firing and shared common intention with his co-accused---Argument that accused caused only fire shot on the non­-vital part of the deceased, was immaterial as he was vicariously liable for death of deceased and causing injuries to the prosecution witnesses--­Accused was also declared proclaimed offender which also corroborated/strengthened prosecution case---Prosecution case having been proved against the accused beyond any shadow of doubt, conviction and sentence recorded against the accused by Trial Court, were maintained.

Mehreen Anwar Raja for Appellant.

Mirza Abdullah Baig for the State.

Date of hearing: 18th February, 2003.

2003 M L D 1222

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

GHULAM MUHAMMAD and 8 others---Petitioners

Versus

TOWN COMMITTEE PIPLAN through ASSISTANT COMMISSIONER/ADMINISTRATOR, DISTRICT MIANWALI and 7 others---Respondents

Civil Revision No. 1930 of 1996, decided on 20th September, 2002.

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

----O.XXXIX, Rr.1 & 2---Interim injunction, grant of---Court had to see sufficient grounds for grant of interim injunction---Prima facie case, balance of convenience and a pronounced or manifest exposure of aggrieved person to an irretrievable injury are the cardinal principles.

Mir Qaram-ul-Zaman v. A.D.B.P. and others 1995 CLC 1982 ref.

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

----O.VII, R.11--Rejection of plaint---Purpose and grounds---Plaint would be rejected in four cases; i.e. where it did not disclose a cause of action; where relief claimed had been undervalued; where court-fee of full value had not been paid; and where suit appeared on face of plaint to be barred by any law---All such conditions deal with powers of Court to reject plaint---Purpose of rejection of plaint was that stillborn suit ought to be buried at its very inception so that no further time be consumed on fruitless litigation and that plaintiff would have a chance to retrace his steps at the earliest possible time so that if permissible under law, he could file properly constituted case---Rejection of plaint under O.VII, R.11, C.P.C. was distinct from dismissal of suit--­For rejection of plaint under O.VII, R.11, C.P.C. plaint was considered to be true and only facts averred therein were to be looked into.

Mir Qaram-ul-Zaman v. A.D.B.P. and others 1995 CLC 1982 ref.

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

----O.VII, R.1 (e)---"Cause of action"---Meaning---Phrase "cause of action" would mean a bundle of facts giving rise to a right which plaintiff would have to prove if traversed by defendant.

Pakistan State Oil Co. Ltd. v. The Karachi Electric Supply Corporation Ltd. and others PLD 1991 Kar. 365 ref.

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

----S.42---Punjab Local Government Ordinance (VI of 1979), S.121--­Civil Procedure Code (V of 1908), O.VII, R.11 ---Suit for declaration--­Rejection of plaint---Plaintiffs had sought declaration that notice with regard to demolition of their shops/Khokhas on land owned by defendant-Authority be declared illegal and based on mala fide of the Authority which had no jurisdiction or power to demolish the said shops/Khokhas--Plaintiffs had admitted that; property upon which said shops/Khokhas were built by plaintiffs belonged to the Authority; that plaintiffs neither were tenants under the Authority nor they had applied for rehabilitation to Provincial Government and that plaintiffs were paying `Tawaan' for encroachment of land owned by the Authority--­Plaintiffs did not produce any document in support of averments made by them in their plaint and their challenge to notices had no value in eyes of law and no cause of action had accrued to them to file the suit---Court before which the suit was pending had jurisdiction to reject the plaint if the same did not disclose cause of action or was barred by any law or was not properly constituted suit and if the Court was fully convinced that it would be a futile exercise in future---Plaintiffs undoubtedly being in unauthorized possession of property in dispute it was not sufficient to term unauthorized possession of property into permissive possession--­Bare reading of plaint had shown that plaintiffs had no cause of action to file the suit---Courts below, in circumstances, had rightly rejected the plaint.

Municipal Corporation, Peshawar and others v. Shakeel Hussain and others 2001 SCMR 1262; Jewan and 7 others v. Federation of Pakistan and, 2 others 1994 SCMR 826; Messrs Abdul Hamid v. Board of Intermediate and Secondary Education 1991 MLD 672; Pakistan State Oil Co. Ltd. v. The Karachi Electric Supply Corporation Ltd. and others PLD 1991 Kar. 365; Mir Qamar-ul-Zaman v. Agricultural Development Bank of Pakistan and others 1995 CLC 1982 and Messrs Paper Corner v. B.I.S.E. 1991 CLC 740 ref.

Malik Noor Muhammad Awan for Petitioner.

Muhammad Arif Ch. for Respondent No. 1.

Ch. Muhammad Azim for Respondents Nos.2 and 3.

Nemo for Respondents Nos.4 to 8.

Date of hearing: 17th September, 2002.

2003 M L D 1227

[Lahore]

Before Farrukh Lateef, J

Rana MUHAMMAD ASLAM---Petitioner

Versus

MUSHTAQ AHMED alias PEERJEE---Respondent

First Appeal from Order No. 132 of 2002, decided on 11th March, 2003.

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

----S. 17(2)(i)(9)---Tenant could not successfully resist ejectment, proceedings on the strength of an agreement to sell the property made between the landlord and himself---Tenant on the contrary admitted during cross-examination that he had obtained possession of the disputed shop under a written rent agreement executed between him and the landlord---Effect---Mere execution of an agreement to sell by the landlord without termination of relationship of landlord and tenant, does not absolve the tenant from paying the rent.

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

----S. 17(2)(9)---Ejectment petition---Contention of the tenant was that he was not served with a notice prior to filing of ejectment petition---Court rejected such plea at the appellate stage because it was not taken up in reply to the ejectment petition nor in the evidence by the tenant--­Facts admitted are not to be proved---No occasion for the Court to proceed further---Rent Controller passed order of eviction against the tenant and for payment of rent alongwith arrears of rent---Appeal of tenant against such order was dismissed with costs.

Muhammad Arif Alvi for Petitioner.

Syed Muhammad Hussain Shah Qadri and Iftikhar Ahmad Rathore for Respondent.

Date of hearing: 25th February, 2003.

2003 M L D 1231

[Lahore]

Before Sayed Zahid Hussain, J

Mian SHAUKAT ALI and another---Petitioners

Versus

SECRETARY, IRRIGATION, GOVERNMENT OF PUNJAB, LAHORE and 13 others---Respondents

Writ Petition No.21682 of 1998, heard on 10th April, 2003.

(a) Canal and Drainage Act (VIII of 1873)---

----S.20---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Natural justice, principles of---Withdrawal of the approval for bifurcation of distributory without notice and opportunity of hearing--­Such order per se offended and being violative of the principles of natural justice, was not sustainable.

(b) Canal and Drainage Act (VIII of 1873)---

----S. 20---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Grant of approval for bifurcation of distributory by Superintending Canal Officer subject to approval of the Authority--­Authority granted approval but subsequently withdrew the same--­Validity---Petitioners could not, for taking benefit, concede to authority the power and assail the same when the order went against them--­Approbation and reprobation in the proceedings was neither permissible nor could be sanctified.

A.R. Khan v. P.N. Boga through Legal Heirs PLD 1987 SC 107 fol.

(c) Administration of justice---

---- Approbation and reprobation---Permissibility---Approbation and reprobation in the proceedings is neither permissible nor could be sanctified.

A.R Khan v P.N Boga through Legal Heirs PLD 1987 SC 107 fol.

Malik Muhammad Akram Khan Awan for Petitioners.

Jawad Malik, A.A.-G. for Respondents Nos. 1 to 4.

Ch. Rashid Ahmad for the Complainant.

Nemo for the Remaining Respondents.

Date of hearing: 10th April, 2003.

2003 M L D 1234

[Lahore]

Before Dr. Munir Ahmad Mughal, J

MUHAMMAD ABDULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.502 of 1999, heard on 8th March, 2000.

Prevention of Corruption Act (II of 1947)----

----S.5(2)---Penal Code (XLV of 1860), S.161---Appreciation of evidence---Where none of the witnesses had heard the conversation between the complainant and the accused to establish that money was paid as bribe and where even complainant had not come forward to support his own case, only inference that could be drawn according to criminal justice, was that prosecution had failed to prove its case against accused beyond reasonable doubt and in such circumstances, conviction of accused was not warranted---Not only conflict existed between the prosecution witnesses with regard to constitution of raiding party, but also with regard to ocular evidence---Conviction and sentence awarded to accused by Trial Court, were set aside and he was ordered to be released.

Muhammad Amir for Appellant.

Mian Abdul Qayyum Anjum for the State.

Date of hearing: 8th March, 2000.

2003 M L D 1238

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

Mst. SUGHRAN and others---Petitioners

Versus

ALLAH DITTA and others---Respondents

Civil Revision No.235 of 1999, decided on 17th September, 2002.

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)---

----S.10---Evacuee property---Auction purchaser, right of---Auction purchaser/successful bidder, after auction once held, could not be deprived of it till such time that formal order of cancellation of auction was passed against him.

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

----S. 8---Limitation Act, (IX of 1908), Art 120---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.10---Suit for possession of shop purchased in auction from Settlement Authorities in year 1960---Allotment in favour of plaintiff was challenged before Settlement Authorities and before High Court---High Court initially issued stay order with regard to possession of shop, but finally decided dispute between parties on 26-10-1992---Plaintiff filed suit on 7-9-1994---Trial Court decreed suit, but Appellate Court set aside same being time-barred---Validity---Order of Settlement Authorities that disputed shop was independent unit from very beginning was upheld by High Court---Such judgment of High Court had not been further challenged---Parties had been litigating for their own claims and titles, thus, time taken in such proceedings was to be excluded in computing period of limitation for filing such suit---Stay order was in field and parties could not assail same---High Court set aside impugned judgment being outcome of misreading and non-reading of evidence.

Lt. Maseel Ahmad v. Punjab Sport Control Board through Director of Sports, Ex-Officio Secretary, Punjab Sports Control Board, Lahore 1974 SCMR 492; Ghulam Ali v. Akbar alias Akoor and another PLD 1991 SC 957; Muhammad Nawaz v. Muhammad Khan and 5 others 1989 CLC 2140; Facid-uz-Zafar and others v. Ghulam Muhammad another 1984 SCMR 1167 and Ghulam Farid v. Muhammad Aslam Khan and 26 others 2000 MLD 1737 ref.

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

----O.VII, Rr. 3 & 11---Description of disputed property---Neither suit could be dismissed nor plaint could be rejected on account of any insufficient description or inconsistency between description by boundaries and by areas.

Fazal Hussain and another v. Abdul Hamid PLD 1971 Lah. 89 ref.

Abdul Rashid Randhawa for Petitioners.

Khalid Iqbal Mian for Respondents.

Date of hearing: 10th September, 2002.

2003 M L D 1247

[Lahore]

Before Mian Muhammad Jahangier, J

MUHAMMAD ASAD ALI ---Appellant

Versus

FEDERAL PUBLIC SERVICE COMMISSION OF PAKISTAN, ISLAMABAD through Chairman/Secretary/Dy. Asstt. (CSS) Director and 2 others---Respondents

First Appeal from Order No. 106 of 2002, heard on 21st August, 2002.

Federal Public Service Commission Ordinance (XLV of 1977)---

----S.7(3)(d)---Rejection of candidature for competitive examination--­Candidate was prematurely and compulsorily retired from Pakistan Army and he applied for Central Superior Services of Pakistan---Application form of the candidate was initially accepted and he was allowed to take written test but .later on, Federal Public Service Commission, on the basis of a letter issued by General Headquarters of Pakistan Army, declared the candidate as unfit for the civil service---Letters issued by the General Headquarters stated that the candidate was not fit for civil service op moral grounds but nature of allegation against the candidate and punishment awarded to him was not mentioned---Validity---Held, there was silence as to what was the nature of the allegation against the candidate on moral side, therefore, documents brought on record by the Federal Public Service Commission were not worthy of any reliance as the same might be based upon mala fides---Orders passed by the federal Public Service Commission were set aside and High Court directed the Commission to announce the result of the candidate---Appeal was allowed accordingly.

Miss Rubia Abrar v. Pakistan (for purposes of service of Notice through Secretary, Ministry of Defence, Rawalpindi) and 3 others 1993 MLD 1193; Ch. Irshad Ahmad v. Pakistan through Secretary, Finance Division Islamabad, 1990 MLD 1802; Messrs Diamond Industries (Pvt.) Ltd. v. Government of Pakistan and others 1996 MLD 654; Muhammad Tufail v. Lahore Development Authority and others 1997 MLD 2642; Tariq Nawaz and another through the Secretary, Ministry of Health, Islamabad and another 2000 SCMR 1956; Muhammad Ishaq v. Sarhad Development Authority and others 1984 CLC 126; Ch. Saeed Ahmed v. Federation of Pakistan through the Secretary, Finance Division, Islamabad and 2 others 1996 SCMR 256 and Federation of Pakistan through Secretary, Government of Pakistan, Establishment Division, Islamabad v. Mirza Muhammad Irfan Baig and 4 others 1992 SCMR 2430 ref.

Ch. Afrasiab Khan for Appellant.

Ch. Sultan Mansoor, Deputy Attorney-General alongwith Bashir Ahmad, Deputy Director, F.P.S.C and Haji Aadam, Asstt. Director, F.P.S.C. for Respondent.

Date of hearing: 21st August, 2002.

2003 M L D 1252

[Lahore]

Before Farrukh Lateef, J

RIAZ HUSSAIN ---Petitioner

Versus

Sardar RIAZ HUSSAIN and others---Respondents

Civil Revision No. 1228 of 2002, decided on 12th December, 2002.

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

----O.IX, R.13 & O.XVII, R.3---Specific Relief Act (I of 1877), S.12--­Suit for specific performance---Setting aside of ex parte decree--­Defendant had moved an application for setting aside of ex parte decree against him which application had been dismissed by the trial Court as evidence of the defendant was closed for his failure to produce evidence---Appellate Court had upheld the judgment of the Trial Court--­Validity---Order sheet of the Trial Court showed that defendant was provided sufficient opportunities to produce his evidence and on 20-6-2002 when evidence was again not present as usual, case was adjourned on the request of defendant's counsel to 10-9-2002 with clear indication that it was the last opportunity---Defendant's counsel on the said date was present but neither the defendant nor his evidence was there---Record did not indicate that any explanation for non-production of evidence on that day was given by the defendant's counsel or any request for further adjournment, was made by him hence in the circumstances no illegality was committed by the Trial Court in closing the defendant's evidence and dismissing his application for want of evidence---Reasons given by the Appellate Court for dismissing the appeal were cogent and plausible and the impugned order did not suffer from any illegality or infirmity and was consequently maintained.

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

----O.XVII, R.3---Court may proceed notwithstanding either party fails to produce evidence---Defendant had assailed the orders passed by the Trial Court under O.XVII, R.3, C.P.C.---Validity---Adjournment having been granted at the instance of the defendant's counsel with clear indication that same was the last opportunity, contention of the defendant was without force.

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

----S.115---Revision---Scope---Section 115, C.P.C. is directed against irregular exercise, non-exercise or illegal assumption of jurisdiction and not against conclusions of tact of law not involving question of jurisdiction.

Allied Bank of Pakistan Limited v. Abdur Rehman Khan and 2 others 1986 CLC 3021 and Zulfiqar v. Muhammad Jan 2002 CLC 932 ref.

M. Fazil Muhammad for Petitioner.

2003 M L D 1255

[Lahore]

Before Khawaja Muhammad Sharif J

MANZOOR HUSSAIN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.21 of 2003, heard on 8th April, 2003.

Penal Code (XLV of 1860)---

---Ss.337-A(i), 337-A(ii) & 325---Anti-Terrorism Act (XXVII of 1997), S.7(h)---Appreciation of evidence---Prosecution had not produced any F.I.R. to prove involvement of accused in any earlier case, nor any proceedings under Ss.87/88, Cr.P.C. were produced to prove that be was a proclaimed offender in the some case---Injuries on the person of the accused showed that they were physically tortured by the police who, in order to conceal their ugly and evil designs and to save themselves from the law had got the false case registered against the accused---Injuries sustained by the accused were not self-inflicted---One of the accused could not be believed to have tried to cut his throat with a blade in the presence of so many police officials---Accused were acquitted in circumstances.

Anwar Ahmad Qureshi for Appellant.

Ashfar Ahmad Chaudhry for the State.

Date of hearing: 8th April, 2003.

2003 M L D 1265

[Lahore]

Before Maulvi Anwarul Haq, J

UMAR FAROOQ---Petitioner

Versus

GHAZALA FARHAT and 2 others---Respondents

Writ Petition No.890 of 2003, decided on 14th April, 2003.

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

----S.5 & Sched.---Constitution of Pakistan (1973), Art.199--­Constitutional petition ---Respondent/lady filed suit for maintenance from January, 1998 till the expiry of Iddat period which was decreed--­Contention of the husband was that since the lady had been divorced before filing of the maintenance suit, she could neither file a suit for maintenance nor was she entitled to the same and Family Court had acted without jurisdiction by passing the decree for maintenance in favour of the lady---Validity---Lady was entitled to claim maintenance up to the expiry of Iddat period.

Malik Ghulam Mustafa Kanwal for Petitioner.

2003 M L D 1266

[Lahore]

Before Ijaz Ahmad Chaudhary, J

MUHAMMAD TUFAIL and another---Petitioners

Versus

SALAH-UD-DIN through Legal Heirs and others---Respondents

Civil Revision No.865-D of 1991, heard on 15th August, 2002.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration---Plaintiffs had claimed that they were the only legal heirs of deceased being sons of deceased and were solely entitled to receive property left by deceased and that predecessors-in-­interest two ladies of defendants were not daughters of deceased and had no concern to property left by deceased father of the plaintiffs---Onus was on plaintiffs to prove that two ladies/predecessors-in-interest of defendants were not daughters of their father---Plaintiffs produced only oral evidence to discharge that burden, whereas defendants had produced documentary evidence to prove that deceased ladies were daughters of father of plaintiffs---Trial Court taking into consideration documentary evidence produced by defendants, dismissed the suit, but Appellate Court setting aside judgment of Trial Court, decreed the suit---Validity---Oral evidence produced by plaintiffs not only was rebutted by defendants but defendants also had produced cogent and convincing documentary evidence---Oral statements of plaintiffs, .and their witnesses were not sufficient to dislodge documentary evidence produced by 4efendants to prove that two ladies being daughters of deceased were legal heirs of deceased---Appellate Court had given preference to oral evidence against documentary evidence which evidence was also supported by oral statements of witnesses of defendants---Judgment of Appellate Court being based on surmises and conjectures not supported by evidence on record was not sustainable in eye of law which was set aside by High Court and that of Trial Court was restored.

Imtiaz Hussain Khan Baloch for Petitioners.

Syed Muhammad Javed Rizvi for Respondents.

Date of hearing: 15th August, 2002.

2003 M L D 1271

[Lahore]

Before Sayed Zahid Hussain, J

Mst. IQBAL BEGUM---Petitioner

Versus

EVACUEE TRUST PROPERTY BOARD, GOVERNMENT OF PAKISTAN and another---Respondents

Writ Petition No.4401 of 2003, decided on 10th April, 2003.

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

----S. 17---Constitution of Pakistan (1973), Art. 199---Lease in favour of the petitioner had been cancelled, and such cancellation was upheld by all the Authorities in the statutory hierarchy---Federal Government restored the lease at revisional stage subject to increase in the lease money, on the request of the petitioner and written consent that she would withdraw the pending Constitutional petition---Order in question was per invitum and assertion of duress and coercion by the petitioner, being an afterthought could not be accepted---Petitioner could not be heard to repudiate her stance or resile from her own undertaking and assail the order.

Haji Muhammad Asghar v. Malik Shah y-Muhammad Awan and another PLD 1986 SC 542 and A.R. Khan v. P.N. Boga through Legal Heir PLD 1987 SC 107 fol.

Nayyar Iqbal Ghauri for Petitioner.

2003 M L D 1273

[Lahore]

Before Muhammad Farrukh Mahmud, J

IMTIAZ HUSSAIN ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 185-B of 2003/BWP, decided on 1st April, 2003.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), Ss. 324/337-A(iii)(iv)/34--­Bail, grant of---Further inquiry---Investigation of case had been completed and the accused had been sent to judicial lock-up---Cross-case was registered on the statement of the accused and after investigation challan in that case had also been sent up---Case being of two versions, same needed further probe and inquiry---Accused was admitted to bail, in circumstances.

Malik Muhammad Aslam and Khalid Pervaiz Uppal for Petitioner.

Rana Hassan Ali for the Complainant.

Wajid Aftab Missan for the State.

2003 M L D 1276

[Lahore]

Before Farrukh Lateef, J

Mst. HABIB-UN-NISA---Petitioner

Versus

Mst. MUHAMMAD-UN-NISA---Respondent

Civil Revision No. 539 of 1992, decided on 11th March, 2003.

(a) Qanun-e-Shahadat (10 of 1984)---

----Art.59---Civil Procedure Code (V of 1908), S.115---Report of Finger Print Bureau was exhibited during evidence without any objection--­Objection that the said report could not have been considered, could not be entertained at revisional stage.

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

----S.115---Revision---Assessment and appraisal of evidence ---Scope--­Assessment and appraisal of evidence is the function of the Trial Court and its Appellate Court which are vested with exclusive jurisdiction in that regard---Discretionary with the Trial Court and the Appellate Court to believe or disbelieve the evidence ---Revisional jurisdiction is not attracted merely because another view is possible on the same evidence unless the finding is based on no evidence or is arbitrary or fanciful.

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

----S.115---Revisional jurisdiction---Scope---Where conclusions arrived at by Courts below are based on sound and plausible reasoning, interference in revisional jurisdiction is not warranted as such jurisdiction is directed against irregular exercise, non-exercise or, illegal assumption of jurisdiction and not against conclusions of fact or law not involving question of jurisdiction.

(d) Practice and procedure---

---- After the evidence is led by the parties on all the controversial points the objection regarding framing of issues is not of much significance.

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

----S.115---Revision---Scope---Words illegally or with material irregularity'-- Connotation---Words `illegally or with material irregularity' have reference to material defects of procedure and not to errors of law or fact, after the formalities which the law prescribed have been complied with---Alleged commission of any error of procedure by the two Courts below having not been pointed out, High Court, dismissed the revision petition.

Kanwar Akhtar Ali for Petitioner.

Malik Muhammad Shabbir Langrial for Respondent

Date of hearing: 11th March, 2003.

2003 M L D 1280

[Lahore]

Before Ch. Ijaz Ahmad, J

Mst. IQBAL BEGUM and 2 others---Petitioners

Versus

MUHAMMAD BASHIR and others---Respondents

Civil Revision No.846-D of 1998, heard on 31st March, 2003.

(a) Qanun-e-Shahadat (10 of 1984)---

----Arts. 17 & 79---Proof of execution of document---Preconditions to invoke provisions of Art. 17, Qanun-e-Shahadat 1984 are that matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two male persons---Where the document is required by law to be attested, the factum of non-production of attesting witnesses under Art. 79 of the Qanun-e-Shahadat, 1984 is reconstructive in nature and applies only to those documents which are required by law to be attested by two witnesses.

(b) Islamic Law---

----Gift---Validity---Gift deed had to be registered.

Ismail Sayed and another v. Commissioner of Karachi and another 1968 SCMR 509 ref.

(c) Qanun-e-Shahadat (10 of 1984)---

----Art. 79---Gift deed---Proof of document to be attested---Evidence could be admitted to prove the signatures of the attesting witness until absence of the attesting witness had been duly accounted for---Where the attesting witness was said to have expired contents of the gift deed had to be proved by producing secondary evidence.

Swamidin Sing and another v. Kaneez Fatima and others 11 Ind. Cas. 225; Jadunath Mitra v. Isar Jha and others AIR 1939 Pat. 47; Mst. Bashiran v. Muhammad Hussain and others AIR 1941 Oudh 284; Abinash Chandra Bidyanidhi Bhattacharjee v. Dasarath Mali and others AIR 1929 Cal. 123; Shib Chandra Singh a and others v. Gour Chandra Paul and others AIR 1922 Cal. 160; Sheikh Karimullah v. Gudar Koeri and others AIR 1925 All. 56; Ponnuswami Goundan v. Kalyanasundara Iyer and others AIR 1934 Mad. 365 and Ponnuswami Goundan v. Kalyanasundara Iyer and others AIR 1930 Mad. 770 ref.

(d) Qanun-e-Shahadat (10 of 1984)---

----Arts. 103 & 102---Registration Act (XVI of 1908), S.60---Transfer of Property Act (IV of 1882), S. 54---Gift deed---Certificate of registration---Endorsement as to the receipt of consideration/possession is refutable and it is always upon to the other party to refute the same on the ground that it was fictitious meaning thereby that the admission of execution before the Registrar is not sufficient.

Muhammad Shafi's case PLD 1986 SC 519; Deorao v. Dhondirao and others AIR 1928 Nag. 244 and Siraj Din's case PLD 1997 Lah. 633 ref.

(e) Islamic Law---

----Gift---Validity--Delivery of possession---Gift deed was not valid if the possession of the donee of the property so gifted in terms of deed was not proved.

Muhammad Bakhsh v. Ellahi Bakhsh and others 2003 SCMR 286 ref.

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

----S. 96---First Appellate Court has to reverse the findings of the Trial Court after meeting with the reasoning of the Trial Court---Where the First Appellate Court did not advert to the reasoning of the Trial Court in the impugned judgment, such judgment of the First Appellate Court was violative of principles.

Madan Gopal v. Maran Berpari PLD 1969 SC 617, and Kanwal Nain's case PLD 1983 SC 53 ref.

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

----S. 115---Revision---Scope---Where the decision on facts by the Appellate Court was based on no evidence, inadmissible evidence or was so perverse as to cause grave injustice, the Appellate Court had committed material irregularity and High Court, under S. 115, C.P.C. had ample jurisdiction to disturb such findings of facts.

Shaukat Nawaz's case 1988 SCMR 851 ref.

(h) Islamic Law---

----Gift---Validity---Where the contents of the gift deed were not proved and the statements of concerned persons were contradictory, High Court ordered that the property, in question, of the deceased donor be distributed amongst the legal heirs of the original owner in accordance with the Injunctions of Islam and Revenue Authorities were to sanction the mutation of inheritance accordingly.

Ghulam Farid Sanotra and Noor Muhammad Awan for Appellants.

Malik Abdul Wahid for Respondents.

Date of hearing: 31st March, 2003.

2003 M L D 1292

[Lahore]

Before Farrukh Lateef, J

AHMED ZAMAN KHAN---Appellant

Versus

Ch. NAZEER AHMED and others---Respondents

Regular Second Appeal No.44 of 1996, decided on 11th March, 2003.

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

----S. 12---Transfer of Property Act (IV of 1882), S.41---Suit for specific performance of agreement to sell---Suit was concurrently Courts below while deciding against the appellant concluded that respondents were bona fide purchasers for value without notice and the appellant failed to prove his case---High Court declined interference in Second Appeal.

(b) Suits Valuation Act (VII of 1887)---

----S. 8---Valuation -and form of suit---Contention of appellant was that when it was found by both the Courts below that suit was properly valued and was also in proper form, it could not have been legally dismissed---Validity---Suit was not dismissed on the objection of its valuation and form---If the valuation and form of the suit was found to be correct it did not mean that it could not be dismissed for any other reason.

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

----S. 100---Second appeal---Concurrent findings---Interference/reappraisal of evidence---Scope---Reappraisal of evidence in second appeal in case of concurrent findings of Courts below, could not be made on the ground that another view of the same evidence was possible--­Concurrent findings of fact recorded by Courts below could only be interfered with in second appeal on the ground that material piece of evidence was misread or overlooked---Concurrent findings and judgments of Courts below in the present case, were based on judicial consideration of evidence---Neither there appeared to be any misreading of evidence nor any material piece of evidence appeared to have been overlooked nor there was jurisdictional error nor any aspect of the case was ignored nor any jurisdictional error was committed by any of the two Courts below---High Court, in circumstances, dismissed the appeal.

Muhammad Akhtar Khan for Appellant.

Sardar Mushtaq Ahmad for Respondents Nos.2, 12, 18-A, 20F, 21, 23 and 25-A.

Date of hearing: 6th March, 2003.

2003 M L D 1296

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD YAQOOB---Petitioner

Versus

SESSIONS JUDGE, KASUR and 2 others---Respondents

Criminal Revision No. 30 of 2003, decided on 20th March, 2003.

Criminal Procedure Code (V of 1898)---

----Ss.265-F(2), 439 & 540---Penal Code (XLV of 1860), S.302--­Petition for summoning of witnesses---Petition by the complainant under S.265-F(2), Cr.P.C. for summoning of two persons as prosecution witnesses who claimed to be eye-witnesses of occurrence, was dismissed by the Trial Court on the ground that neither, said persons were named in the F.I.R. nor in supplementary statements got recorded by the complainant twice with the Police---Court, under S.265-F(2), Cr.P.C. had to elicit from Public Prosecutor, names of all such persons likely to be acquainted with facts of prosecution case as submitted by police challan---Court, under S. 540, Cr.P.C. had power to summon at any stage of an inquiry, trial or other proceedings under Criminal Procedure Code, any person as a witness or examine any person in attendance, though not summoned or to recall and re-examine any person already examined, if evidence of such persons appeared to be essential for the just decision of the case---Complainant in the present case, though had not named persons intended to be summoned as eye-witnesses of the occurrence, but conduct of the complainant had proved that said persons were material as according to him they were eye-witnesses of the occurrence and they could not appear during investigation due to political influence---Trial was still in progress---Complainant had appeared as a prosecution witness and stated that he was informed by said two persons having seen the accused committing murder of son of the complainant--­Evidence of the witness was to be evaluated by the Trial Court under the law to arrive at just decision of the case and by mere examining those witnesses, no prejudice would be caused to the accused as the accused would have full opportunity to cross-examine those witnesses---Order of Trial Court dismissing petition of complainant for summoning of said two witnesses, was set aside and keeping in view the peculiar circumstances of case and for safe administration of justice, Trial Court was directed to summon said persons and to record their statements as prosecution witnesses, in accordance with law.

Abdur Rashid v. The State 1980 PCr. LJ 1119 and Mst. Shama Akram v. Muhammad Latif alias Teefa alias Liaqat and 7 others 2001 YLR 746 ref.

Maaz Allah Khan Sherwani for Petitioner.

Ahmad Javed Jillani for Respondent No. 2.

Najeeb Faisal Ch., Additional A.-G.

2003 M L D 1306

[Lahore]

Before Abdul Shakoor Paracha, J

Mst. NASEEM KAUSAR---Petitioner

Versus

MUHAMMAD SALEEM and 2 others---Respondents

Writ Petition No. 5927 of 2002, heard on 7th April, 2003.

(a) Guardians and Wards Act (VIII of 1890)---

----Ss. 17 & 25---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Guardianship---Custody of minor---Supreme consideration to be the welfare of the minor, coupled with his own wish---Both the parents of the minor, in the present case, after separation, had remarried and had children from the new wedlock--­Minor boy was 10 years of age and capable of performing intelligent preference and had given his preference to live with his mother, such preference of the minor could not be ignored---Father being a shopkeeper was expected to be busy outside the house and the minor was to remain with the step-mother at home, mother of the minor, in circumstances, could impart love and affection to the minor alongwith her other children born from the second wedlock---High Court ordered that, minor who was present in the Court, be handed over to the mother.

Mst. Ghazala Yamin v. Muhammad Yamin and others 1987 MLD 2940; Mst. Hameed Mai v. Irshad Hussain PLD 2002 SC 267; Mst. Firdous Iqbal v. Shifaat Ali and others 2000 SCMR 838; Capt: S.M. Aslam v. Mst. Rubi Akhtar 1996 CLC 1; Mst. Sakina Bibi v. Muhammad Bakhsh and others 1987 CLC 2356; Mst. Sharifan Bibi v. District Judge, Bahawalpur and 2 others 1988 CLC 1835; Mst. Saeeda Begum v. The IVth Additional District Judge (South) and others 1988 MLD 1055; Mst. Saeeda Begum and others v. III-Senior Civil Judge (West), Karachi and others 1988 MLD 1918; Mst. Nazir v. Hafiz Ghulam Mustafa and others 1981 SCMR 200; Mst. Surraya Bibi v. Abdur Rashid 1982 SCMR 892; Mst. Talat Nasira v. Mst. Munawar Sultana and 2 others 1985 SCMR 1367; Mst. Rubia Jilani's case 1999 SCMR 1834 and Muhammad Bashir's case PLD 1953 Lah. 73 ref.

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

----Ss. 17 & 25---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Guardianship---Custody of minor---Welfare of minor---Contention of the father was that at the time of the divorce between the spouses, custody of the minor was handed over to him on the basis of a private agreement and now the mother could not assert her right of custody---Validity---Held, neither custody of minor in all cases could be effectively settled by private agreement nor such principle of estoppel was of universal application---Matter depended on case to case basis, and the circumstances in which the agreement between the spouses regarding custody of the minor children could be made basis for the decision.

Mst. Hameed Mai v. Irshad Hussain PLD 2002 SC 267 ref.

(c) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Findings of fact by the Tribunal below---Interference by High Court---Scope---High Court, normally did not interfere with the findings of fact recorded by the Tribunal of special jurisdiction in respect of matters, exclusively within its competence, unless there had been a serious misreading or mis-appreciation of evidence on the part of Tribunal or there had been failure on its part to take into consideration material facts or to apply statutory law or any principle or rule of law.

Mahmooda Begum v. Taj Din 1992 SCMR 809 ref.

Bushra Inayatullah for Petitioner.

Muhammad Jawad Butt for Respondents.

Date of hearing: 7th April; 2003.

2003 M L D 1316

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

SHARAFAT ALI ---Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.756 of 1998 and Murder Reference No.327 of 1998, heard on 13th January, 2003.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---No explanation for the presence of the eye-witnesses at the spot had come on record---No one from the place of occurrence had been cited or produced as a witness---Both alleged eye-witnesses had no business or agricultural land near the place of occurrence---Presence of said witnesses at the spot at the time as alleged by the prosecution, was doubtful and not confidence inspiring--­Patwari as prosecution witness had admitted in his cross-examination that he had not mentioned the names of the eye-witnesses and the accused to the site-plan prepared by him---Such was a glaring omission on the part of the prosecution ---Post-mortem report of the deceased had proved that occurrence had taken place in early hours of the morning and was un-­witnessed one---Duration between death of the deceased and his post­mortem examination given by Doctor who conducted was post-mortem, did not fit in with the time of occurrence given by the prosecution--­Weapon used in the offence according to prosecution was rifle 7 mm, but diameter of the injury on the person of the deceased was 1 c.m. x 1.5 c.m. and the injury with such diameter could not have been caused by a empty was taken into possession from the spot and the rifle allegedly recovered on the pointation of the accused was his licensed rifle---Motive of occurrence had not been proved---Alleged eye­witnesses being chance witnesses, their presence at the spot was doubtful---Conflict existed between ocular account and medical evidence---Prosecution, in circumstances, had failed to prove its case against the accused beyond any doubt and defence had been able to create dents in the prosecution story---Conviction of the accused on a capital charge thus could not be maintained---Conviction and sentence awarded to accused by the Trial Court, were set aside and the accused was acquitted of the charge.

1968 SCMR 161; 1978 PCr.LJ 24; 1999 SCMR 1668 and PLD 2002 SC 77 ref.

Hussain Aziz Bhatti for Appellant (at State expenses).

Mrs. Iram Sajjad Gul for the State.

Date of hearing: 13th January, 2003.

2003 M L D 1321

[Lahore]

Before Ijaz Ahmad Chaudhry, J

IFTIKHAR AHMAD FAROOQI--Petitioner

Versus

TILE STATE---Respondent

Criminal Miscellaneous Nos.4083-B on 4084 of 2002, decided on 25th June, 2002.

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

----S. 498---Penal Code (XLV of 1860), Ss. 420/468 & 471---Ad-interim bail, confirmation of---Possibility of false implication of co-accused in the case could not be ruled out as complainant prima facie had introduced a different story to involve co-accused in the case as he was son of main accused who allegedly had issued cheques in favour of complainant which had not been encashed due to insufficiency of funds in account of the accused---Mala fides of complainant, in circumstances, could not be ruled out to falsely implicate co-accused/son of main accused, in the case ---Co-accused having succeeded in making out a case for bail before arrest, ad-interim bail before arrest already granted to him, was confirmed---Accused who was father of co-accused admittedly had issued cheques of huge amount in favour of the complainant which were not encashed due to insufficiency of funds---Accused, in circumstances, prima facie was guilty of offence---Accused, in circumstances, was not entitled to extraordinary relief for grant of bail before arrest because bail before arrest was meant to protect innocent citizens-who were involved falsely with mala fide intention and ulterior motive whereas sufficient evidence was on record to connect the accused with the commission of the crime.

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

----S. 498---Bail before arrest---Object---Bail before arrest was meant to protect innocent citizens who were involved falsely with mala fide intention and ulterior motive.

M. Shahid Maqbool Sheikh for Petitioner (in Criminal Miscellaneous No.4083-B of 2002).

Syed Ali Zafar for Petitioner (in Criminal - Miscellaneous No.4084-B of 2002).

Aftab Ahmad Bajwa for the Complainant.

Mareena Chaudhry for the State.

2003 M L D 1324

[Lahore]

Before Farrukh Lateef, J

KARIM BAKHSH and others Petitioners

Versus

MUHAMMAD BAKHSH and others---Respondents

Civil Revision No.848-D of 2002, decided on 19th August, 2002.

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

----S.115---Revisional jurisdiction, exercise of---Scope---Appraisal of evidence falls outside the scope of revision and revisional jurisdiction would not be attracted merely because another view in the matter was also possible.

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

----S.115---Revisional jurisdiction, exercise of---Where conclusions arrived at by Courts below were based on sound and plausible reasoning, interference in revisional jurisdiction was not warranted, especially when there was no breach of any provision of law or commission of any error of procedure by any of the two Courts below.

(c) Specific Relief Act (I of 1877)---

----S.42---Suit for declaration ---Competence---Plaintiff's possession over suit-land having been admitted, suit for declaration was competent without seeking further relief.

Muhammad Ameer Bhatti for Petitioner.

2003 M L D 1329

[Lahore]

Before Bashir A. Mujahid, J

Mst. HANIFAN BIBI---Petitioner

Versus

I.-G. POLICE and others---Respondents

Writ Petition No. 13285 of 2002, decided on 8th November, 2002.

Guardians and Wards Act (VIII of 1890)---

----S. 25---Constitution of Pakistan (1973), Arts. 199 & 204---Constitutional petition---Contempt of Court---Petition for custody of minor daughter filed by the mother was allowed against the father up to the level of High Court but father did not deliver custody of minor to the mother--Attendance of father was procured through police by adopting coercive measures---Custody of minor was handed over to the mother and father proceeded under Art.204 of Constitution for flouting the orders of the Court and sentenced to three months" R.I. and fine of Rs.5,000 on non-payment of the fine he was to further undergo one month's simple imprisonment---Half of the fine, if realized, was ordered to be paid to the mother.

Mansoor Ali Bukhari for Petitioner.

Ahmad Bakhsh Bharwana for Respondent No.4.

Muhammad Sarwar for Respondent No.4.

Mrs. Tayyaba Ramzan, A.A.-G.

2003 M L D 1334

[Lahore]

Before Farrukh Lateef, J

HAQ NAWAZ---Petitioner

Versus

MUKHTIAR AHMED ---Respondent

Civil Revision No.879 of 2002, decided on 26th August, 2002.

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

----Ss.42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and perpetual injunction---Grant of stay order, application for---Plaintiff filed suit seeking declaration that he was owner of suit property and that defendant had got no concern with the same--­Plaintiff by way of consequential relief had also sought perpetual injunction against the defendant---Stay application was also moved by plaintiff which was accepted by Trial Court, but was dismissed by Appellate Court---Plaintiff was inducted in suit property as a tenant by defendant and defendant by filing ejectment application against plaintiff had got ejectment order which order had attained finality as it was not challenged by plaintiff before any higher forum----Plaintiff being tenant under defendant could not challenge title of defendant (landlord) without first surrendering possession to the defendant---Plaintiff could hardly be deemed to possess a prima facie case for grant of interim injunction--­Stay application filed by plaintiff was rightly dismissed by Appellate Court---Conclusion arrived at by Appellate Court being based on sound and plausible reasons, interference of High Court was not warranted.

(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 or illegal assumption of jurisdiction and not against conclusion of fact or law not involving question of jurisdiction.

Ashfaque Ahmad Khan for Petitioner.

2003 M L D 1337

[Lahore]

Before Sayed Zahid Hussain, J

SAFDAR AHMAD---Petitioner

Versus

Malik AHMAD KHAN, and 5 others---Respondents

Civil Revision No. 1443 of 2002, decided on 20th September, 2002.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Temporarx injunction, grant of---Nature--­Temporary injunction could be granted by the Court to regulate' the conduct and dealings of the parties for securing their interests---Any view expressed or observation made by Court in any order, would be construed as of tentative nature concerning with an interlocutory matter only and Trial Court would be absolutely uninfluenced by the same in deciding the suit on its merits.

Muhammad Arif Effendi v, Egypt Air 1980 SCMR 588 and Muhammad Arif Effendi v. Egypt Air 1983 SCMR 238 ref.

Malik Noor Muhammad Awan for Petitioner.

Muhammad Ramzan Chaudhry for Respondent No. 1.

2003 M L D 1340

[Lahore]

Before Sayed Zahid Hussain, J

BANK OF PUNJAB---Petitioner

Versus

MUHAMMAD PERVEZ MALIK and another---Respondents

Criminal Original No.39-W of 2001, decided on 31st October, 2002.

Constitution of Pakistan (1973)---

----Art. 204---Contempt of Court Act (LXIV, of 1976), Ss. 3/4--­Contempt of Court---Contempt petition was brought by the Bank alleging the non-adherence to agreement/undertaking by the respondents--­Respondents had contended that alleged agreement/undertaking was an agreement agreed to by the parties out of the Court and it was not an undertaking given to the Court---Validity---To disobey or disregard an order; direction or process of Court which a person was legally bound to obey; wilfully breach of an undertaking given to a Court, any act intended to or tend to bring the authority of the Court or the administration of law into disrespect or disrepute and to obstruct, interfere, interrupt or prejudice the process of law or the due course of any ,judicial proceedings, no doubt would fall within the category of contempt of Court---Court was, however, to see in the peculiar facts and circumstances of a case whether any undertaking was given to the Court which was being violated by the party---Where undertaking was given to a party, the Court would record compromise between the parties and pass a decree/order and it would not amount to an undertaking to the Court---If in such a case breach was committed by any of the parties, it would not amount to contempt of Court, but if a party promised to the Court or gave an undertaking to the Court which was recorded or on the basis of such undertaking, order was passed, then breach of such undertaking would be contempt of Court---Tenor of Court's order, in the present case, had eminently showed that it was an arrangement arrived at between the parties through offer and acceptance made and accepted, which was merely noted by the Court---No order affirming the said arrangement between the parties existed which could in any way be construed as undertaking given to the Court and accepted by it---No case for initiation of proceedings of contempt had been made out, in circumstances.

Naveed Nawazish Malik v. Ghulam Rasool Bhatti and another 1997 SCMR 193; Saleemuddin and another v. Sharfuddin and others AIR 1980 Delhi 39 and Bajranglal Gangadhar Khemka and another v. Kapurchand Ltd. AIR 1950 Born. 316 ref.

Ghulam Haider Al-Ghazali for Petitioner.

Syed Hamid Ali Shah for Respondents.

2003 M L D 1345

[Lahore]

Before Farrukh Lateef, J

MUHAMMAD AZAM and others---Petitioners

Versus

ADMINISTRATOR, MARKET COMMITTEE and others---Respondents

Civil Revision No.853-D of 2002, decided on 20th August, 2002.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Suit for declaration and perpetual injunction---Claim of plaintiffs was that they were in possession of suit plot as tenants of Market Committee and were carrying on business after constructing a shop thereon---Plaintiffs had challenged notice issued to them by the Committee directing them to vacate the plot after removing superstructure constructed thereon alleging the same to be illegal and ineffective on their rights---Plaintiffs, by way of consequential relief prayed that the Committee be perpetually restrained from interfering with their peaceful possession over the suit plot---Basis of plaintiff's claim was tenancy in their favour regarding suit plot, but they failed to prove their said claim as mere oral evidence of one of the plaintiffs and a witness coupled with possession of plaintiffs on suit plot and advance deposit of rent made by plaintiffs, was hardly sufficient to prove factum of tenancy---Finding of Appellate Court that plaintiffs had failed to prove their tenancy was sufficient to non-suit plaintiffs--­Judgment of Appellate Court based on sound reasons, could not be deemed as arbitrary, capricious or based on surmises and conjectures.

Sh. Muhammad Faheem for Petitioners.

2003 M L D 1349

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD AYUB---Petitioner

Versus

Mst. NASIM AKHTAR and 7 others----Respondents

Civil Revision No. 1400 of 1999, heard on 11th May, 2002.

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

----S.42---Suit for declaration---Case of plaintiff was that house in dispute was owned by his father and was his joint property alongwith other defendants and that one of the defendants who was residing in suit­ house made a gift qua suit house in favour of his wife vide registered gift deed and that she in her turn sold the suit-house to one of the defendants vide registered sale-deed---Both said transactions were stated by plaintiff to be illegal and void and he sought decree for declaration that said gift deed and sale-deed were ineffective upon his rights and other defendants and by way of consequential relief plaintiff had claimed decree for his separate possession of 2/11 share in suit-house by partition---Defendant who was residing in the house resisted the suit claiming that the house which consisted of two portions was purchased by him with his own funds in the name of his mother who in her turn gifted it to him---Suit was concurrently dismissed by Courts below---Defendant who executed gift deed in favour of his wife though had stated himself to be exclusive owner of suit-house, but no reference was at all made as to how title was acquired by him in respect of suit-house---Nothing was on record to prove that he or his mother purchased or was transferred any portion of suit-house---Said defendant in his earlier suit had clearly admitted that suit-house was owned by his father and was joint property of his sisters and brothers---Plaintiff had produced certified copy of said earlier suit filed by the defendant wherein he had admitted that suit house was owned by his father and was a joint property, but Courts below had completely failed to read said evidence on record---Concurrent judgments and decrees of Courts below were set aside and suit filed by plaintiff -was decreed accordingly.

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

----Arts.30 & 45---Admission, withdrawal of---Party was entitled to withdraw all admissions or to prove that admissions were wrong except those made in the pleadings.

Ahmad Khan v. Rasul Shah and others PLD 1975 SC 311 ref.

Faisal Zaman for Petitioner.

Mian M. Ashraf Tanvir for Respondents.

Date of hearing: 11th September, 2002.

2003 M L D 1354

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Rustam Ali Malik, JJ

Mian MANZOOR AHMAD WATTOO---Appellant

Versus

THE STATE----Respondent

Criminal Appeal No. 1350 of 2002, decided on 23rd January, 2003.

National Accountability Ordinance (XVIII of 1999)----

----Ss.15 & 25---Disqualification to contest elections or to hold public office---Validity---Accountability Court, while deciding the applications filed by the accused under S.25 of the National Accountability Ordinance, 1999, had not taken into account the fact that there was no meeting of minds between the parties regarding disqualification envisaged under S.15 of the said Ordinance, while the accused were availing plea bargaining---Accused might have filed the applications with the bona fide belief that by doing so they would not incur any "disqualification" as it was possible that they might have taken it as merely "return of gain" as envisaged by S.17 of the defunct Ehtesab Act---Impugned order was consequently set aside and the matter was sent back to the Accountability Court with the direction to hear fresh arguments on the applications filed by the accused who would be allowed to raise all the points they would want to agitate including the question of retrospectivity of "disqualification" and thereafter to decide the same afresh---Appeals were disposed of accordingly.

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

S. M. Zafar, Rana Muhammad Arshad and Ch. Bashir Ahmed for Appellant.

Naveed Rasool Mirza, Prosecutor-General, NAB and Asad Manzoor Butt, Deputy Prosecutor General, NAB.

Date of hearing: 15th January, 2003.

2003 M L D 1361

[Lahore]

Before Mian Nazir Akhtar, J

MAHBOOB SABIR and others---Petitioners

Versus

MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB, LAHORE and others---Respondents

Writ Petition No.2549 of 1988 and 14182 of 1994, decided on 23rd May, 2002.

(a) Constitution of Pakistan (1973)-----

----Art.199---Filing of report/parawise comments by respondent at pre-admission stage, but non-filing of written statement to controvert facts stated in Constitutional petition after its admission for regular hearing--­Effect---Facts stated in Constitutional petition would be deemed to have been admitted.

(b) Punjab Land Acquisition Rules, 1983-----

----Interpretation---Punjab Land Acquisition Rules, 1983 are prospective in nature and have no retrospective application.

(c) Land Acquisition Act (I of 1894)---

----S.18---Punjab Land Acquisition Rules, 1983, R.12---General Clauses Act (X of 1897), S.21---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Acquisition of land---Determination of cost--­Estimated cost of land once approved by Board of Revenue after thorough inquiry and conveyed to the Acquiring, Department was subsequently reduced without notice to the petitioners---Contention of respondent was that petitioners could agitate matter for grant of higher amount of compensation before Civil Court, where .references had already been filed under S.18 of Land Acquisition Act, 1894--­Validity---Nothing was available on record to show that interested parties had filed references under S.18 of the Act---Petitioners had filed Constitutional petitions before announcement of the award---Section 18 of Land Acquisition Act, 1894 would come into play after announcement of award and references could be filed by interested parties on the basis of their objections as to amount of compensation etc.---Section 18 of the Act, would not apply to question of determination of cost of land by Competent Authority before announcement of award---High Court could completely decide question of determination of cost made by Board of Revenue---Government was not competent to review or recall its earlier order approving the cost of land after same having been communicated to Collector and Acquiring Department to arrange deposit of approved amount of costs---Subsequent review of earlier order and reduction of price was violative of principle of audi alteram partem---High Court accepted Constitutional petition, declared impugned order of Board of Revenue to be without lawful authority and of no legal effect, resultantly earlier determination of cost of disputed land was restored.

Muhammad Hussain and others v. Member (Revenue), Board of Revenue, Punjab and others 1988 CLC 1745 fol.

Pir Khan through his Legal Heirs v. Military Estate Office, Abbottabitd and other, PLD 1987 SC 485; Behram Khan and 54 others v. Military Estate Officer and 2 others 1988 SCMR 1160; Pakistan Steel Mills Corporation Limited and others v. Deputy Commissioner (East), Karachi and others 1989 SCMR 812; I.C.1. Pakistan Limited v. Salahuddin and others 1991 SCMR 15; Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others 1991 SCMR 2193; Mian Atta Ullah v. Lahore Development Authority Tribunal and 5 others 1996 CLC 1943; Government of N.-W.F.P. and others v. Mst. Jamshed Bibi and another PLD 1997 Pesh. 19; Nazir Ahmad v. The State 1997 MLD 2641; The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279; Makhdoom Ahmad Ghaus v. Chairman, Town/Municipal Committee, Qadirpur Rawn, Multan and 3 others 1993 MLD 1987 and Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907 ref.

A.R. Shaukat for Petitioners.

Ch. Khurshid Ahmad for Respondent No.5.

Muhammad Hanif Khtana, Addl. A.-G.

Dare of hearing: 23rd May, 2002.

2003 M L D 1371

[Lahore]

Before Muhammad Khalid Alvi. J

Syed GHULAM MOHY-UD-DIN SHAH---Petitioner

Versus

GHULAM RAZA---Respondent

Civil Revisions Nos. 120 to- 122 of 2001, heard on 26th November, 2002.

(a) Practice and procedure----

---- Procedure adopted by Trial Court to record evidence was neither objected to by party nor same was prejudicial to his rights nor he raised such objection in memorandum of appeal--­Party having consented to procedure so adopted could not be permitted to raise objection at revisional stage and start a de novo trial.

1980 SCMR 879; PLD 1994 SC 865 and 1989 CLC 1651 rel.

(b) Practice and procedure---

---- Procedural defect, if not raised at relevant time before relevant Court, would lose its significance at a later stage.

Muhammad Ramzan Khalid Joyia for Petitioner.

Syed Mehmood-ul-Hassan Gillani and Mian Muhammad Bashir Bhatti for Respondent.

Date of hearing: 26th November, 2002.

2003 M L D 1378

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MAZHAR SHAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3982-B of 2001, decided on 31st July, 2001.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.406/420/119---Pre-arrest bail, grant of---Accused was mentioned in the case but no role had been ascribed to him---Statement recorded under S.161, Cr.P.C. also did not ascribe any role to accused in the commission of crime---Merely mentioning name of accused in the case would not be sufficient to make out case against him---Contention of accused that complainant had widened his net to involve all relatives of main accused, seemed to be correct---Prima facie, case of the accused was of civil nature which could not be converted into criminal offence---No reason was shown to dismiss bail application of accused as otherwise it was a case of no evidence to the extent of involvement of accused---Bail already granted to accused was confirmed, In circumstances.

Mian M. Nawaz Nazar Dhuddi for Petitioner.

Nazir Ahmad for the State.

Date of hearing: 31st July, 2001.

2003 M L D 1380

[Lahore]

Before M. Naeemullah Khan Sherwani, J

MUNAWAR alias MUNAWARI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4477-B of 2002, decided on 8th October, 2002.

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

----S.497(2)---Penal Code (XLV of 1860), Ss.302/109/34---Bail, grant of---Further inquiry---Name of accused did not figure in F.I.R. and he stood implicated in the case on the basis of statement made by a person who claimed to be eye-witness and said statement was made after about three months of the occurrence---Allegation in the said belated statement was that the accused was armed with .12 bore gun whereas his co­ accused was armed with a .30 bore pistol, but contents of post-mortem report did not reveal any injury on the deceased caused by .12 bore gun---No injury on person of the deceased was attributed to accused and even the accused was not named in the complaint--­Case against accused calling for further inquiry, he was admitted to bail.

Ch. Zahid Iqbal for Petitioner.

Salah-ud-Din Zafar for the State.

Date of hearing: 8th October, 2002.

2003 M L D 1382

[Lahore]

Before Maulvi Anwarul Haq, J

Mian INAM ELAHI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and another---Respondents

Writ Petition No-2261 of 2003, decided on 24th February, 2003.

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

----S.145---Surety bond, furnishing off--Effect---Same would not at- all constitute embargo upon surety to alienate land subject-matter of bond--­Such alienation would be subject to consequences provided in S.145, Cr.P.C.

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

----O.XXXVII, Rr. 2, 3 & S.145---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for recovery of amount through summary procedure---Leave to defend granted subject to furnishing surety bond---Surety after acceptance of his bond by Court exchanged some land with another person---Plaintiff prayed for decreeing suit as condition for grant of leave stood violated---Trial Court imposed cost upon surety and directed him to furnish fresh bond---Validity---Plaintiff had not alleged any fraud or concealment or suppression of facts at the time, when surety bond was presented---Trial Court had accepted surety bond after finding same to be adequate---Furnishing of bond would not at all constitute embargo upon surety to 'alienate such land, but such alienation would be subject to consequences provided in S.145, C. P. C.---Such act of surety could not be made basis for such a harsh action against defendant as prayed by plaintiff---Defendant had pleaded that remaining land was sufficient to fulfil obligation of surety under bond and had also offered to furnish additional security to make up deficiency---High Court dismissed Constitutional petition in limine.

Messrs Industrial Air Control, Pak. (Pvt.) Ltd. v. Messrs Alpha Insurance Company Ltd. 1994 CLC 1526 and Moinuddin Paracha and 5 others v. Sirajuddin Paracha and 22 others 1994 CLC. 247 ref.

Pervaiz Inayat Malik for Petitioner.

Date of hearing: 24th February, 2003.

2003 M L D 1387

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD AKBAR---Petitioner

Versus

MUNAWAR HUSSAIN alias NIKKO and 5 others----Respondents

Criminal Miscellaneous No.66-CB of 2003, decided on 14th April, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)(5)---Penal Code (XLV of 1860), Ss.324/148/149---Bail, cancellation of---Further inquiry---Enmity existed between the parties and role of ineffective firing was attributed to the accused---Question of vicarious liability, of accused was to be gone into at the time of trial--­Case against accused in circumstances required further inquiry into their guilt---Trial Court, in circumstances had not erred in exercise of its jurisdiction in granting bail to accused---Petition for cancellation of bail was dismissed.

Muhammad Javed Hashmi for Petitioner.

2003 M L D 1394

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Parvez Ahmad, JJ

SHAHZAD KHAN---Appellant

Versus

Khawaja M. ASIF and 3 others---Respondents

Election Appeal. No. 197-A of 2002, heard on 12th September, 2002.

Representation of the People Act (LXXXV of 1976)-----

----Ss.14(5) & (5 A)---Representation of the People (Conduct of Elections) Rules, 1977, R.5---Appeal---Appellant sought cancellation of nomination papers of respondent candidate, on the ground that he had availed loans from the Banks and had defaulted in repayment of these loans and different suits were pending and some had been decreed against him---In one suit which was pending in the High Court, it had been ordered by the High Court that till further orders the respondent be not treated as a defaulter while in another suit decree passed in favour of the Bank was against some other party and the respondent was not defendant in that suit---Respondent had disputed his liability and execution of the personal guarantee and the matter being pending in the Court no liability of repayment of loan by respondent had been determined yet---Respondent had though made payment of 25 % of his share out of the decretal amount,, in another suit, but the suit was decreed alongwith the cost of fund and law charges and the respondent was still to make the payment of the outstanding amount---Respondent was directed to make deposit the remaining amount within seven days from the date of the order otherwise his nomination papers would stand cancelled.

Ashtar Ausaf Ali for Appellant.

Umar Masood and Jahanzeb Khan Bharwana for Respondents.

Date of hearing: 12th September, 2002.

2003 M L D 1397

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD ALTAF---Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.226-B of 2003, decided on 25th March, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(2)/11---Bail, grant of---Further inquiry---Accused was merely witness of Nikah between co-accused and alleged abductee and no allegation of Zina was levelled against the accused---Alleged abductee had owned co-accused to be her husband---Case against accused fell under S.497(2), Cr.P.C. calling for further inquiry into his guilt--­Accused was behind the bars and was stated to be previous non ­convict---Accused was admitted to bail.

Ayaz Ahmad Chaudhry for Petitioner.

Javed Iqbal for the State.

Mrs. Humera Tariq for the Complainant.

2003 M L D 1400

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

FAROOQ AHMAD---Petitioner

Versus

Mian SHAHID MAHMOOD----Respondent

Criminal, Original No.686-W of 2000, decided on 27th September, 2001.

Contempt of Court----

---- Contempt proceedings---Notice---Concerned parties---Contempt was always between contemner and the Court.

Mian Mahmood Rashid for Petitioner.

Sardar Ahmed Jamal Sukhera for Respondent.

Date of hearing: 27th September, 2001.

2003 M L D 1401

[Lahore]

Before Bashir A. Mujahid and Mian Muhammad Jehangier, JJ

TAHIR HUSSAIN and others---Appellants

Versus

KHALIQ DAR and others----Respondents

Criminal Appeals Nos.41-T, 433-T of 2002 and Criminal Revision No. 131 of 1999, decided on 24th April, 2002.

(a) Anti-Terrorism Act (XXVII of 1997)-----

----S.25(4)---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---Right of appeal is created by a statute, and cannot be provided by implication or by inference---Under provisions of S.25(4) of Anti-Terrorism Act, 1997 only State could file appeal against acquittal--­Complainant or legal heirs of deceased had no right vt appeal against acquittal under S.25(4) of Anti-Terrorism Act, 1997 as the said Act had been enacted for prevention of terrorism, sectarian violence and for speedy trial of heinous offences---Right of appeal had been provided to complainant under S.417(2-A), Cr.P.C.---Words used "any Court" in 5.417(2-A), Cr.P.C. were only relevant to Courts functioning under Criminal Procedure Code and they would not extend or refer to Special Courts established under. Anti-Terrorism Act, 1997---Provisions of 5.417(2-A); Cr.P.C., conferring right of appeal upon complainant against acquittal could not be pressed into service when S.25(4) of Anti­ Terrorism Act, 1997 had not provided such right of appeal--­Appeal/revision against acquittal, recorded by Anti-Terrorism Court filed by complainant, being incompetent, were dismissed, in circumstances.

Faizur Rehman v. The State and others PLD 2002 Pesh. 6; Qaid-e-Azam v. The State 2000 PCr.LJ 216 and NLR 1998 Criminal 369 and Faiz Muhammad v. Mehrab Shah PLD 1997 Pesh. 116 ref.

(b) Anti-Terrorism Act (XXVII of 1997)-----

----Ss.6, 7 & 8---Compounding of scheduled offence---Cases triable by Courts under Anti-Terrorism Act, 1997 must have nexus with Ss.6, 7 & 8 of the said Act---Anti-Terrorism Act, 1997 being a Special Law, private complainant or legal heirs of deceased had no right to compound `scheduled offences' as said offences were mainly against the State 'and not against individuals---Offences could not be compounded automatically by legal heirs, but it was always through the Court and Court could decline/withhold the permission to compromise the offence ' by legal heirs of the victim.

(c) Anti-Terrorism Act (XXVII of 1997)---

----S. 25(4)---Dismissal of complaint for non-prosecution---Appeal to High Court, competency of---Appeal to High Court against dismissal of complaint for non-prosecution would not be competent---Complainant in such a case could avail alternate remedy by way of filing a fresh private complaint or an application before Trial Court for restoration of his complaint.

Dr. Z. Muhammad Babar Awan for Appellants.

Malik Muhammad Rafique Khan for the Complainant.

Syed Sajjad Shah, A.A.-G. for the State.

Date of hearing: 24th April, 2002.

2003 M L D 1409

[Lahore]

Before Raja Muhammad Sabir and Mian Muhammad Jahangier, JJ

MUHAMMAD NAWAZ and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 1076 and Murder Reference No. 311 of 1998, heard on 28th April, 2003.

Penal Code (XLV of 1860)-----

----Ss.302(b), 315, 316 & 337-F(ii)/34----Appreciation of evidence--­F.I.R. was promptly lodged and time of occurrence was explained by eye-witnesses---Accused persons were named in F.I.R. with allegation that they gave fists and kicks blows to the deceased and specific role was attributed to one of accused persons---Prosecution witnesses who furnished ocular account in detail, faced the test of cross-examination, but said test could not prove that prosecution witnesses were inimical towards accused persons---Statements of prosecution witnesses were quite consistent on all material aspects of the case---Minor discrepancies were bound to occur with passage of time and mere relationship was not sufficient to discard testimony of a witness---Ocular account furnished by two prosecution witnesses found full corroboration from medical evidence and even on question of motive their statements inspired full confidence---Even if it was established that accused persons had not come at the spot prepared to kill the deceased and that assault alleged against them was a fight in routine in which fist and kick blows were used and in facts and circumstances of the case conviction and sentence could not be passed against accused persons under S.302(b), P.P.C; despite that deceased died as a result of injuries sustained by him from the accused persons---Accused who was attributed specific role should have been convicted and sentenced under S.316, P.P.C. while the remaining two accused persons under S.337-F(ii), P.P.C. keeping in view roles played by them---Conviction and sentence awarded to accused persons under S.302(b), P.P.C. by Trial Court was altered to S.316, P.P.C. and accused who was attributed specific role was to pay amount of Diyat as prescribed at relevant time and he was also punished to undergo R.I. for ten years as Ta'zir and other two accused were to pay amount of Daman.

M. Iqbal Bhatti, Muhammad Iqbal and Imam Haider for Appellant.

Nisar Ahmad Dhillon alongwith Ms. Eram Sajjad Gul for the State.

Masood Sadiq Mirza for Respondent.

Date of hearing: 28th April, 2003.

2003 M L D 1417

[Lahore]

Before Ch. Iftikhar Hussain, J

MANZOOR AHMAD and another---Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.700-B of 2003, decided on 10th April, 2003.

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

----S.497(2)---Penal Code (XLV of 1860), Ss.302/304/324/337-A(i)/ 337-F(i)/337-H(ii)/337-L(ii)---Bail, grant of---Further inquiry---Accused had been attributed injury with Sota on non-vital parts of the bodies of the injured prosecution witnesses---One of the co-accused had allegedly fired in the air and had threatened the prosecution witnesses, but no injury to any one had been attributed to the co-accused---Two other co ­accused had been allowed bail and case of accused was identical to that of co-accused and case of co-accused who allegedly had fired in the air, was better than other co-accused---Rule of consistency, would come into play in the case of accused persons---Question of vicarious liability of accused persons for murder of deceased would be gone into at trial---Case of accused requiring further inquiry, they were admitted to bail.

Mailk Muntazir Mahdi for Petitioners.

Muhammad Pervez Qamar Butt for the State.

2003 M L D 1420

[Lahore]

Before Muhammad Akhtar Shabbir and Tanvir Bashir Ansari, JJ

JAMIL AHMED and others---Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.8 and Murder Reference No.2 of 2001, decided on 1st April 2002.

Penal Code (XLV of 1860)---

---Ss. 302/449/34---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(4)---Appreciation of evidence---Sentence, reduction in---Complainant who had reiterated narration as contained in the F.I.R., was supported by eye-witnesses of occurrence---Ocular evidence furnished by an innocent child aged about 9/10 years had fully been corroborated by prosecution witnesses ---Statement of said innocent child who met with lengthy cross-examination and also was examined by police, could not be brushed aside easily as he had himself witnessed one of accused person sitting on chest of deceased and holding her hands and other was administering. medicine to the deceased---Accused were seen running out of house of complainant at relevant time by an independent witness---Ocular statement furnished by child witness had further been corroborated by other prosecution witness and lady doctor who conducted post-mortem examination of deceased---Evidence of prosecution witnesses who had no motive whatsoever for false involvement of the accused, was straightforward and implicitly reliable---Presence as well as participation of accused persons, had fully been proved by prosecution and defence had not been able to shetter prosecution evidence---Accused could not establish their direct enmity with father of deceased as well as with the complainant or any other prosecution witness---No other evidence was on record to substantiate that complainant party was under influence of one with whom accused were involved in civil and criminal litigation---Child witness was examined by the Police during investigation and his statement under S.161, Cr.P.C. was also recorded and plea that statement of said child witness was not recorded under S.161, Cr.P.C., was incorrect--­Contention that a witness who was not nominated in the F.I.R. and his statement was not recorded by police, his evidence could not be taken into consideration and was liable to be excluded, being misconceived, could not be accepted as such contention was belied from record produced by the defence itself-No extenuating circumstances were available which could be urged in favour of accused---Prosecution had successfully proved its case by producing ocular, medical, recovery and circumstantial evidence but as at time of murder of deceased no eye­witness except child witness was available and police had , not made efforts to collect any other evidence, ends of justice would be met if sentence of death awarded to accused was altered to one of life imprisonment- --Death sentence was altered accordingly.

Riaz Masih alias Mithoo v. The State 1995 SCMR 1730 ref.

Malik Sadiq Mahmood Khurram and Sardar Ahmad Khan for Appellants.

Malik Sajjad Feroze and Mirza Nadeem Asif for the Complainant.

Mian Muhammad Bashir, A.A.-G. for the State.

Date of hearing: 1st April, 2002.

2003 M L D 1430

[Lahore]

Before Jawwad S. Khawaja and Abdul Shakoor Paracha, JJ

JANE MARGRAT WILLIAM---Appellant

Versus

ABDUL HAMID MIAN----Respondent

Regular First Appeal No.2 of 1989; Civil Miscellaneous Nos. 1 to 3 of 1999, heard on 7th May, 2002.

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

----S.42---Civil Procedure Code (V of 1908), S.96---West Pakistan Civil Courts Ordinance (II of 1962), S.18(1)(a)---High Court (Lahore) Rules and Orders. Vol. V, Chap. 3-B, R.4---Constitution of Pakistan (1973), Art. 185(3)---Suit for declaration---Grant of relief of possession at appellate stage---Single Bench of High Court dismissed defendant's first appeal, but in order to do complete justice and save parties from further litigation allowed plaintiff the relief of possession consequential to declaration that he was owner of the suit property---Validity---Addition of relief of, possession had resulted in increase of valuation of appeal, thus, appeal could have been heard only by a Bench of two Judges of High Court as per R. 4, Chap. 3-B, Vo1.V of High Court (Lahore) Rules and Orders.

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

----Ss.8 & 42---Suit for declaration and possession---Plaintiff (husband) claimed to be real owner of suit property as he had purchased land and raised construction thereon with his own sources and borrowed money, while interest of defendant (wife) therein was merely benami---Trial Court decreed the suit---Validity---Defendant had not appeared as witness to support her stance that such funds belonged to her---Defendant had not disputed amount spent by plaintiff on acquisition/construction of house and shops---Amount remitted by defendant's mother to account was claimed by defendant nor her mother plaintiff---If such amount mother, such circumstance would not establish that such amount was sent to defendant by way of gift---Such amount at the most could be treated as loan to be repaid by plaintiff to defendant's mother, who had not claimed the same from him---Defendant could not lay claim to such amount as a gift from her mother---Money borrowed by plaintiff for acquisition/construction of suit properties would be treated as sourced monies and funded by him---Documents placed on record by defendant showed that neither plaintiff had ever requested for a loan nor he had executed any receipt acknowledging amount remitted from account of defendant's mother by way of loan---Amount remitted to plaintiff's account was not a loan, but was belonging to him as neither defendant nor her mother had controverted his testimony---If defendant's father had any estate, then she would have produced probate or letters of administration, if any, from a competent Court to establish that she or her mother had inherited such amount remitted to plaintiff's account--­Testimony of witnesses of both parties as to competing claims of ownership of disputed properties was self-serving and unreliable--­Documentary evidence, which dated before current dispute, made clear that both husband and wife were equal joint owners of disputed property, though plaintiff alone had provided funds for its acquisition/ construction---Such course of conduct was entirely natural and not at all unusual in a functioning marriage---Savings and property of both parties were common family property and had been treated as such by them--­High Court decreed suit in above terms.

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

----O.VI, R.17---Omnibus changes introduced in original written statement without leave of Court while filing amended written statement in reply to amended plaint, wherein plaintiff included only relief of possession pursuant to judgment of Supreme Court ---Validity--­Defendant was obliged to confine amendments in written statement to corresponding amendments made in amended plaint---Defendant could not introduce omnibus changes in original written statement without leave of the Court---If defendant had any need for making changes in original written statement (other than those necessitated on account of amended plaint), she ought to have applied to the Court under O. VI, R. 17, C.P.C. setting out justification for such changes---Such changes could only have been made with permission of Court---Such permission could be possible only after allowing plaintiff an opportunity to oppose amendments applied for---Defendant had not given/shown reason to justify departure from contents of original written statement--­Contents of original written statement, held, would be taken as defendant's pleadings and not contents of amended written statement, particularly when defendant had not chosen to testify same in court.

(d) Benami transaction----

---- Source of money---Money borrowed by plaintiff (claiming to be real owner) for acquisition/construction of suit property would be treated as money sourced and funded by him.

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

----S.2(12) & O.XX, R.12---Specific Relief Act (I of 1877), Ss.8 & 42--­Suit for declaration and possession---Grant of mesne profits to co-sharer for wrongly excluding him from and denying benefit of his right in joint property---Both parties equal joint owners of suit property---Defendant was in possession of property for last 32 years to the total exclusion of plaintiff, though previously they were enjoying joint possession thereof---Plaintiff was equally entitled to possession of suit property, who had been wrongly excluded from the same and denied benefits of his rights therein---High Court in order to redress wrong done to plaintiff passed preliminary decree for mesne profits in his favour for period starting from date of filing of his suit until such time he was put in possession with direction to Trial Court to conduct enquiry to determine quantum of mesne profits, whereafter final decree would be passed for amount so determined.

Muhammad Yaqoob Sindhu for Appellant.

S.M. Barjis Nagi for Respondent.

Dates of hearing: 11th, 15th 17th, 18th, 22nd, 23rd, 25th April; 6th and 7th May, 2002.

2003 M L D 1450

[Lahore]

Before Khawaja Muhammad Sharif, J

SIKANDR HAYAT --- Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 137-J of 2002, heard on 6th May, 2003.

(a) Penal Code (XLV of 1860)-----

----S.302(b)---Appreciation of evidence---Three deceased persons had received injuries with sharp-edged weapon---Was not possible for an accused to commit murder of three persons alone because it was natural that first deceased after receipt of injuries with Chhurri would raise hue and cry and on his hue and cry other deceased who were sleeping, would wake-up ---Story of prosecution that accused .all alone had committed murder of three persons, seemed to be unnatural and unconvincing--­Accused according to prosecution witnesses, had made extra judicial confession before them, three months after occurrence in which accused had stated that before killing deceased persons, he had given them intoxicant so that they could not resist---No poison was detected as a result of post-mortem examination conducted on dead bodies of three deceased---Non-detection of any poison from the dead bodies of deceased, had demolished the case of the prosecution---One of prosecution witnesses was related to one of the deceased persons---Both witnesses of extra judicial confession did not apprehend accused at the time of making confession before them when accused was also empty­ handed---Both said witnesses neither informed the police nor complainant on the same day, but they appeared before Police on the next day--­Evidence of extra-judicial confession, however, was always considered to be a weak type of evidence ---Chhurri. allegedly recovered on pointation of accused was not stained with human blood according to report of Serologist ---Abscondence of accused was also not proved on record---Mere abscondence of accused was no ground to award or maintain conviction of accused---Dents were found in prosecution story, benefit of which had to be extended to accused not as an act of grace, but as a matter of right---Extending said benefit, conviction and sentence recorded against accused by Trial Court, were set aside and he was acquitted of the charge.

(b) Criminal trial---

---- Extra-judicial confession was always considered to be a weak type of evidence.

1998 SCMR 198 ref.

(c) Criminal trial---

---- Abscondence---Mere abscondence was no ground to award or maintain conviction of accused.

Ashfaq Ahmed Chaudhry for Appellant.

Saleem Shad for the State.

Malik Suleman Awan for the Complainant.

Date of hearing: 6th May, 2003.

2003 M L D 1458

[Lahore]

Before Ch. Iftikhar Hussain, J

MUSHTAQ AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.409-B of 2003, decided on 8th April, 2003.

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

----S.497(2)---Penal Code (XLV of 1860), Ss.324/337-F(ii)(iii)/34--­Bail, grant of---Further inquiry---Solitary fire-arm injury on non-vital part of body of injured was ascribed to accused and accused had not repeated fire---Question that whether S.324, P.P.C. could be attributed against accused, needed serious consideration and same would be gone into at the time of trial---Case of accused, in circumstances was covered under subsection (2) of S.497, Cr.P.C. requiring further inquiry into the guilt of accused---Accused was behind the bars and stated to be non­ convict---Case for enlargement of accused on bail having been made out, he was admitted to bail.

Saleem Khan v. The State 1999 PCr.LJ 140; Riaz v. Malik Dad and another 2001 PCr:LJ 1483 and Munir Ahmad and another v. The State 1997 SCMR 445 ref:

Abdul Aziz Khan Niazi for Petitioner.

Ch: Ghulam Muhammad for the State.

Ch. Faqir Muhammad for the Complainant.

2003 M L D 1460

[Lahore]

Before M. Javed Buttar, J

MAJEED---Appellant

Versus

PROVINCE OF PUNJAB through Collector, District Gujrat and another---Respondents

Regular Second Appeal No.3 of 1996, heard on 1st April, 2003.

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

----S.100---Second appeal---Concurrent findings of facts---Courts below had recorded concurrent findings of facts on the basis of evidence produced by the parties---Appellant had failed to point out any illegality in the conclusions drawn by the Courts below on the facts found, which stood established from the evidence produced before the Trial Court--­Evidence produced by the parties had been thoroughly discussed--­Appellant had failed to point out any illegality in the judgments and decrees passed by Courts below---Neither any misreading nor any non­ reading of evidence, nor irregularity appeared on the record---High Court did not interfere with the concurrent findings of facts and dismissed the appeal with costs.

C.M. Lateef Rawan for Appellant.

Najeeb Faisal Chaudhry, Addl. A.-G. for Respondent No. 1.

Hafiz Khalil Ahmed for Respondent No.2.

Date of hearing: 1st April, 2003.

2003 M L D 1469

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

MUHAMMAD NAWAZ and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.748, 110-J of 2002 and Murder Reference No.32-T of 2002, heard on 28th April, 2003.

Penal Code (XLV of 1860)---

----Ss.302/411/34---Appreciation of evidence ---F.I.R. in the case was lodged on 12-12-1999 and post-mortem on dead body of deceased was conducted on 13-12-1999---Accused, according to prosecution witness, had made extra-judicial confession before him on 6th or 7th May, 2000 wherein accused had admitted that he alongwith his co-accused had committed murder of deceased 10/ 15 days prior to making of confession---If statement of said prosecution witness was believed then deceased was murdered on 25th or 26th April, 2000 while matter with regard to death of deceased had already been reported to police on 12-12-1999 and post-mortem of deceased was conducted on 13-12-1999 which was about more than four months prior to making of extra-judicial confession---Story of prosecution, in circumstances, was totally false--­No need existed on the part of accused to have made confession before prosecution witness because he was neither related to the complainant nor he was person in authority---Recovery of purse, identity card of deceased, ring belonging to the deceased and recovery of revolver on pointation of the accused did not connect the accused with commission of offence, in circumstances, case being of circumstantial evidence, chain of events should be linked in such a manner that it could lead Court to only one conclusion that it was the person charged who had committed offence, but that important fact was missing in the case---Prosecution had not been able to prove its case against accused persons beyond any shadow of doubt while defence had been able to create dents in prosecution story---Extending benefits of said dents in prosecution story, conviction and sentence recorded against accused by Trial Court, were set aside and they were acquitted of charge against them.

PLD 1972 SC 363 ref.

Aazam Nazir Tarar with Syed Zahid Hussain Bukhari for Appellants.

Sohail Dar, A.A.-G. for the State.

Muhammad Masud Chishti for the Complainant.

Date of hearing: 28th April, 2003.

2003 M L D 1475

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

FARHAD ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1797-B of 2003, decided on 27th May, 2003.

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

---S.497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51(1)---Bail, grant of---Raiding Police party had apprehended the accused and had recovered 110 Kilograms of "Post/Bhiki" from his possession which was a narcotic substance within the meaning of Control of Narcotic Substances Act, 1997---Report of Chemical Examiner-was positive in, respect of sample of substance allegedly recovered from possession of accused---Accused was resident of a Tribal Area and apparently nothing Was available on record to explain his presence in District Gujranwala at the relevant time---Accused could not point out any background of ill-will or bitterness between him and local police so as to prompt police to falsely implicate him in the case of such nature--police had already submitted a challan against accused before Court of competent jurisdiction---Offence under S.9(c) of Control of Narcotic Substances Act, 1997 entailing a maximum sentence of death, provisions if S.51(1) of Control of Narcotic Substances Act, 1997 had placed an embargo upon grant of bail in such cases---No special circumstances had teen pointed out by accused so as to depart from said legal requirement---Prima facie reasonable grounds existed to believe the involvement of accused in alleged offences---Bail application was dismissed.

Irfan Gut Rajuwala for Petitioner.

M. Bilal Khan, Addl. A.-G. with Muhammad Hanif Saleemi for the State.

Riaz Ali Khan, Deputy Director (Demand), Anti-Narcotic Force.

2003 M L D 1480

[Lahore]

Before Khawaja Muhammad Sharif, J

FAIZ AHMED and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 653 of 2000, heard on 11th April, 2003.

Penal Code (XLV of 1860)---

----Ss.302(b)/324/34---Appreciation of evidence---Eight accused persons were named in the F.I.R. and one of accused who according to F.I.R. had caused death of the deceased was proclaimed offender and three of accused persons had been acquitted by Trial. Court and appeal against their acquittal was dismissed for non-prosecution---Accused had caused an injury on person of prosecution witness with his 7 MM Rifle by choosing most vital part of his body---Presence of said accused at the spot was proved---Star witness of prosecution who was injured in the occurrence, had fully supported the case of prosecution and his ocular testimony having been fully corroborated by medical evidence, no room was left for any doubt as to guilt of the accused---Appeal of said accused was dismissed and his conviction and sentence was maintained by the High Court---Case against remaining co-accused was that they being present at the spot fired in the air---Role ascribed to said co-accused was that of aerial firing, but they did not cause any injury either to deceased or injured prosecution witness---In absence of any recovery from the spot, recovery of fire-arms at instance of said co-accused would not advance case of prosecution any further---Said co-accused were granted benefit of doubt and conviction and sentence recorded against them by trial Court, were set aside and were ordered to be released.

(b) Criminal trial---

---- Prosecution had to build its own case and not to take benefit of any weakness of defence---Court had to decide case on basis of evidence brought on record.

Inayatullah Cheema, Arif Sandhu, Maqbool Alam Meer and Muhammad Yaqoob Chatha for Appellants.

Miss Tasneem Amir for the State.

Date of hearing: 11th April, 2003.

2003 M L D 1485

[Lahore]

Before Abdul Shakoor Paracha, J.

Mian MUHAMMAD ANWAR KHURSHID---Petitioner

Versus

MUHAMMAD YASIN and another---Respondents

Civil Revision No.2711-D of 1996, heard on 24th March, 2003.

(a) Malicious prosecution---

----Proof---Onus was on the plaintiff to prove that proceedings against him were malicious and without probable or reasonable cause---Plaintiff was bound to prove that he was prosecuted by the defendant, proceedings against him terminated in his favour, prosecution was instituted against him without any reasonable or probable cause and foundation of action taken against him by recovery officer was motivated by malice.

Balbhaddar Singh and another v. Badri Shah and another AIR 1926 PC 46 and Shakil Ahmad v. Ashfaq Ahmad 1993 CLC 1669 ref.

(b) Malicious prosecution---

---- Foundation of the action of malicious prosecution is malice, which may be shown at any time in the Court of inquiry.

Gaya Parasad v. Bhagat Singh ILR 30 All. 525 ref.

(c) Punjab Local Government Ordinance (VI of 1979)---

----S.179---Qanun-e-Shahadat (10 of 1984), Art.118---Protection of S.179 of the Punjab Local Government Ordinance for acts done by the petitioner being the Mayor, First Appellate Court refused to grant such protection on the ground that petitioner did not appear in Court to prove the bona fides of his action---Validity---Onus of proving the element of malice being on the plaintiff and he was not able to discharge the basic onus, protection of action taken in good faith under S. 179, Punjab Local Government Ordinance, 1979 was available to the petitioner.

(d) Limitation Act (IX of 1908)---

----S.22 & Art.19---Civil Procedure Code (V of 1908), O.I, R.10(5)--­Suit for damages was filed, on 18-6-1992 on the ground of unlawful detention by Tehsildar on 27-4-1992, Mayor was impleaded as defendant by filing the amended plaint on 26-3-1994---Period of one year was available to sue the petitioner under Art. 19 of the Limitation Act, 1908---Suit should be considered to have been instituted on the day when the amended plaint was filed as when a person was added as party on an application made for the purpose the addition was to be deemed to take effect from the date of presentation of the application---Suit thus became time-barred under S.22 of the Limitation Act, 1908.

Hayat and others v. Amir PLD 1982 SC 167 ref.

(e) Limitation Act (IX of 1908)-----

-----S.22---Objection regarding limitation, turned down by Civil Court and First Appellate Court on the ground that the same was not taken in the written statement---Validity--Trial Court and Court of appeal had illegally rejected the objection regarding limitation.

(f) Limitation---

----Question of limitation being always a mixed question of law and fact, it was the duty of Court to determine the issue of limitation.

Haji Muhammad Shah v. Sher Khan and others PLD 1994 SC 294 ref.

Ch. Khurshid Ahmad for Petitioner.

Akhtar Masood Khan for Respondents.

Date of hearing: 24th March, 2003.

2003 M L D 1494

[Lahore]

Before Ch. Iftikhar Hussain, J

KHUDA BAKHSH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.380-B of 2003, decided on 8th April, 2003.

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

----S.497---Penal Code (XLV of 1860), Ss.334/336/148/149/109---Bail grant of---Accused allegedly had cut left ear of complainant with Churra and Doctor had mentioned said injury in his Medico Legal Report and same was declared as 'Itlaf-i-Udw'---Offence against accused which attracted' Ss.334/336/148/149/109, P.P.C., was covered under prohibitory clause of S.497(1), Cr.P.C.---Challan had been submitted in the Court and formal charge had been framed against accused-- -Sessions Judge had issued direction to Trial Court for conclusion of trial within two months- --Accused was not entitled to concession of bail at that stage.

M.R. Fakhar Baloch for Petitioner.

Ch. Ghulam Muhammad for the State.

Ch. Riaz Ahmad for the Complainant.

2003 M L D 1496

[Lahore]

Before Parvez Ahmad, J

MUHAMMAD IQBAL---Petitioner

Versus

MUHAMMAD ANWAR and another---Respondents

Civil Revision No. 1278 of 2002, heard on 27th February, 2003.

(a) Registration Act (XVI of 1908)---

----S.50---Sale through registered sale-deed---Registration itself was a notice to the general public---Registered document takes precedence over an unregistered document and over any other sale.

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

----Ss.12 & 42---Suit for declaration on the grounds that plaintiff had purchased the property through an oral sale and in consequence of the said agreement to sell he was put into possession of the property and afterwards vendor had transferred the same property in favour of another person through a registered sale-deed---Plaintiff had admitted that the vendor had agreed to execute a registered sale-deed in his favour but continued to prolong the same on different pretexts---Plaintiff had also avoided to make the payment of requisite court-fee---Effect---Only form of suit which could be filed in circumstances, was the suit for specific performance or in the alternative return of the amount received by the vendor in the garb of the declaratory suit.

Rao Abdul Jabbar for Petitioner.

Mukhtar Abbas for Respondents.

Date of hearing: 27th February, 2003.

2003 M L D 1502

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD QASIM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.582-B of 2003, decided on 14th April, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16---Bail, grant of---Further inquiry---Allegation against accused was that he enticed away wife of complainant and thereafter, had indulged in Zina with her---Accused had attached with his application for grant of bail, copy of suit for dissolution of marriage brought by alleged victim (co-accused) against complainant and in the same she had averred that complainant had kicked her out of his house about a year prior to registration of criminal case against accused---Suit filed by co-accused (alleged victim) against complainant was decreed by Judge Family Court and said co-accused was admitted to bail---Said facts had rendered the case against accused as one of further inquiry within the ambit of subsection (2) of S.497, Cr.P.C.---Accused who was behind the bars for the last about four months, was stated to be previous non-convict--­Accused was admitted to bail, in circumstances.

Kiramat Ullah v. The State 1992 PCr.LJ 392 and Kiramat Ullah v. The State 1992 PCr.LJ 399 ref.

Abdul Qudoos Tareen for Petitioner.

Ch. Ghulam Muhammad for the State.

2003 M L D 1504

[Lahore]

Before M. Naeemullah Khan Sherwani, J

ABDUL NADEEM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.405-B of 2003, heard on 25th April 2003.

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

----S.497---Penal Code (XLV of 1860), Ss.302/109/148/149---Bail, grant of---High Court had disposed of bail application with direction to Trial Court to conclude dial of accused within six months, but trial having not been concluded in accordance with direction of High Court, accused filed bail application before Trial Court---Trial Court dismissed the bail application with observation that bail could not be granted on basis of statutory ground because said relevant provision of law had been deleted from the statute---Trial Court was not aware of fact that the bail was being sought by accused on ground that specific direction issued by High Court had been violated, giving rise to a fresh ground in favour of accused---Whenever a specific direction was issued by a superior Court; it must be acted upon or some efforts towards achieving that object must appear to have been made, but in the present case Trial Court did not adopt coercive measures at all for faithful compliance of said direction which had constituted a sufficient ground for enlargement of accused on bail---Charge was framed and statement of only one prosecution witness had been recorded in the case---Trial was likely to , consume a pretty long time and accused could not be kept indefinitely in jail on the whim or caprice of prosecution---Accused was admitted to bail.

Shouki alias Shoukat and another v. The State and another 1984 SCMR 613 and Muhammad Sadiq and 2 others v. State 1996 PCr.LJ 1440 ref.

(b) Administration of justice-----

----Criminal trial---High Court, issued direction to conclude trial of accused within six months, but Trial Court had not concluded trial accordingly---Whenever; a specific direction was issued by a superior Court, it must be acted upon or some efforts towards achieving that object must appear to have been made---Criminal law was ideally specific in nature, uniform in application, dispassionate in enforcing and reflective of informal social norms---By means of criminal law, social control could be achieved over behaviour of members of society---Such powers would allow or prohibit behaviour for particular individuals in specific situation---Trial Court, was by all means competent to deploy the whole power vested in it under specific provisions of law.

Ch. Zahoor Hussain for Petitioner.

M.D. Shahzad for the State.

2003 M L D 1510

[Lahore]

Before Ch. Ijaz Ahmad and Abdul Shakoor Paracha, JJ

PROVINCE OF PUNJAB through Secretary to Government of the Punjab, Irrigation and Power Department, Lahore and another---Appellants

Versus

Ch. FAZAL ELAHI---Respondent

Regular First Appeal No.517 of 2000, heard on 28th April, 2003.

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

----O.V, Rr.16 & 18 & O.XXVII, Rr.1 to 4---Service of summons upon Government Department/appellants---Summons issued to the appellants/Government Department revealed that summons were not served upon the appellants, same were received by the official of the appellants and name of the official who had received the summons was not mentioned in the report of process-server---Trial Court also did not make any effort to get the service of the appellants effected under O.XXVII, Rr. 1 to 4, C.P.C.---Effect, service of the appellants was not properly effected and being in violation of mandatory provisions of O.XXVII, C.P.C., ex parte order was without lawful authority.

Shah Alam's case 1989 CLC 1542 and Chaudhry Parvez Ahmad's case 1993 CLC 660 rel.

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

----O.XXVII (2)--Government Department proceeded ex parte by Trial Court---Order sheet of Trial Court did not contain the name of the representative of the appellants (Government Department) who appeared before Trial Court---Trial Court did not issue notice to the appellants for their appearance---Record of the Trial Court did not contain authorization letter of the representative of the appellants to appear before the Court---Ex parte order against appellants was in violation of mandatory provisions of O.XXVII(2), C.P.C., in circumstances.

Crescent Sugar Mill's case PLD 1982 Lah. 1 and Yousaf Ali's case PLD 1958 (Pak.) SC 104 rel.

M. Riaz Lone for Appellants.

Riaz Karim Qureshi for Respondent.

Date of hearing: 28th April, 2003.

2003 M L D 1514

[Lahore]

Before Ch. Iftikhar Hussain, J

SAJJAD AHMAD alias KAURA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.100-B and 489-B of 2003, decided on 4th March, 2003.

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 inquiry---Allegation against accused was that he along with his co-accused had abducted daughter of complainant for Zina---Accused had claimed valid marriage between him and the alleged abductee---Admitted position on record was that the alleged abductee had brought suit for jactitation of marriage against accused while accused had brought suit for conjugal rights against her and the suits were pending adjudication before competent Family Court ---Co-accused was found innocent in investigation and his name had been placed in Column No.2 of challan report---Case against accused, in circumstances had become one of further inquiry covered under subsection (2) of S.497, Cr.P.C.---Accused who were behind the bars, 'were previous non-convicts---Accused were admitted to bail.

Muhammad Ramzan Khalid Joiya for Petitioner.

Sh. Arshad Ali for the State.

Liaqat Ali Kharal for the Complainant

2003 M L D 1520

[Lahore]

Before Ch. Iftikhar Hussain, J

PIRAN DITTA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.549-B of 2003, decided on 15th April, 2003.

Criminal Procedure Code (V of 1898)---

---S.497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of--­Further inquiry---Allegation against accused was that he had exhorted his brother/co-accused to fire at deceased who fired accordingly and consequently deceased died at the spot---Except raising Lalkara, no other role had been ascribed to the accused---Question of accused's sharing common intention with his co-accused in the murder of deceased was to be gone into at time of trial---Case of accused, in circumstances, was covered under subsection (2) of S.497, Cr.P.C. requiring, further inquiry into his guilt---Accused was behind the bars and was stated to be previous non-convict---Accused was entitled to bail in circumstances.

Ghulam Murtaza Malik for Petitioner.

Haji Javaid Iqbal for the State.

2003 M L D 1521

[Lahore]

Before Ch. Ijaz Ahmad, J

MUSLIM INSURANCE CO. LTD. Through Chief Executive---Petitioner

Versus

ZAMINDARA PAPER AND BOARD MILLS LIMITED through Chief Executive and another---Respondents

Civil Revision No.384 of 2003, decided on 21st March, 2003.

(a) Administration of justice-----

--- -Law favours adjudication of disputes on merits after giving parties full opportunity to prove their case---Technical knock out is an exception and not a rule---All proceedings are meant for advancement of cause of justice, and not for use and purpose of entrapping litigant into a blind corner.

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

----O.XVI, R.1---Permitting a.party to file list of within 7. days of framing of issues—Relevant consideration—Party’s evidence should not be shut out for its such failure where reasonable explanation therefore was given no prejudice was caused to opposite party in his defence and court was not unduly inconvenienced.

Australasia Bank Ltd. v. Messrs Mangora Textile Industries Swat and others 1981 SCMR 150 fol.

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

----O.XVI, R.1---Witness not included in list of witnesses---Court should be liberal in permitting a party to call such witness.

Bashir Ahmad v. Fazal Din 1994 CLC 1920 fol.

Siddique Ahmad Chaudhry for Petitioner.

2003 M L D 1524

[Lahore]

Before Ch. Iftikhar Hussain, J

SHOUKAT HUSSAIN ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 173-B of 2003, decided on 27th March, 2003.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), Ss.302/109/34---Bail, grant of---Further inquiry---Mere role of holding deceased in his 'Japha' (grip) was attributed to the accused---Accused had been found innocent during investigation as no solid evidence was collected against him by police and his name was placed in Column No.2 of the challan report---All such facts had essentially rendered case of accused of further inquiry into his guilt which was covered under subsection (2) of S.497, Cr.P.C.---Accused was behind the bars and was stated to be previous non-convict and his trial had not commenced---Accused was admitted to bail, in circumstances.

Ali Shah v. The State 2002 PCr.LJ 707 and Mehmood Akhtar and another v. Haji Nazir Ahmad and 4 others 1995 SCMR 310 ref.

Ch. Mehmood Akbar Ghumman and Ayaz Ahmad Choudhary for Petitioner.

Javed Iqbal for the State.

A.D. Kamran for the Complainant.

2003 M L D 1528

[Lahore]

Before Ch. Iftikhar Hussain, J

SHABBIR and 3 others--- Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.652-B of 2003, decided on 9th April, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.379/411---Bail, grant of- Recovery had taken place---Accused were behind the bars and were previous non-convict- --Alleged offence did not fall within prohibitory clause of S.497(1), Cr.P.C.---Accused were admitted to bail, in circumstances.

Tahir Mahmood for Petitioners.

Abdul Hameed Khokhar for the State.

2003 M L D 1530

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ILYAS---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1411-B of 2003, decided on 7th May, 2003.

Criminal Procedure Code (V or 1898)---

---S. 497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of--­Further inquiry---Except the evidence of last seen, no other evidence was on record---Wrong statement had beets made by State Counsel earlier that six prosecution witnesses had been examined, whereas not a single prosecution witness had been examined so far---Case of accused, in circumstances, fell within the ambit of subsection (2) of S.497, Cr.P.C. which required further inquiry into the guilt of accused---Accused was admitted to bail, in circumstances.

Muhammad Asim Cheema for Petitioner.

Raja Sher Zaman for the State.

2003 M L D 1531

[Lahore]

Before Abdul Shakoor Paracha, J

Mst. NUSRAT ZOHRA---Petitioner

Versus

Mst. AZRA BIBI and 2 others---Respondents

Civil Revision No. 1094 of 1995, heard on 18th March, 2003.

(a) Islamic Law-----

----Gift---Essential ingredients of valid gift: are declaration of gift; acceptance of gift; and handing over possession of subject-matter of gift by donor to donee.

(b) Islamic Law------

----Gift by father (donor) in favour of daughters from second wife (defendants) depriving daughters from first wife (plaintiff)---Plaintiff's plea was that there was an oral gift in favour of all daughters including herself; and that gift mutation in favour of defendants was void and illegal---Trial Court decreed suit, but Appellate Court set aside same--­Validity---Onus to prove verbal gift was on plaintiff, who in cross­-examination had admitted not to be in possession of land, but same was in possession of defendants---Plaintiff had not produced Revenue Record in support of her plea---Onus to prove valid gift mutation in their favour was on defendants, who had produced Patwari in whose presence donor had got recorded his statement before Revenue Officer making gift only in favour of defendants ---Lambardar of village as witness had testified about attestation of gift mutation by donor with his free consent and delivery of possession to defendants---Donor himself as witness had confirmed gift in favour of defendants through mutation and had categorically stated before Court that he had not given share in land to plaintiff---Plaintiff could not claim any right of oral gift or she had any right to claim land in lifetime of donor, who had validly transferred same by way of gift through mutation in favour of defendants---Trial Court had misread evidence and misinterpreted law---Appellate Court had not committed any illegality or irregularity in dismissing suit of plaintiff---High Court dismissed revision petition ---Qanun-e-Shahadat, (10 of 1984), Art. 117 & 122.

PLD 1994 SC 650 and Amir v. Bakhshu and others PLD 1975 fol.

(c) Islamic Law--

----Gift---Legal heir could not challenge gift made by ancestor during his lifetime.

Amir v. Bakhshu and others PLD 1975 SC 625 fol.

Shaukat Ali Mehr and Chaudhary Ahmad Khan Gondal for Petitioner.

Muhammad Zaman Mangat and Amjad Hussain Shah for Respondents Nos.1 to 3.

Date of hearing: 18th March, 2003.

2003 M L D 1541

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD RAFIQUE---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.324-B of 2003, decided on 9th April, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.337-A(iii)/337-A(i)/337-L (ii)/148/149---Bail, grant of---Further inquiry---Injury though was ascribed to accused on nose of injured and same subsequently was declared fracture of his nasal bone, but evidence on record had shown that there existed .enmity between complainant and accused side--­Possibility of false implication of accused in the case could not be ruled out---Case against accused required further inquiry into his guilt--­Accused was behind the bars for the last about four months and he was stated to be a previous non-convict---Case for enlargement of bail of accused having been made out, he was admitted to bail.

Peer Zafar Hussain Shah for Petitioner.

Kanwar Riaz Ahmad Khan for the State.

2003 M L D 1543

[Lahore]

Before Ch. Ijaz Ahmad, J

LAHORE DEVELOPMENT AUTHORITY through Director-General, LDA, LAHORE---Petitioner

Versus

Mst. SHAMIM AKHTAR and another- --Respondents

Writ Petition No. 10594 of 2002, heard on 5th May, 2003

(a) Constitution of Pakistan (1973)----

----Art.199---Constitutional petition---Concealment of material facts in petition---Effect---Constitutional remedy was a discretionary in character---High Court would decline to exercise discretion in favour of petitioner, who had not approached Court with clean hands.

Abdur Rasheed's case 1969 SCMR 141; Ghulam Mustafa's case 1983 SCMR 196 and Rana Muhammad Arshad's case 1993 SCMR 1462 rel.

Ihsan Ali and others. PLD 1969 SC 167; Javed Sheikh's case 1985 SCMR 153; Amir Khan and others 2002 SCMR 403; Bahadar Khan's case 2000 SCMR 677; Zulfiqar Ali's case 1998 SCMR 107, Muhammad Ramzan's case 1997 SCMR 1635; Sheikh Zaman's case 2000 SCMR 1316 and N.D.F.C., Karachi's case PLD 2002 SC 500 ref.

(b) Words and phrases-----

----"Merits"---Definition---Word "merits" as a legal term refers to strict legal rights of parties---Merits include limitation prescribed under law.

Black's Law Dictionary ref.

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

----S.12(2)---Limitation Act (IX of 1908), Art. 181---Application under S.12(2), C.P.C.---Limitation for filing such application is three years.

Mst. Kubra Begum's case 1993 SCMR 2096 fol.

Rehan Bashir for Petitioner.

Ch. Nasrullah Warraich for Respondent No. 1

Date of hearing: 5th May, 2003.

2003 M L D 1549

[Lahore]

Before M.A. Shahid Siddiqui, J

ZAHID PERVAIZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.988-B of 2003, decided on 14th May, 2003.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Only part played by accused was that he went to the house of complainant and delivered the message of main accused to the deceased---Said attain accused and his other co-accused took out pistols immediately after altercation which took place between the main accused and deceased--­Accused was empty-handed and nothing was on record to show that he delivered message of main accused to deceased as a result of conspiracy---Mere fact that accused remained fugitive from law and was declared a proclaimed offender, was not sufficient to disentitle him to concession of bail---Accused was enlarged on bail, in circumstances.

Mahar Tahir Amjad for Petitioner.

Sheikh Muhammad Rahim for the Complainant.

Date of hearing: 14th May, 2003.

2003 M L D 1557

[Lahore]

Before Ijaz Ahmad Chaudhry, J

IRFAN MAQBOOL---Petitioner

Versus

STATION HOUSE OFFICER, P.S. DAULAT GATE, MULTAN and another---Respondents

Writ Petition No.7620 of 2000, decided on 7th January, 2003.

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

----Ss.10/11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of proceedings---Alleged abductee filed a suit for jactitation of marriage against her husband which was dismissed by the Family Court, but was decreed in appeal---Decree had attained finality as Constitutional petition filed against the same was dismissed by High Court---Alleged abductee being sui juris was entitled to contract marriage with her free-will and consent and if she had exercised said right by marrying with accused, no offence had been committed by the accused---Constitutional petition filed by accused for quashing of proceeding having remained pending for a long time, sending accused again to Trial Court for filing application under S.265-K, Cr.P.C., would not be in the interest of justice and case was fit where High Court could exercise powers under Art. 199 of Constitution of Pakistan (1973) for quashing of proceedings proved to be abuse of process of law---Proceedings were ordered to be quashed, in circumstances.

Azam's case PLD 1984 SC 95 and 2000 SCMR 122 ref.

Muhammad Arif Alvi for Petitioner.

Syed Altaf Hussain Bokhari, Law Officer for Respondents

Date of hearing: 7th January, 2003.

2003 M L D 1559

[Lahore]

Before Parvez Ahmad, J

GHULAM RAZA---Petitioner

Versus

GHULAM ASGHAR---Respondent

Civil Revision No. 1065 of 2002, heard on 1st November, 2002.

Punjab Pre-emption Act (IX of 1991)---

----Ss.6 & 13---Civil Procedure Code (V of 1908), O.XVII, R.3---Suit for pre-emption---Closing of evidence of plaintiff---Trial Court proceeded to close evidence of the plaintiff and resultantly dismissed the suit and appeal against judgment and decree of Trial Court, was also dismissed by Appellate Court---Record revealed that on certain dates of hearing, evidence of plaintiff was available, but could not be recorded due to non-appearance of counsel for the defendant---Evidence available on certain dates of hearing could not be recorded due to no fault of the plaintiff---Validity---Law favoured decision on merits and not on technicalities---High Court, set aside concurrent judgments and decrees of both the Courts and remanded case with direction to decide the same afresh after providing one and final opportunity to plaintiff for production of his evidence.

Munir Ahmad Khan for Petitioner.

Khalid Ikram Khattana for Respondent.

Date of hearing: 1st November, 2002.

2003 M L D 1561

[Lahore]

Before Ali Nawaz Chowhan, J

WAHEED AZIZ---Petitioner

Versus

Sheikh NASIM-UD-DIN and 4 others---Respondents

Writ Petition No.3002 of 2003, decided on 25th March, 2003.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13(6)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Order passed by Rent Controller under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959---Validity---Tenant accepted offer made by respondent (one of the landlords) not to deposit his share of rent for specified period on furnishing surety bond by tenant before Rent Controller for payment of such amount, until determination of question, whether tenancy went in abeyance on account of partnership between such respondent and tenant---High Court disposed of Constitutional petition with direction to Rent Controller to decide the case with convenient despatch preferably within four months.

Haji Dildar Khan for Petitioner.

Saleem Anwar Khan for Respondent No. 1

2003 M L D 1563

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

SANAULLAH and another---Appellants

Versus

THE STATE -Respondent

Criminal Appeal No.40-J of 2002, heard on 7th February, 2003.

Penal Code (XLV of 1860)---

----Ss.302(b)/364/395/412---Appreciation of evidence---Occurrence was unseen and prosecution, to prove its case against accused, had relied upon evidence in form of last seen, recovery, place of occurrence pointed out by accused and motive for commission of offence--­Statements of prosecution witnesses revealed that none of them knew accused prior to the occurrence and for the first time they saw him on the day of occurrence-- `Accused, after his arrest was never put to test of identification parade and on the basis of such type of evidence it would be unsafe to rely upon statements of said witnesses---One of the prosecution witnesses, identified the accused before the Court during trial but such identification after a period of almost five years of occurrence, was not reliable---No evidence was on record to show as to when the deceased was done to death and no proximity of time was given between death and last seen---Evidence of last seen was a very weak type of evidence---Prosecution had only relied upon statement of police officials, whereas at relevant time Lamberdar and other respectables of the village were available, but none of them was made to join the recovery proceedings---Said police officials though had no personal malice to falsely implicate accused, but, in circumstances of the case it would be unsafe to rely upon sole statements of police officials to convict accused on charge of crime entailing capital sentence ---Co­ accused never led to recovery of any belonging of deceased and no direct evidence was on record to connect him with murder of deceased--­Recovery of van allegedly belonging to deceased from joint possession of accused persons was not sufficient to connect them with commission of offence---Statements of prosecution witnesses showed that the accused persons were taken together to place where accused had allegedly thrown dead body of deceased during investigation---Possibility that said place was pointed out jointly by all accused persons, could not be ruled out--­of Investigating Officer was not clear as to whether during investigation he observed any marks of struggle or dragging etc at the spot---No material evidence from the spot was collected by Investigating Agency to show that accused attempted to dispose of the dead body from the said spot---Such piece of evidence being not free from doubt, could not be relied upon---Case being full of doubts, accused were entitled to get benefit of the said doubts--Conviction and sentence awarded to accused by Trial Court, were set aside and they were acquitted of the charges, in circumstances.

Tayab v. The State 1995 SCMR 412; Abdul Ghani and 3 others v. The State 1976 PCr. LJ 1462 and Khalas Khan and another v. The State 1975 PCr.LJ 172 ref.

Rai Shahadat Ali Kharal and Najamul Hassan Gill for Appellants (at State expenses).

Mian Abdul Qayyum Anjum for the State.

Date of hearing: 7th February, 2003.

2003 M L D 1573

[Lahore]

Before Khawaja Muhammad Sharif, J

KHADIM ALI and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.882 of 2001, heard on 16th January, 2003.

Penal Code (XLV of 1860)---

----Ss.302(a)/324/337-A(1)/337-F(i)/34---Appreciation of evidence--­Five persons were named in the F.I.R. including two accused persons, but three of them had been acquitted---Statement of complainant revealed that co-accused had caused injuries on his body, but said injuries were never mentioned in the F.I.R. and conflict existed between ocular account of complainant and medical evidence with regard to such injuries---Apparently in order to become a witness in the case alleged injuries were self-inflicted---No recovery was effected from co-accused and he was also found innocent by the police---Possibility of false implication of co-accused in the case could not be ruled out because two months prior to the occurrence, co-accused was injured by the complainant and a case under S.324, P.P.C. was pending against the complainant and in order to blackmail and pressurize the co-accused, possibility of his false involvement could not be ruled out ---Appeal filed by co-accused was accepted and his conviction and sentence were set aside---Ocular account in respect of accused, however, was fully corroborated by medical evidence---Gun was recovered from the accused and two crime empties were recovered from the place from where accused had fired at the deceased and according to report of Fire-Arm Expert said crime empties matched with gun recovered on pointation of the accused---Prosecution, in circumstances, had proved its case against accused beyond any doubt----Appeal to the extent of accused was dismissed.

Malik Noor Muhammad Awan for Appellants.

Muhammad Masood Iqbal for the State.

Date of hearing: 16th January, 2003.

2003 M L D 1580

[Lahore]

Before Rustam Ali Malik, J

MUHAMMAD AMIR and others---Petitioners

Versus

D.C.O., SADIQIA DIVISION, BAHAWALNAGAR and others---Respondents

Civil Revision No.486-D of 1998/BWP, decided on 29th February, 2002.

Specific Relief Act (I of 1877)----

----S.42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration---Temporary injunction, grant of---Plaintiffs filed suit for declaration to the effect that orders passed by Authorities below regarding 'Warabandi' of outlet were illegal, void, ineffective and against their rights---Application for temporary injunction was also filed alongwith suit by plaintiffs in which it was requested that orders of Authorities below regarding Warabandi be not implemented during pendency of suit---Order passed by officers clothed with authority could not be said to have been passed without lawful authority---Authorities had issued notices to all co-sharers of outlet and opportunity of being heard was also provided to them---Suspending the operation of orders passed by Authorities would amount to setting aside said orders---Civil Court was competent to set aside Warabandi, but suspending the operation of orders of Authorities till the final disposal of suit, was without any lawful justification---Balance of convenience was not in favour of the plaintiffs nor they seemed to have a good arguable case---Plaintiffs in circumstances would not suffer any irreparable loss in the case the implementation of said orders was not suspended till final disposal of the suit---Trial Court had rightly dismissed application for temporary injunction and Appellate Court had correctly declared to do otherwise--­Concurrent order of Courts below not suffering from any illegality or material irregularity could not be interfered with by High Court.

Ch. Muhammad Afzal Pansota for Petitioners.

Nadeem Iqbal Chaudhry for Respondent No. 10.

Date of hearing: 29th July, 2002.

2003 M L D 1583

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Jahangier, JJ

SHARAFAT ALI alias EIDU and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.785 and Murder Reference No.332 of 1998, heard on 30th January, 2003.

(a) Penal Code (XLV of 1860)-----

----S.302(b)/34---Appreciation of evidence ---F.I.R. was promptly lodged and it was a broad daylight occurrence ---Both accused were armed with knives add large number of injuries on person of deceased had suggested that those were caused by more than one assailant---Parties were known to each other and no previous background of enmity was found between the parties---No question, in circumstances was of false implication of accused person in the case---Mere relationship of witnesses with deceased was no criterion to discard their testimony and they could not be termed as interested witnesses---No conflict was found between ocular account and medical evidence---Eye-witnesses were present at the spot at the time of occurrence and had witnessed the same---Motive was attributed to accused and not to co-accused---Trial Court, in circumstances had rightly awarded death sentence to accused and life imprisonment to co-accused who being brother-in-law of accused had acted under influence of accused---Knives recovered from accused were found to be stained with human blood according to report of the Chemical Examiner and that of Serologist---Sufficient material was on record against accused persons in the shape of ocular account and medical evidence which had connected them with commission of offence---Prosecution having proved its case against accused persons beyond any doubt, conviction and sentence recorded against .them by Trial Court were maintained--Death sentence awarded to accused was confirmed and murder reference to his extent was replied in affirmative.

(b) Penal Code (XLV of 1860)---

---Ss. 302(b) & 34---Appreciation of evidence---If Court was of the opinion that eye-witnesses account was fully corroborated by medical evidence and eye-witnesses were trustworthy who could be relied upon, then there was no need of any other corroboration either from motive or from the recoveries on pointation of accused persons.

Waris Khan v. The State 2001 .SCMR 387 ref.

Manzoor Qadir and-Pervez Akhtar for Appellants.

Muhammad Anwar Tiwana for the State.

Date of hearing: 30th January, 2003.

2003 M L D 1596

[Lahore]

Before Mian Saqib Nisar, J

MUHMMAD DIN and others---Petitioners

Versus

Maulana MUHAMMAD YAHYA---Respondent

Civil Revision No.312-D of 1988/BWP, decided on 23rd July, 2002.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.2 & 3---Suit for declaration and permanent injunction---Plaintiff claimed ownership of suit property on basis of sale-deed in his favour and sought permanent injunction against defendants restraining them from interfering in his possession and forcibly dispossessing him from the suit property---Trial Court dismissed suit, but Appellate Court setting aside judgment of Trial Court, remanded case with direction that Trial Court should hold inquiry as to whether the plaintiff was in possession of suit-land at the time of filing the suit and was dispossessed during pendency of suit despite injunction of the Court---Validity---Plaintiff had not applied for the amendment of plaint, seeking possession of suit property---If plaintiff was dispossessed from the suit property in violation of status quo order of the Court, he could have got his plaint amended and also initiated proceedings under provisions of O.XXXIX. Rr.2 & 3, C.P.C.---Such action having not been taken, Appellate Court was not legally correct to have remanded the case, instead of deciding the matter on the basis of available record.

Nadeem Iqbal Chaudhry for Petitioners.

M.M. Bhatti for Respondent.

Date of hearing: 23rd July, 2002.

2003 M L D 1598

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Jahangier, JJ

IMTIAZ KHAN and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 1188 of 1998 and Murder Reference No.459 of 1998, heard on 28th January; 2003.

Penal Code (XLV of 1860)---

----S.302(b)/34---Appreciation of evidence ---F.I.R. was promptly lodged---Neither question of mistaken identity arose because parties were well known to each other nor point of false implication or substitution was involved---Statements of prosecution witnesses were fully corroborated by medical evidence ---Co-accused who according to F.I.R., was armed with knife, tried to give injury on person of deceased but he could not inflict the same---Sentence awarded to co-accused by Trial Court was set aside granting him benefit of doubt ---Conviction of other two accused who were armed with lethal weapons and had caused injuries to the deceased were maintained, but sentence of one of said two accused who was 16/17 years old was converted from S.302(b), P.P.C. to S.308, P.P.C. and his death sentence was set aside and murder reference to his extent was replied in the negative and he was awarded 14 years' R.I. with direction to pay Diyat amount to legal heirs of the deceased---Other accused having been attributed specific injury, no mitigating circumstances were available in his case and his death sentence was confirmed and murder reference was replied in the affirmative to his extent.

Arshad Mehmood Chaudhry for Appellants.

Miss Nowsheen Taskeen for the State.

Date of hearing: 28th January, 2003.

2003 M L D 1605

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD AMIR---Petitioner

Versus

PROVINCE OF PUNJAB through District Collector Bhakkar and another---Respondents

Civil Revision No.617-D of 1998, heard on 22nd January, 2003.

Colonization of Government Lands (Punjab) Act (V of 1912)-----

----Ss.10 & 30---Specific Relief Act (I of 1877), S.42---Allotment of land under 15 Years' Scheme---Cancellation of allotment---Suit for declaration---Suit land was allotted under 15 Years' Scheme (Chashma Barrage Affectees) and possession was ordered to be delivered to the allottee---Factum of delivery of possession was recorded in Roznamcha Waqiati and allottee was in continuing possession ever since---Allottee brought land under cultivation and was also residing there---Said allotment was cancelled without any notice to the allottee---Suit by allottee against such cancellation was decreed by Trial Court, but Appellate Court setting aside judgment and decree of Trial Court, dismissed the suit---Only ground on which allotment of allottee/plaintiff was, cancelled was that allottee had not obtained possession and that he was not paying Zar-i-Lagan---Evidence on record had fully established that allottee was given possession in accordance with law; he was continuing in possession that he had paid all the instalments and that he had fulfilled all terms of allotment---Appellate Court had failed to read evidence while .dismissing suit by allottee and had acted without jurisdiction while passing impugned judgment and decree---High Court, in exercise of its revisional jurisdiction, set aside judgment and decree passed by Appellate Court and restored judgment and decree of Trial Court.

Malik Noor Muhammad Awan for Petitioner.

Nemo for Respondents.

Date of hearing: 22nd January, 2003

2003 M L D 1608

[Lahore]

Before Asif Saeed Khan Khosa, J

Mst. GULNAZ BIBI---Petitioner

Versus

Mian MUHAMMAD YOUNAS, S.-I and 2 others---Respondents

Writ Petition No.6351 of 2003, decided on 30th May, 2003.

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

----Ss.10/11----Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---Petitioner/accused, who was about twenty years of age was major, adult and sui juria, had categorically and emphatically controverted and denied allegation contained in the F.I.R. regarding her abduction and showing Nikahnama had contended that she had, in fact, contracted marriage with alleged co-accused of her own free will and volition---Petitioner had also refuted allegation of Zina against her on basis of said Nikahnama---Presumption of correctness being attached to the said registered Nikahnama; lodging of impugned F.I.R. by complainant, who was father of the petitioner, appeared to be an outcome of frustration and malice on the part of complainant---Allowing such an F. I. R. to continue to hold the field, would amount to an abuse of process of law which could not be allowed to be perpetuated---F. I. R. against petitioner was quashed, in circumstances.

Rana Habib-ur-Rehman Khan for Petitioner

Ms. Rabbiya Bajwa for Respondent No.3.

Majeeb Faisal Chaudhry, Addl. A.-G. for Respondents Nos.1 and 2.

Date of hearing: 30th May, 2003.

2003 M L D 1612

[Lahore]

Before Maulvi Anwarul Haq and Abdul Shakoor Paracha, JJ

AMMAD YAQUB and 5 others---Appellants

Versus

ABDUL AZIZ and another---Respondents

Regular First Appeal No.34 of 2000, heard on 26th February, 2003

(a) Qanun-e-Shahadat (10 of 1984)-----

----Arts.78 & 79---Modes of proving signature or writing as provided under Arts.78 & 79. of Qanun-e-Shahadat, 1984 detailed.

Following are the modes of proving a signature or writing under Articles 78 and 79, Qanun-e-Shahadat, 1984:

By calling the person who signed or wrote the document; by calling a person in whose presence the document was signed or written; by calling a Handwriting Expert; by calling a person acquainted with the handwriting of the person by whom the document was supposed to be signed or written; by comparing in Court the disputed signature or writing with some admitted signature or writing; by proof of an admission by a person who was alleged to have signed or written the document that he signed or wrote it; by the statement of a deed professional scribe, made in the ordinary course of business, that the signature on the document was that of particular person, signature was proved to have been made if it was shown to have been made at the request of a person by some other person e.g. by the scribe who signed on behalf of the executant; and by other circumstantial evidence.

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

----S.12---Suit for specific performance of agreement of sale---Both marginal witnesses of agreement to sell had stated that defendants had executed said agreement and had themselves affixed their thumb ­impressions on the same---Said witnesses had also stated that general power of attorney executed by defendants in favour of a person in respect of same property, was also attested by them as marginal witnesses and that defendants had put their signatures on both said documents---Said witnesses also appeared before the Sub-Registrar--­Plaintiffs also produced petition-writer as witness who had scribed the agreement of sale---Plaintiffs, in circumstances, were able to prove agreement to sell in their favour and power-of-attorney---Execution of said documents had been admitted by defendants in their written statement---Sequence of events had shown that in fact defendants had agreed to sell disputed property to plaintiffs, had received amount and for that purpose had executed agreement to sell and had appointed their attorney---Defendants having agreed to sell suit property for consideration and executed agreement to sell in favour of plaintiffs, plaintiffs were entitled for the decree for, specific performance of agreement of sale---Suit was rightly decreed by Trial Court.

Sanaullah and another v. Muhammad Manzoor and another PLD 1996 SC 256 and Siraj Din v. Mst. Jamila and another PLD 1997 Lah. 633 ref.

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

----O.I, R.9---Misjoinder or non-joinder of necessary parties---Effect---Suit could riot be dismissed for mis joinder or non-joinder of necessary parties.

Uzin Export Import Enterprises for Foreign Trade, Karachi v. Union Bank of Middle East Ltd., Karachi and another PLD 1994 SC 95 ref.

Ch. Azmatullah for Appellants.

Ch. Noor Hussain for Respondent No. 1.

Fawzi Zafar, A.A.-G. for the Official Respondent No.2

Date of hearing: 26th February, 2003.

2003 M L D 1619

[Lahore]

Before Khawaja Muhammad Sharif, J

YASMEEN BIBI---Petitioner

Versus

THE STATE---Respondent

Writ Petition No.5228 of 2003, decided on 25th April, 2003.

Penal Code (XLV of 1860)---

----S.354---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18---Criminal Procedure Code (V of 1898), S.347---Sending case to Court. of Sessions Judge---Jurisdiction of Magistrate---Accused, on F.I.R. under S.354, P.P.C., was arrested and was produced before Magistrate for sending him to judicial lock-up--Magistrate who had no power to try the case as same was triable by Sessions Judge, while sending accused for judicial remand, observed that offence under S.18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 had been made out against the accused---Magistrate who was only requested to send accused to judicial lock-up, could not have given such observation because neither; any challan was submitted before him nor he was trying that case---Appellate Court, in circumstances, had rightly accepted revision against order/observation of the Magistrate---Order in revision by Appellate Court in absence of any illegality or irregularity could not be interfered with.

PLD 1981 SC 431 and 1993 PCr.LJ 1684 ref.

Malik Muhammad Ameer Awan for Petitioner

2003 M L D 1626

[Lahore]

Before Mian Hamid Farooq, J

Mst. NASRIN AKHTAR and 2 others ---Petitioner

Versus

MUHAMMAD AAMER and 8 others---Respondents

Civil Revision No. 1616 of 2001, Civil Miscellaneous Nos.2-C and 526 of 2002, decided on 7th January, 2003.

Civil Procedure Code (V of 1908)---

----S.12(2) Application for rocalliug order on ground of fraud and misrepresentation---Applicants in their application under S.12(2), C.P.C. had sought recalling of order of Court whereby on basis of an agreement, revision petition was disposed of in terms of said compromise---Names of applicants though were mentioned in the said compromise, but they were not signatories to the same---Applicants, in circumstances, were not bound by terms of compromise and order sought to be recalled by them would not operate qua them.

Azhar Aqeel Arain for Petitioners.

Faisal Wajdani for Respondents.

2003 M L D 1627

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUSHTAQ AHMAD alias SHAQI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No. 154 of 2003, decided on 5th May, 2003.

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

----Ss.338, 435 & 439---Penal Code (XLV of 1860), Ss.302/380--­ Application for tendering pardon and declaring accused as an approver in the case---Case was registered against accused persons other than applicant/accused under Ss.302/380, P.P.C. and accused was introduced as an accused during investigation and was ascribed role of abetment--­Accused moved application to Trial Court for tendering pardon to' him and declaring him as an approver in the case, which application was dismissed---Accused had claimed that he being acquainted with true facts would narrate same against co-accused if he was pardon to under provisions of S.338, Cr.P.C.---Validity---Power to tender a pardon at any time before judgment was passed, no doubt rested with the High Court or Court of Session trying the case, but it was not a vested right of an accused to become an approver and claim for pardon---Moral obligation of a person as well as in view of Injunctions of Islam the truth should not be suppressed and if an accused had the courage to confess his guilt, why he must not face the legal consequences instead of claiming for pardon---Sessions Judge, only in exceptional cases, would move to the District Magistrate to tender pardon to an accomplice and one of such circumstance could be that it was otherwise not possible to bring home the guilt to the accused---Said power had to be exercised with great care and caution and on ample grounds and with a clear recognition of the risk which it necessarily involved when allowing an offender to escape just punishment at the expense of possibly an innocent person---Such judicial discretion had to be exercised in case of extreme necessity and not on extraneous considerations---Application of accused for tendering pardon and declaring him as approver under S.338, Cr.P.C., had rightly been dismissed by Trial Court---In absence of any illegality or jurisdictional defect, order of Trial Court which was well -reasoned, could not be interfered with in revision.

Muhammad Iqbal v. The State 1984 PCr.LJ 1197 ref.

Altaf Ibrahim Qureshi for Petitioner.

2003 M L D 1632

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ASGHAR---Applicant

Versus

THE STATE---Respondent

Criminal Application No.424 of 1993, decided on 15th November, 2001.

Penal Code (XLV of 1860)---

----S.319---Payment of Diyat---Application for release of accused who was unable to make payment of Diyat amount ---Maintainability---Accused was sentenced to 5 years' R.I. as Tazir and also to make payment of Diyat amount and in case of default in such payment, accused was to be kept in jail till payment of Diyat amount and his said detention was to be treated as simple---Sentence of imprisonment, on appeal was reduced to already undergone by accused, but order with regard to payment of Diyat amount was maintained by the High Court--­Accused who was unable to make payment of Diyat amount filed application for his release---Said application was not maintainable as High Court had already decided appeal and had passed specific order that accused would be kept in jail till Diyat amount was fully paid by him.

Rana Mehmood Ali Khan for Applicant.

Date of hearing: 15th November, 2001.

2003 M L D 1634

[Lahore]

Before Tanvir Bashir Ansari, J

ATTA MUHAMMAD ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 1251-F of 2002/BWP, decided on 16th April, 2002.

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

----S.5 & Sched---Suit for maintenance---Suit was decreed on the basis of compromise arrived at between the parties---Defendant had challenged compromise decree on the ground that counsel who appeared for him in the said compromise did not have the requisite authority from him--­Compromise deed was produced by the parties during the course of proceedings before Family Court and the Court besides exhibiting compromise which had recorded statements of plaintiffs and defendant were present in person---Parties were identified by their counsel--­Defendant being present on the date of compromise, and having made statement supporting said compromise no justifiable reason was shown for interfering in the compromise decree produced before the Trial Court---Appellate Court in circumstances had rightly confirmed order of Family Court whereby application of defendant for dismissing compromise decree was set aside by Trial Court---Concurrent judgments of Courts below could not be interfered with.

Shamshir Iqbal Chughtai for Petitioner.

2003 M L D 1635

[Lahore]

Before Ch. Ijaz Ahmad and Syed Sakhi Hussain Bukhari, JJ

LIAQAT ALI ---Petitioner

Versus

CITY NAZIM and others---Respondents

Writ Petition No.4864 of 2002, decided on 27th March, 2002.

(a) Constitution of Pakistan (1973)---

----Art.199---Constitutional jurisdiction, exercise of---Constitutional petition is not maintainable against mere apprehensions.

National Re-Rolling Steel Mill's case 1968 SCMR 317(2) ref.

(b) Punjab Local Government Ordinance (VI of 1979)-----

----Ss.64 & 65---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Petitioner had contended that his lands were not situated in the notified area of Municipal limits of City, resultantly the City Nazim had no authority to take action against him and that the petitioner had been issued a notice by the City Nazim under Ss.64 & 65 of the Punjab Local Government Ordinance, 1979 which had been repealed in view of S.196 of the Punjab Local Government Ordinance, 2001---Petitioner had not attached any document with the Constitutional petition to show that City Nazim had initiated proceedings against the petitioner---High Court disposed of Constitutional petition with direction to the District. Coordination Officer to look into the matter personally and pass appropriate order after providing proper hearing to all concerned including the petitioner and representative of the respondent within twenty days of receipt of order of the High Court.

Muhammad Akram Javed for Petitioner.

2003 M L D 1639

[Lahore]

Before Ch. Ijaz Ahmad, J

AKRAM HUSSAIN BUTT---Petitioner

Versus

L.D.A. through Director-General and another---Respondents

Writ Petition No. 16556 of 1997, decided on 29th April, 2002.

Lahore Development Authority Act (XXX of 1975)---

----S.37---Constitution of Pakistan (1973), Art.199---Constitutional petition recovery of dues---Principle of natural justice---Petitioner had prayed that the respondents initiated proceedings against him without issuing any notice to him, thus the action of the respondents was in violation of principle of natural justice---Validity---Counsel for the petitioner was not present before the Court---High Court proceeded to dispose of the matter on merits---Director, Estate Management, Lahore Development Authority was directed to proceed in the matter after issuing notice to the petitioner and finalize the matter after providing proper hearing' to the petitioner within two months henceforth and to submit its report to the Deputy Registrar Judicial of the High Court within the stipulated time---Respondents had been directed to file report and parawise comments but had failed to file the same and had not filed any application for vacation of stay granted by the High Court--­Respondents were restrained to dispossess the petitioner from the property in question till the time fixed by the High Court for passing an order in the matter---Constitutional petition was disposed of in circumstances.

M. Haleem and others v. H. Muhammad Nasim and others PLD 1970 SC 270 ref.

Nemo for Petitioner.

Mian Muzaffar Hussain, Legal Advisor for Respondents.

2003 M L D 1641

[Lahore]

Before Mian Nazir Akhtar, J

Malik FURKAN AHMAD---Petitioner

Versus

JUDGE FAMILY COURT, LAHORE and another---Respondents

Writ Petition No.20131 of 2001, decided on 17th May, 2002.

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

----S.11---Constitution of Pakistan (1973), Art. 199 --- Constitutional petition---Petitioner had assailed the order passed by the Family Court whereby petitioner's right to produce evidence was closed and the subsequent order whereby the Court had rejected the petitioner's application for recalling its earlier order was passed---Validity--­Petitioner's counsel was unwell on the adjourned date; but his witnesses, were present in the Court---In case the Court was not inclined to adjourn the case it ought to have recorded the evidence of the witnesses who were present but it had no justification to close the petitioner's evidence which was likely to cause prejudice to the petitioner's cases which had been consolidated and had to be decided together--­Petitioner's application for recalling order closing his evidence, had been wrongly rejected by the Court on the erroneous view that the petitioner had lost three opportunities for producing evidence which was contrary to the record---Petitioner had failed to produce his evidence only on one date of hearing and on the next date his witnesses were present but his counsel was absent as he was not feeling well---Orders passed by the Family Court were set aside by the High Court with direction to the Family Court to allow the petitioner a reasonable opportunity to produce his evidence and then decide the cases on merits in accordance with law.

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

----S.9---Written statement---Failure to personally file written statement by the defendant---Effect---Procedural provisions are not to be used to trap party--Family Court had entertained the written statement filed by the petitioner's counsel and had framed issues in light of pleadings of the parties---If the Trial Court for any valid reason, came to the conclusion that the petitioner's written statement could not be taken into consideration it could allow the petitioner another opportunity to file a written statement in accordance with law---Contention of the respondent that the written statement had not been personally filed by the petitioner before the Family Court and thus could not be considered was repelled in circumstances.

Tauqeer Ahmed Munir for Petitioner.

Balagh Haider for Respondents.

Date of hearing: 16th April, 2002.

2003 M L D 1644

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD ASHRAF and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.15-B of 2003, decided on 21st January, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.324/337-F(ii)/34---Bail, grant of---Further inquiry---Mere presence of accused with 7 MM Rifle at the spot had been shown in the F.I.R., but he had been ascribed no overt act in the commission of crime alleged ---Co-accused though had been ascribed the role of Lalkara, but he did not cause any injury despite he allegedly was armed with .30 bore pistol---Nothing had been recovered from the accused---Question of their sharing common intention with their co-accused in the attempt of murder of brother of complainant and causing injury to another, needed further inquiry---Case of accused persons was covered under subsection (2) of S.497, Cr.P.C.---Accused were behind the bars for the last about 3-1/2 months and were previous non-convicts---Accused were entitled to bail, in circumstances.

Syed Murtaza Ali Zaidi for Petitioners.

Iftikhar Ibrahim Qureshi for the State.

Muhammad Malik for the Complainant.

Date of hearing: 21st January, 2003.

2003 M L D 1648

[Lahore]

Before Parvez Ahmad, J

Mst. KHUIZSHID BIBI and 2 others---Petitioners

Versus

NAZIR AHMAD and another---Respondents

Civil Revision No. 1436 of 1996, heard on 12th August, 2002.

Specific Relief Act (I of 1877)----

----Ss.42 & 53---Suit for declaration and permanent injunction---Plaintiff had filed suit on the ground that the defendants had collusively got a mutation attested in name of one of the defendants and had excluded the plaintiff from the suit property---Trial Court had dismissed the suit of the plaintiff but the same was decreed by the Appellate Court ---Validity--­Predecessor-in-interest (now deceased) of the defendant was the real brother of the plaintiff and had earlier filed a civil suit alongwith the plaintiff and two other defendants seeking relief .of possession of four Kanals of land against one of the defendants other than the defendants in the present suit---Said defendant had made a conceding statement on the basis of which a consent decree in favour of the said predecessor-in-­interest of the defendant, plaintiff and two other defendants was passed--­Said defendant who had conceded the suit; thereafter, was no longer owner of the suit property and was not competent to transfer or alienate the same to anyone in any manner---Exclusion of the plaintiff by force of the said mutation., allegedly executed by the defendant who had given conceding statement, was not legal and was not based on facts---Plaintiff alongwith three other defendants continued to be owners of suit property on the basis of decree passed in their favour---.High Court partly allowed the revision petition and the impugned judgment and decree of the Appellate Court was modified to the extent that the three other defendants alongwith the plaintiff were owners of the suit property jointly and the subsequent mutation was not valid arid legal.

Muhammad Akbar Cheema for Petitioners.

Muhammad Ramzan Wattoo for Respondents Nos. 1 and 2.

Date of hearing: 12th August, 2002

2003 M L D 1651

[Lahore]

Before Abdul Shakoor Paracha, J

NAZIRAN BIBI---Petitioner

Versus

Mst. ALLAH RAKHI and 7 others---Respondents

Civil Revision No. 1178-D of 1997, heard on 28th February, 2002.

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

----S.42---Suit for declaration---Suit was decided in favour of the plaintiff---Appellate Court on appeal, remanded the case to the Trial Court to be decided afresh after recording fresh evidence---Trial Court, thereafter, dismissed the suit of the plaintiff while the Appellate Court had maintained the order of the Trial Court---Validity---Contention of the plaintiff that her statement recorded on oath in earlier round of litigation should have been accepted by the Trial Court was repelled because decree awarded to the plaintiff earlier had been set aside by the Appellate Court and the case had been remanded---Order of the Trial Court granting relief to the plaintiff had merged in the remand order and was no longer in the field---Plaintiff had not appeared in support of her plaint and the plaint was not the substitute of the evidence-- Without appearance of the plaintiff in the case to claim that she was the daughter of the deceased predecessor, decree could not have been awarded to the plaintiff---Onus of proving that the plaintiff was the daughter of the deceased predecessor was on her which she had failed to discharge--­Written assertion of the plaintiff in the plaint had been denied by the defendant---Concur finding of fact recorded by two Courts below of competent jurisdiction that the plaintiff had failed to substantiate her claim that she was the daughter of the deceased predecessor---No exception could be taken to the judgments of both the Courts below as there was no misreading or non-reading of evidence---High Court accordingly dismissed the petition.

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

----S.42---Qanun-e-Shahadat (10 of 1984), Arts.117 & 118---Suit for declaration---Concurrent findings of fact by Courts below---Burden of proof---Non-appearance of plaintiff in witness-box---Contention of the plaintiff was that she was the daughter of deceased predecessor--­Defendant had maintained that the plaintiff had not appeared in support of her plaint and plaint was not the substitute of evidence ---Validity--­Onus of proving that plaintiff was the daughter of the deceased was on her which she had failed to discharge---Assertion of the plaintiff in the plaint had Been denied by the defendant---Concurrent findings of fact recorded by two Courts below of competent jurisdiction that the plaintiff had filed to substantiate her claim did not suffer from any misreading or non-reading of evidence---No exception could be taken to the judgments of both the Courts below.

Ishfaq Qayyum Cheema for Petitioner.

Ch. Anwarul Haq for Respondents.

Date of hearing: 28th February, 2002.

2003 M L D 1654

[Lahore]

Before Khawaja Muhammad Sharif, J

SYED-UL-AAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5573-B of 2002, decided on 9th September, 2002.

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

----S.497---Penal Code (XLV of 1860), Ss.302/324---Bail, grant of--­Accused remained absconder for one year and four months---Accused had not only caused ineffective firing, but had also given butt blow alongwith his co-accused to complainant who was injured and thus was star witness of the prosecution ---Two persons were killed in the incident and offence against accused fell within the ambit of S.497(1), Cr.P.C.--­No ground for grant of bail having been made out, bail application was dismissed.

Khalid Ibne Aziz for Petitioner.

Muhammad Rafique for the State.

Date of hearing: 9th September, 2002.

2003 M L D 1660

[Lahore]

Before Mrs. Nasira Iqbal, J

GHULAM RASOOL ANJUM---Petitioner

Versus

Mst. FARZANA KAUSAR and 2 others---Respondents

Writ Petition No.5555 of 2002, decided on 15th October, 2002.

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

----S.5 & Sched.---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Suit for recovery of dowry articles was decreed---Defendant had assailed the judgment of the Appellate Curt whereby the judgment of Family' Court was reversed ---Validity--­Plaintiff and her witness who was an independent witness being neighbour of the plaintiff, had given full details of the disputed articles of dowry---Receipts had been produced by the plaintiff regarding many of the dowry articles whereas the defendant had not produced any evidence for return of the dowry articles and had even not summoned his witness to prove that dowry articles had been returned---Preponderance of evidence was available in favour of the plaintiff having received dowry articles that she had claimed---Defendant had not been able to prove that he had returned the same through ' Punchayat' which in itself was admission that dowry articles had been received by him, therefore, there was no infirmity in the judgments of both the Courts below who had decreed the dowry only to the extent of fifty per cent of the amount claimed---No case was made out for interference in concurrent findings of fact by both the Courts below---Constitutional petition was accordingly dismissed by .the High Court---Outstanding amount due against defendant was directed to be deposited by him with the Family Court in five equal instatements within time fixed by the High Court.

Nadeem Mehmood Mian for Petitioner.

Zahid Ali Chaudhry for Respondent No. 1.

2003 M L D 1662

[Lahore]

Before Ch. Ijaz Ahmad, J

NAZIR MASIH---Petitioner

Versus

MUNICIPAL CORPORATION through Chief Officer and 2 others---Respondents

Writ Petition No.485 of 2001, decided on 12th January, 2001.

Constitution of Pakistan (1973)-----

----Arts.199 & 4---Right of individual to be dealt with in accordance with law---Direction of the High Court had been sought for the concerned Assistant commissioner/respondent for exercise of jurisdiction as he had not taken any action on application of the petitioner---Copy of the Constitutional petition was sent to the Assistant Commissioner by the High Court with direction to decide the application of the petitioner till the specified date in. case he had not already passed an order---Petitioner was directed to appear in the office of the Assistant Commissioner on the said specified date--Till that date Assistant Commissioner was restrained to take any action against the petitioner---High Court disposed of the writ petition accordingly.

Justin Gil for Petitioner.

2003 M L D 1663

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MAQBOOL AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2454-B of 2002, decided on 3rd October, 2002.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.467/468/471/420/109--­Prevention of Corruption Act (II of 1947), S.5---Bail, grant of---Main accused who was custodian of the file in question and was also found responsible for alleged forgery, had been granted bail and case of accused was not distinguishable from the case of the main accused--­Accused was also entitled to same treatment---Accused was admitted to bail, in circumstances.

Iftikhar Ibrahim Qureshi and Mehr Khalil-ur-Rehman for petitioner.

Javed Iqbal for the State.

Date of hearing: 3rd October, 2002.

2003 M L D 1666

[Lahore]

Before Maulvi Anwarul Haq, J

MUNSHI KHAN---Petitioner

Versus

KHAN ZAMAN and another---Respondents

Civil Revision No. 1940 of 1996, heard on 2nd August, 2002.

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

----O.X, R.4(2)---Consequence of refusal or inability of pleader to answer the query by the Court--Trial Court had proceeded to pass an order for the personal appearance of the respondents---Failure of the respondents to appear before the Trial Court had resulted in dismissal of the suit under O.X, R.4(2), C.P.C.--Being aggrieved, respondents filed an appeal which had been allowed by the District Judge and the case had been remitted back for decision, on merits---Validity---Counsel for the respondent was admittedly present on the said date of hearing and there was nothing on record to suggest that any query had been trade from the said counsel and he had failed to answer the same---Proceedings hardly reflected any lack of interest on the part of the respondent---District Judge had correctly observed that the Trial Court had acted without lawful authority in ordering the personal appearance of the, respondents without any reason and then to punish, them for, non­appearance.

(b) Punjab Pre-emption Act (IX of 1991)---

----S.15---Qanun-e-Shahadat (10 of 1984), Art.77---Talb-i-Ishhad---Rules as to notice to produce secondary evidence---Application seeking permission to lead secondary evidence vis-a-vis notice of Talb-e­-Ishhad---Document in question was itself a notice and permission to lead secondary evidence was hardly necessary.

Mubeenuddin Qazi for Petitioner.

Nemo for Respondents.

Date of hearing: 2nd August, 2002.

2003 M L D 1668

[Lahore]

Before Maulvi Anwarul Haq and Parvez Ahmad, JJ

MUHAMMAD ASIF and 5 others---Appellants

Versus

Mian MUHAMMAD ZIA ---Respondent

Regular First Appeal No. 126 of 1997, heard on 6th May, 2002.

Specific Relief Act (I of 1877)----

----S.12---Civil Procedure Code (V of 1908), S.96---Specific performance of agreement to sell---First appeal---Defendants had contended that the alleged agreement to sell had been executed but the object of its execution was to be a security for the return of the amount invested by the plaintiff in the construction business of the defendant--­No suit property had been agreed to be sold in favour of the plaintiff--­Validity---Plaintiff had come to the Civil Court seeking a decree for specific performance of the agreement to sell and for the purposes of proving the said agreement he had produced marginal witness of the said agreement to sell who had affixed his signatures upon it---Said witness had stated that the amount of Rs.12,90,000 had been paid by the plaintiff to the defendants as earnest money out of the total sale consideration of Rs.16,50,000 and one of the defendants before the Trial Court, whom the witnesses specifically named, in his presence had received the said amount and affixed his signatures and thumb-impression upon the said agreement---Said witness had further stated that it was agreed between the parties that the remaining sale price to the tune of Rs.3,60,000 would be paid at the time of registration of sale-deed---Another witness of the plaintiff had stated that he had attested the said agreement and had admitted his signatures upon it---Said witness had corroborated the earlier marginal witness in all other details pertaining to the payment and receipt of money in his presence by the plaintiff and the defendant--­Scribe of the agreement to sell had been produced by the plaintiff who had corroborated the statements of the two marginal witnesses produced by the plaintiff by stating that the said agreement had been written by him and it had been signed by the abovesaid two marginal witnesses and by the said particular defendant in his presence---Plaintiff had proved the said agreement by producing the scribe and the marginal witnesses---No evidence has been produced by the defendant in support of his version--­Defendant had failed to prove the alleged repayment of money advanced by the plaint Trial Court had rightly disbelieved the statement of the defence witness that he had returned the amount without any receipt which was quite unnatural on part of the said defendant---Order of the Trial Court did not suffer from an illegality or infirmity and was consequently maintained.

Riaz Karim Qureshi for Appellants.

Abdul Hafeez for Respondent.

Date of hearing: 6th May, 2002.

2003 M L D 1673

[Lahore]

Before Muhammad Khalid Alvi, J

MUHAMMAD ANWAR ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1056-B of 2003, decided on 14th May, 2003.

Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.380---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10/16---Bail, grant of---Further inquiry---Delay of 5 months in registration of case against accused was unexplained---If complainant's sister was abducted and he came to know on the same day of abduction by accused persons, then no reason of such a long delay in registration of case existed---Such delay, prima facie, had cast serious doubt on prosecution story---Neither alleged abductee nor any articles mentioned in the F.I.R. were recovered from accused---Medical evidence has not supported the case as alleged abductee had .refused to get herself medically examined---Prima facie, case of accused appeared to be one of further inquiry---Accused was admitted to bail, in circumstances.

Mahar Tahir Amjad for Petitioner.

Jameel Chohan for the State.

Date of hearing: 14th May, 2003.

2003 M L D 1677

[Lahore]

Before Muhammad Akhtar Shabbir, J

PUNJAB PROVINCE through the Collector, Rawalpindi and another---Appellants

Versus

MUHAMMAD ARIF---Respondent

Appeal from order No. 86 of 1999, heard on 23rd May, 2002.

(a) Arbitration Act (X of 1940)---

----Ss.20 & 39---Limitation Act (IX of 1908), Ss.5, 14 & 2(7)---West Pakistan Civil Courts Ordinance (II of 1962), S.18---Arbitration agreement, application to file in Court---Appeal against order---Time spent in wrong forum---Condonation of delay---Respondents had filed in the High Court on 10-12-1999 after the expiry of period of limitation---Order of the Trial. Court rejecting application of the respondents had been made on 29-7-1999---Revision, against order of the Civil Court before Court of Additional District Judge had been returned to, the respondent on 16-11-1999 for-lack of pecuniary jurisdiction and the instant appeal had been filed in the High Court on 10-12-1999--­Respondents had not filed-any application for condonation ; Of delay --­Limitation for filing of petition under S.115, C.P.C. was 90 days and appeal against order of Trial Court could be filed in the High Court, within limitation---State had contended that the prosecution of the case in the wrong Court would provide the respondents the benefit of Ss.5 & 14 of the Limitation Act, 1908---Validity---Respondents had not shown sufficient cause for not filing the appeal within the period of limitation in the High Court---Respondents had to show that there was sufficient cause within the meaning of S.5 of the Limitation Act, 1908 for not preferring the appeal before .proper forum within the period of limitation for bringing the case within the ambit of principle governing S.14 of the Limitation Act, 1908---Respondents had to show that they had prosecuted the appeal before wrong forum in good faith---District Judge under S.18 of the West Pakistan Civil Courts Ordinance, 1962 had no jurisdiction to hear appeals against decrees above Rs.2,00,000 --- Mistake of the counsel would not be treated as an act done in good faith as the same was not done with due care and diligence and Would not amount to sufficient cause as contemplated under S.5 of the Limitation Act, 1908--­Presentation, of delayed appeal was an act of gross-negligence and rejection, of appeal on ;the count was in accordance' with law--­High Court, accordingly dismissed that appeal against the order.

Abdul Ghani v. Mst. Mussarat Rehana 1985 CLC 2529 ref.

(b) Limitation Act (IX of 1908)---

----Ss.2(7), 5 & 14-----Proceedings before wrong forum---Mistake of counsel ---Condonation- of delay---"Due diligence"' and "sufficient cause" --Connotation--Section,2(7) of the Limitation Act; 1908 provided that what was done -without due care and, attention could not be deemed to be done in good- faith---If Ss.5,& 14 of the Limitation Act; 1908 Were read in juxtaposition with each other, only that delay would appear to be condonable which, had occurred despite the fact that plaintiff had prosecuted his case with due diligence---Mistake of the, counsel would not be treated as an act donein good faith as' the same was not ,done with due care and diligence ,and would not amount 'to sufficient cause as .contemplated under, S.5 ofthe Act—Appellants had to explain the delay of each and, every day, showing sufficient cause.

Ghulam Ali v. Akbar alias Akoor and another PLD 1991 SC 957: Muhammad Nawaz Khan v. Mst. Farrah Naz PLD 1999 Lah. 238; Raja Karamatullah v. Sardar Muhammad Aslam Sukhera 1999 SCMR 1892 and Sardar Ahmad Yar Khan. v. Province of Baluchistan 2002 SCMR 122 ref.

Raja Muhammad Saeed Akram, A.A.-G. for Appellants

Abdur Rashid Awan for Respondent.

Date of hearing: 23rd May, 2002.

2003 M L D 1681

[Lahore]

Before Maulvi Anwarul Haq, J

SABIR---Petitioner

Versus

CHAIRMAN, WAPDA and 3 others---Respondents

Civil Revision No. 1422 of 2001, heard on 19th April, 2002.

Damages---

-----Civil Procedure Code (V of 1908), Ss.115, 96 & O.XI, R.33---S.iit for damages against WAPDA and another---Civil revision---Plaintiff had filed a suit for damages against the defendants claiming a sum of Rs.24,000 as damages for wrongful' death of his buffalo by electrocution whose milk he sold in the market to earn his livelihood---Trial Court had dismissed the suit as against one of the four defendants. and his name had been ordered to be deleted from the array of the defendants---Trial Court had proceeded with the trial against three other defendants who belonged to WAPDA and decreed the suit against them---Appellate Court set aside the decree against the said three defendants and their names were deleted from array of defendants, while it directed the Trial Court to proceed with the suit against the other defendant against whom suit had been dismissed by the Trial Court as the entire evidence on the record proceeded against the said defendant--­Validity---No occasion arose for the Trial Court to dismiss the suit against the said defendant either upon examination of the plaint or in view of the better statements---plaintiff had never stated that the said defendant was not responsible for the death of his buffalo---Plaintiff had made specific allegations against the said defendant---No ground thus existed for dismissal of the suit against the said defendant when the trial had yet to take place---No decree-sheet had been prepared regarding the dismissal of the suit against the said defendant as such, plaintiff could not have filed appeal against him---Said defendant was a party to the appeal---No allegation was made in the memorandum of revision or at the bar that the said defendant had not been served or that he had been proceeded against ex parte it a manner not warranted by law---All .the parties had been before the Appellate Court---Impugned order did not suffer from any illegality and was within the domain of the Appellate Court exercising powers in accordance with S.96 read with O.XLI, R.33, C.P.C.---High Court upheld the impugned orders of the Appellate Court and revision petition was consequently dismissed.

Khawar Farooq for Petitioner.

Malik Muhammad Imtiaz Mahl for Respondents Nos.1 to 3.

Ch. Muhammad Tufail for Respondent No.4.

Date of hearing: 19th April, 2002.

2003 M L D 1685

[Lahore]

Before Maulvi Anwarul Haq, J

PUNJAB TEXTILE WORKERS FEDERATION (REGD.), PUNJAB through General Secretary and another---Petitioner

Versus

PUNJAB PROVINCE WORKERS WELFARE BOARD through Chairman/ Secretary to Government of the Punjab, Labour and Manpower Department and another---Respondents

Writ Petition No.9268 of 1999, heard on 19th June, 2002.

Workers Welfare Funds Ordinance (XXXVI of 1971)-----

---Preamble, Ss.3, 4, 4-A, 11-A & 11-C(f)---Workers' Welfare Fund, 1976, Sched. A---Punjab Province Workers Plot Allotment Regulations, 1976, Reglns.3 & 8---Constitution of Pakistan (19731, Art.199---Constitutional petition---Establishment of Workers' Colonies---Allotment plots---Claim of development charges---Petitioners had challenged development charges claimed by Authority on ground that plots in colony established by Authority were to be given to petitioners free of cost--Validity---No provision existed in Workers Welfare Funds Ordinance, 1971 and Rules and Regulations, 1976 authorising the Authority to claim development charges from workers who were eligible to allotment of plots and whose applications for allotment were allowed---Regulation 8 of Punjab Province Workers Plot Allotment Regulations, 1976 had provided that plots would be allotted to workers free of cost---Condition regarding payment of development charges having not been supported by provisions of Workers' Welfare Funds Ordinance, 1971 and Rules and Regulations framed thereunder, act of Authority claiming development charges in respect of plots allotted to eligible workers, was declared to be without lawful authority by High Court---Any amount charged from eligible allottees/petitioners would be refunded to them.

Sheikh Abdul Hamid for Petitioners

Badar-ul-Amir Malik for Respondents

Date of hearing: 19th June, 2002.

2003 M L D 1689

[Lahore]

Before Rustam Ali Malik, J

MUHAMMAD AHMAD MUMTAZ ---Petitioner

Versus

MUHAMMAD LATIF and 4 others---Respondents

Civil Revision No.2577-D of 1996, heard on 19th November, 2002.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Suit for declaration and permanent injunction--­"Barsati" in dispute situated in a unit consisting of both commercial and residential portions, was transferred in the name of petitioner by Settlement Authorities and PTD was issued in his favour and he could claim to be transferee/owner of the said Barsati---Respondents had failed to produce any document in their favour indicating that Barsati in dispute had been transferred to them---Petitioner filed suit for declaration to the effect that he was owner of the said Barsati and claimed for mesne profits and also prayed for a permanent injunction restraining respondents from alienating said Barsati to any other person---Trial Court and Appellate Court had concurrently dismissed the suit by petitioner---Concurrent judgments and decrees passed by Courts below being the result of non-reading and misreading of evidence on record and suffering from material irregularity, were set aside by High Court in exercise of its revisional jurisdiction.

PLD 1984 SC 2131 and 1988 CLC 2304 ref.

Kh. Saeed-uz-Zafar for Petitioner.

Sh. Afzal Ahmed Qureshi for Respondents.

Date of hearing: 19th November, 2002.

2003 M L D 1694

[Lahore]

Before Parvez Ahmad, J

ZAHOOR AHMAD and 6 others---Petitioners

Versus

MUHAMMAD ASLAM ------Respondent

Civil Revision No.741 of 1996, heard on 17th January, 2003

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance of agreement to sell---Defendant admitted execution of agreement to sell arrived at between the parties and to have received earnest money from the plaintiff, but had alleged that period for performance of contract was settled as 15 days and that plaintiffs despite altering and enhancing said period fraudulently from 15 days to 2 months, had failed to make payment of remaining amount and to get property transferred in their names---Validity---Agreement arrived at between the parties did not reveal that time was intended to be or was settled as the essence of contract of sale between the parties---Nothing was on record to the effect that in the event of expiry of period settled, no claim would be lodged by the plaintiffs against defendant---If assumed for argument, that a forgery in period of performance of contract was committed even then nothing being on record to the effect that the time was essence of contract of sale, it would make no difference to the case of the parties--Trial Court had rightly decreed suit, and Appellate Court was not justified to set aside judgment and decree passed by Trial Court---High Court in exercise of its revisional jurisdiction, set aside judgment and decree passed by Appellate Court and restored that of Trial Court.

Ashtar Ausaf Ali for Petitioners.

Mirza Hafeez-ur-Rehman for Respondent.

Date of hearing: 17th January, 2003.

2003 M L D 1702

[Lahore]

Before M.A. Shahid Siddiqui, J

Mst. FOUZIA FARID----Petitioner

Versus

S.H.O., POLICE STATION SADDAR, CHICHAWATNI and 3 others---Respondents

Criminal Miscellaneous No.619-H of 2002, decided on 25th September, 2002.

Criminal Procedure Code (V of 1898)---

----S.491---Habeas corpus petition for recovery of minor---Petitioner had been married to the respondent for five years and was allegedly forced to leave the house of her husband six months after her marriage and take refuge in the house of her parents while she was pregnant---Petitioner had contracted second marriage after getting divorce from the respondent and the minor had been living with the petitioner, her parents and her second husband since her birth---Petitioner had alleged that the minor on her way back to her home from her school had been taken away by the respondents---Respondents had maintained that the petitioner herself had given the minor in the custody of the respondents under an agreement as she wanted to contract second marriage---Photocopy of the agreement allegedly executed by the petitioner had been produced ---Validity--­Scribe of the agreement produced by the respondents was not known--­Purported signatures of the petitioner appearing on the back of the stamp-paper appeared to be different from the signatures of the petitioner appearing under the name of the petitioner on the agreement---Minor was not more than four years of age---Petitioner had appended a certificate issued by the principal showing the date the minor last attended her school---Prima facie minor appeared to have been removed from the custody of the petitioner---Petitioner was given custody of the minor in view of her tender age---Respondent could approach the Guardian Court for obtaining custody of the minor.

Muhammad Zakariya Sheikh for Petitioner

Kabeer Muhammad for Respondents.

Masud Sabir for the State.

2003 M L D 1704

[Lahore]

Before Ch. Iftikhar Hussain, J

SHAFQAT SHEHZAD alias NAGOO---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.744-B of 2003, decided on 22nd May, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/337-A(i)/337­-L(ii)/148/149---Bail, grant of---Further inquiry---Accused had been ascribed two injuries with Sota to prosecution witness---One of those injuries was on the left upper eye and other on the left thigh---Said injuries attracted offences under Ss.337-A(i) & 337-L(ii), P.P.C. which according to Second Schedule to Cr.P.C. were bailable ---Accused had been ascribed no injury to the deceased---Question whether in such circumstances, accused could be held liable for murder of deceased, needed consideration and same was covered under .subsection (2) of S.497, Cr.P.C. requiring further inquiry into his guilt---Accused who was stated to be previous non-convict was entitled to bail, in circumstance.

Ch. Noor Hassan for Petitioner.

Azmat Ali Taga for the State.

2003 M L D 1707

[Lahore]

Before Ch. Iftikhar Hussain, J

REHANA BIBI alias SHAMA ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1087-B of 2003, decided on 4th June, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/16---Penal Code (XLV of 1860), S.380--Bail, grant of--­Further inquiry---Complainant who claimed to be husband of the accused had alleged that co-accused and an unknown person had abducted her for Zina---Said lady had been arrayed as an accused by police being a consenting party to Zina---Accused had contended that her Nikah was never performed with the complainant as mentioned in F.I.R., and that she was legally wedded wife of the co-accused---Prosecution had confirmed that copy of her Nikah with co-accused was available on the police record and no direct evidence of Zina against the lady accused was on police record---Case of two Nikahs of accused, one with the complainant and the other with co-accused and she had owned one with the co-accused---Question as to which of those two Nikahas was right seriously needed consideration---Case against accused required further inquiry into her guilt and was covered under subsection (2) of S.497, Cr.P.C.---Accused being a woman, first proviso to S.497(1), Cr.P.C. was attracted to her case---Accused lady was behind the bars and was stated to be previous non-convict was entitled to bail.

Ch. Tariq Mahmood Farukh for Petitioner.

Rana Muhammad Shakeel for the State.

2003 M L D 1710

[Lahore]

Before Mian Saqib Nisar, J

SONI through Legal Heirs and others---Appellants

Versus

MUGHLI through Legal Heirs---Respondent

Regular Second Appeal No.284 of 1978, heard on 28th January, 2003.

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

----S.42---Suit for declaration---Plaintiff had claimed that alleged mutations of mortgage and also mutations of sale of his property in favour of defendants were result of fraud and forgery as plaintiff had never mortgaged his property nor had made any sale in favour of the defendants---Plaintiff in the suit had prayed that said mutations be declared null and void---Trial Court dismissed the suit, but Appellate Court reversed findings of Trial Court, with regard to sale mutation holding that defendants had failed to prove a valid sale in their favour--­Appellate Court, however, upheld conclusion of Trial Court about the first three mutations of mortgage---Validity---None of the witnesses produced by defendants had been able to depose and testify as to the time, venue, day, month or year, where and when defendants and plaintiff negotiated and finalized the alleged sale transaction and payment of the consideration---Possession of main part of the property in pursuance of said sale mutation had also not shown to have been taken over by the defendants---Findings of Appellate Court with regard to mutations of sale, were unexceptionable in nature and could not be questioned in second appeal--- Court of appeal which was Court of fact, if for valid and cogent reasons, by appreciating evidence, had differed with view of Trial Court, such decision could not be held to be contrary to law or erroneous calling for interference in second appeal.

Hakim Khan v: Nazeer Lughmani and 10 others 1992 SCMR 1832 ref.

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

----S.100---Second appeal---Court of appeal which, was Court of fact, if for valid and cogent reasons, by appreciating the evidence, had differed with the view of Trial Court, such decision could not be held to be contrary to law or erroneous calling for interference in second appeal.

Rana Muhammad Sarwar for Appellants.

Ch. Muhammad Younas and Ch. Hameed-ud-Din for Respondents.

Date of hearing: 28th January, 2003.

2003 M L D 1716

[Lahore]

Before Ch. Iftikhar Hussain, J

ROSHAN DIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.297-B of 2003, decided on 19th February, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of--­Further inquiry---No overt act qua the deceased had been ascribed to accused in commission of alleged crime---Accused had been found innocent in two investigations---Name of accused had been placed in Column No.2 of the report under S.173, Cr.P.C. and no recovery had been effected from him---Case against accused was open to further inquiry covered under subsection (2) of S.497, Cr.P.C.---Accused was stated to be previous non-convict---Accused was admitted to bail, in circumstances.

Tariq Zulfiqar Ahmad Chaudhry for Petitioner.

Abdul Hamid Khokhar for the State.

Date of hearing: 19th February, 2003.

2003 M L D 1718

[Lahore]

Before Tanvir Bashir Ansari, J

MANZOOR AHMED ---Petitioner

Versus

GUL MUHAMMAD ---Respondent

Civil Revision No.484-D of 1989/BWP, decided on 8th October 2002.

Civil Procedure Code (V of 1908)---

----O.VII, R.2---Qanun-e-Shahadat (10 of 1984), Art.163---Suit for recovery of amount---Administration of Special Oath---Plaintiff had supported his case on Special Oath, but defendant, in rebuttal refused to make a statement upon oath in denial---Trial Court decreed the suit and appeal against judgment of Trial Court filed by defendant was also dismissed by Appellate Court---No adverse presumption could be drawn upon refusal to administer special oath under Art.163 of Qanun-e­-Shahadat, 1984---Both the Courts did not solely rely upon the effect of refusal of defendant to take Special Oath, but had relied upon respective evidence produced by the parties---No misreading or non-reading of evidence on record by Courts below having been shown, High Court declined interference.

Muhammad Anwar Saleem for Petitioner.

Muhammad Ashraf Mohandara for Respondent.

Date of hearing: 8th October, 2001.

2003 M L D 1720

[Lahore]

Before Syed Sakhi Hussain Bukhari, J

KHALIL AHMAD and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1187-B of 2002/BWP, decided on 10th December, 2002.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.440/148/149---Pre-arrest bail, grant of---Allegation against accused persons was that they had damaged the crop belonging to the complainant ---F.I.R. showed that accused were armed with different weapons, but none received any injury during the occurrence ---Co-accused were allowed bail by Trial Court---Accused had joined investigation---Interim pre-arrest bail already granted to accused was confirmed, in circumstances.

Nadeem Iqbal Chaudhry for Petitioners.

Abdul Jalil Khan for the Complainant.

Haji Muhammad Asghar Lang for the State.

Date of hearing: 10th December, 2002.

2003 M L D 1724

[Lahore]

Before Abdul Shakoor Paracha, J

Sheikh ABDUL SALAM and another---Appellants

Versus

PUBLIC-AT-LARGE and another---Respondents

First Appeal from Order No.52 of 2000, heard on 27th September, 2001.

Lunacy Act (IV of 1912)---

----Ss.62 & 83---Appointment of guardian of a lunatic---Father and mother of son who was' stated to be of unsound mind and incapable of managing himself and affairs of property, had filed application under S.62 of Lunacy Act, 1912 for appointment of guardians of their such son---District Judge who took cognizance of the case summoned lunatic and referred him for medical examination---Report of Expert Doctor who examined the son of applicants, was recorded through Local Commission---Application for appointment of guardian was dismissed by District Judge holding that the report of Expert Doctor and his statement could not be exhibited through Local Commissioner and that no legal evidence thus existed to believe that son of the applicants was a lunatic--­Validity---Nobody else had appeared before the District Judge to claim to be guardian of the alleged lunatic except his parents despite proclamation published in the newspaper---Proceedings under S.62 of Lunacy Act, 1912 were of parental nature---Report of Expert Doctor who examined the alleged lunatic showed that he was suffering from Epilepsy with Mental Deterioration and was incapable of looking after himself and his affairs---District Judge had taken very strict view of the matter in respect of report of Expert Doctor---Applicants who were father and mother of the lunatic, could not be non-suited---Order of District Judge was set aside and case was remanded to him for fresh decision on merits.

Ch. Muhammad Inayatullah Cheema for Appellants.

Syed Dawar Shirazi for Respondents.

Date of hearing: 27th September, 2001.

2003 M L D 1731

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD AZAM and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1 of 2003 in Criminal Appeal No.1370 of 2002, decided on 17ht March, 2003.

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), S.395---Application for suspension of sentence---Accused who was sentenced to seven years' R.I. with fine had served out major portion of his sentence and according to report of Superintendent of the Jail, accused had yet to undergo two years, three months and twelve days' R.I. if he would pay the fine and in default of payment of fine he would undergo further R.I. for one month--Accused having served out major portion of his sentence, his sentence was suspended and he was admitted to bail.

Allah Ditta Khan v. The State PLD 2002 SC 845 ref.

Miss Surrayya Sultana Butt for Petitioner.

Malik Mahmood Ahmad for the State.

Date of hearing: 17th March, 2003.

2003 M L D 1736

[Lahore]

Before Asif Saeed Khan Khosa, J

RASHID-UZ-ZAMAN alias NANHA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.328-B of 2003, decided on 20th February, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/324/337-C/337-D/337-A(ii)/148/ 149---Bail, grant of---Further inquiry---Accused according to F.I.R. stood saddled with responsibility of indulging in ineffective firing only and nobody had received any injury at the hands of accused--­No crime-empty was recovered from the scene of crime and during investigation no weapon was recovered from possession of accused so as to lend support or corroboration to allegation levelled against him in F.I.R. regarding indulging in firing---Accused did not stand connected with motive set up in the F.I.R.---Question regarding sharing of common object by accused with his co-accused as also the question regarding vicarious liability of accused for offences allegedly committed by his co­accused, required further probe and same would be attended to by the Trial Court at the time of trial on the basis of evidence to be led before it---Case against accused called for further inquiry into his guilt within purview of subsection (2) of S.497, Cr.P.C.---Accused was admitted to bail in circumstances.

Ch. Walayat Ali for Petitioner.

Mazhar Iqbal Sindhu for the Complainant.

Malik Mahmood Ahmad Rehan for the State.

Date of hearing: 20th February, 2003.

2003 M L D 1740

[Lahore]

Before Mian Saqib Nisar, J

MUSSARAT SHAHNAZ---Petitioner

Versus

SULEMAN GILLANI---Respondent

Civil Revision No. 1017 of 2000, decided on 13th March, 2002.

Specific Relief Act (I of 1877)---

----S.54---Civil Procedure Code (V of 1908), S.11---Suit for permanent injunction---Compromise---Principle of res judicata, applicability of--­Suit for permanent injunction earlier filed by plaintiff on the same cause of action was dismissed by Trial Court on basis of compromise whereof wall in dispute was agreed to be owned by defendant by the parties--­Appeal against judgment of Trial Court was subsequently withdrawn stating therein that the parties had amicably settled their discord---Decree in the case having attained finality, plaintiff's second suit On basis of same cause of action, primarily challenging exclusive entitlement of defendant qua the suit wall claiming the same to be common, squarely fell within purview of S.11, C. P. C.

N.A. Butti for Petitioner.

Sheikh Naved Shahryar and Sajjad Sarwar Gillani for Respondent.

Date of hearing: 13th March, 2002.

2003 M L D 1745

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

IMTIAZ HUSSAIN --- Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6485 of 2002, decided on 11th October, 2002.

Criminal Procedure Code (V of 1898)---

----Ss.498 & 497(2)---Penal Code (XLV of 1860), Ss.420/468/471---Pre­arrest bail, confirmation of---Further inquiry---Dispute between the parties was of civil nature i.e. settlement of accounts and proper forum for settling such dispute was Civil Court---Registration of case, in circumstances, prima facie had shown mala fide on part of prosecution and Investigating Agency---Certain amount was to be paid by accused to complainant, but cheques issued by accused were dishonoured---Question as to how far provisions of Ss.468/471, P.P.C. were attracted in circumstances, called for further inquiry---Offence of cheating under S.420, P.P.C. was a bailable offence and as a matter of right, accused was entitled to get bail in that offence---Ad interim pre-­arrest bail already granted to accused stood confirmed, in circumstances.

Ch. Babar Waheed for Petitioner.

Muhammad Yaqub Asif Saud Khan for the Complainant.

Abdul Hameed Chishti for the State.

Date of hearing: 11th October, 2002.

2003 M L D 1747

[Lahore]

Before Falak Sher, C.J

Mst. FARIDA KAUSAR --- Petitioner

Verses

MUHAMMAD ASHFAQ---Respondent

Transfer Application No.339 of 2001, decided on 16th October, 2002.

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

----S.25-A---Transfer of proceedings---Petitioner had filed suit for maintenance which was pending adjudication before Family Court, at L while the respondent had filed a suit for recovery of gold ornaments in Family Court, at P---Petitioner had sought transfer of suit against her to L urging feminine convenience and to avoid contradictory judgments--­Respondent had opted not to join the proceedings before the High Court and was proceeded against ex parte---Contentions of the petitioner having remained uncontroverted respondent's suit was transferred from P to L for adjudication by the Court already seized of the petitioners suit.

Justain Gill for Petitioner.

Nemo for Respondent.

2003 M L D 1749

[Lahore]

Before Bashir A. Mujahid, J

ABDUL NADEEM PARACHA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.774-B of 2002, decided on 6th September, 2002.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/148/149---Bail, grant of---Further inquiry---F.I.R. was promptly lodged and accused was nominated therein---Accused had been attributed active participation in the occurrence and sharing the common intention with the co­accused for murder---Acquittal of co-accused was not relevant as prosecution evidence was to be evaluated independently---Accused had remained absconder for 5-1/2 years and factum of said abscondence would ordinarily be considered as additional evidence against the .accused---Contention of accused that he was declared innocent by Investigating Officer or was not arrested by police was no ground for grant of bail as opinion of the police was not based on cogent reasons---Opinion of police even otherwise was not binding on the Court---Nothing was on record to show that accused had ever joined investigation prior to his arrest---Accused, who was involved in a heinous offence in which three persons were brutally murdered in day light and three co-accused were still at large, his bail application was dismissed, in circumstances.

The State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322; Abdul Rauf v. The State PLD 1996 Kar. 372; Jan Muhammad v. The State and another 1978 SCMR 287; Sardar v. The State PLD 1979 Pesh. 16; Ibrahim v. Hayat Gul and others 1985 SCMR 382; Awal Gul v. Zawar Khan and others PLD 1985 SC 402; Muhammad Sadiq v. Sadiq PLD 1985 SC 182 and Liaqat Ali v. The State PLD 1994 SC 172 ref.

Muhammad Ilyas Siddiqui for Petitioner.

Sardar Tariq Masood Khan for the Complainant.

Syed Sajid Hussain for the State.

Date of hearing: 4th September, 2002.

2003 M L D 1759

[Lahore]

Before M. Naeemullah Khan Sherwani and Mian Muhammad Jahangier, JJ

DILAWAR KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.780 of 1998 and Murder Reference No.406 of 1998, decided on 16th January, 2003.

Penal Code (XLV of 1860)---

---Ss.302(b)/324/337-F(i)/34---Appreciation of evidence---Both eye­witnesses had consistently adhered to prosecution version 'word by word---Being a broad-daylight occurrence taking place in bazar of the town could not have remained unnoticed---Both witnesses knew accused fully well so there could be no question of mistaken identity---One of the injured witnesses though was won over and for that reason was not produced before Trial Court, but he had fully supported prosecution version during course of investigation---No material discrepancy was found with regard to date, time and place of occurrence---Accused had sufficient reason at his end for killing of deceased---Another witness was also an injured eye-witness of occurrence and presence of said two eye­witnesses at the spot was natural because .occurrence had taken place just outside of their shop---Manner and mode of occurrence had been consistently described by witnesses and they were cross-examined at considerable length by defence, but defence miserably failed to derive any advantage nut of such exercise---Aimless cross-examination of witnesses failed to bring, fruit as their testimony remained unshaken--­Said witnesses were not actuated with malice to wish accused maximum harm by deposing falsely in a case involving capital punishment--­Expeditious registration of case against accused and others was a sound proof of the fact that complainant side did not consult with anyone to fabricate a fictitious tale of occurrence---Presence of injured eye-witness at the spot could not be doubted by any stretch of imagination---Ocular account was in consonance with the medical evidence---Background of hostility was available from the evidence---Accused had failed to point .out a single circumstance relying on which his false implication in case could be inferred---Negative report of Forensic Science Laboratory on the gun recovered from accused was inconsequential---No extenuating circumstance in the mater of sentence could be located from evidence---Convictions and sentences passed against accused by Trial Court could not be interfered with---Death sentence awarded to accused was confirmed and murder reference was answered in affirmative.

Sadaqat Mahmood Butt for Appellant.

S.D. Qureshi for the State.

Waqar Hassan Mir for the Complainant.

Dates of hearing: 15th and l6th January, 2003.

2003 M L D 1765

[Lahore]

Before Bashir A. Mujahid and Mian Muhammad Jehangier, JJ

MUHAMMAD ALI HAROON---Appellant

Versus

MUHAMMAD SHARIF---Respondent

Criminal Appeal No.456 of 2000, decided on 23rd April, 2002.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Occurrence was a daylight event and accused persons were nominated in F.I.R. with their specific roles---F.I.R. was not proved to have been registered with deliberation and consultation---Complainant and prosecution witness were natural witnesses and their presence at the spot could not be doubted---Such persons stood the test of lengthy cross-examination but nothing was brought on record to discard their testimony---Dimension and seat of injuries had established that both injuries on the body of deceased were independent and distinct and had been specifically attributed to both accused persons---Non-availability of empty from the spot was also explained by Investigating Officer---Both complainant and prosecution witness had no previous enmity for false implication of accuse---Active participation of accused persons had also been established beyond any shadow of doubt---Motive was also attributed to accused as a quarrel had taken place earlier between deceased and accused, who was main and chief architect of the occurrence---Ocular account furnished by both eye­witnesses had been fully corroborated by motive and also by medical evidence---Argument that no specific description was given in the F.I.R about weapon of offence and that complainant had made dishonest improvement, had no force as it was stated in F.I.R. that accused persons were armed with fire-arms and weapons of offence, as such weapons recovered from the possession of accused were licensed in their names---Prosecution case had fully been established beyond any shadow of doubt against all accused persons after deep reappraisal of evidence---Conviction of accused persons was rightly recorded by Trial Court and two accused persons out of three were rightly sentenced---Third accused had been attributed only one fire shot and he had no direct motive against deceased and he had not repeated the fire shot---Said accused had acted under command of main accused who was his paternal uncle---Said accused had no opportunity to cross-examine Investigating Officer and investigation was proved by secondary evidence---Death sentence awarded to said accused by Trial Court was altered to imprisonment for life in the interest of justice.

Dr. Babar Awan and Malik Rab Nawaz for Appellant.

Sardar Muhammad Ishaque Khan for the Complainant.

Malik Abdul Qayyum for the State.

Dates of hearing: 22nd and 23rd April, 2002.

2003 M L D 1782

[Lahore]

Before Abdul Shakoor Paracha, J

FAIZ AHMAD and another---Petitioners

Versus

GHULAM MURTAZA---Respondent

Civil Revision No.3242 of 1994, heard on 11th February, 2002.

Civil Procedure Code (V of 1908)---

----O.IX, R.13, O.XLVII, R.I & S.115---Revision---Petitioner's review application against application for setting aside ex parte order was dismissed---Revision petition against said order of dismissal of review petition was also dismissed by the High Court--Petitioner again challenged same order in -appeal and then in revision before the High Court---Validity---Impugned order had merged into the order of revision already passed by the High Court---Revision petition was dismissed.

Muhammad Nawaz for Petitioners.

Malik Muhammad Imtiaz Mahal for Respondent.

Date of hearing: 11th February, 2002.

2003 M L D 1783

[Lahore]

Before Ch. Iftikhar Hussain, J

IMRAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1212-B of 2003, decided on 3rd June, 2003.

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 inquiry---No allegation of Zina or Zina-bil-Jabr was levelled against the accused---Accused admittedly had been found innocent in the investigation and his name was placed in Column No.2 of the challan report---No incriminating article was recovered from accused---Case against accused, in circumstances, needed further inquiry into his guilt and same was covered under subsection (2) of S.497, Cr.P.C.---Accused was stated to be previous non-convict was entitled to bail, in circumstances.

Habibullah Shakir for Petitioner.

Muhammad Saleem Shakoor for the State.

Syed Muhammad Hussain Shah Qadri for the Complainant.

2003 M L D 1787

[Lahore]

Before Ch. Ijaz Ahmad, J

RASHIDA BIBI---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary of Law, Justice and Human Rights Division, Islamabad and 3 others---Respondents

Writ Petitions Nos.690 and 696 of 2003, decided on 15th January, 2003.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Wafaqi Mohtasib accepted complaints of the petitioners against the Department---Representation of the Department was accepted by the Appellate Authorities without issuing any notice to the petitioners---Contention was that Appellate Authority was not bound to provide opportunity to the petitioners for their hearing---Validity---Appellate Authority having passed the order without giving proper hearing to the petitioners impugned order was declared unsustainable in law.

Federation of Pakistan v. Muhammad Tariq and others 1999 SCMR 2189 and Federation of Pakistan v. Muhammad Tariq and others 1999 SCMR 2744 ref.

Liaqat Ali Butt for Petitioner.

Sher Zaman Khan, Deputy Attorney-General for Pakistan.

2003 M L D 1789

[Lahore]

Before Ch. Iftikhar Hussain, J

KHAIR MUHAMMAD alias KHAIROO---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.834-B of 2003, decided on 3rd June, 2003.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.324/34---Bail, grant of--­Accused allegedly had fired at the complainant with pistol hitting him on his left side of the chin and left upper arm---Accused, in circumstances, had been ascribed injury on vital part of the body of the injured--­Offence under S.324, P.P.C. was apparently attracted against the accused---Motive was also ascribed to the accused---Offence alleged against accused being covered under prohibitory, clause of S.497(1), Cr.P.C., his bail, application was dismissed, in circumstances.

Malik Muhammad Jaffar for Petitioner.

Syed Altaf Hussain Shah Bokhari for the State.

2003 M L D 1813

[Lahore]

Before Rustam Ali Malik, J

MUHAMMAD ISHAQUE---Petitioner

Versus

THE STATE and 2 others ---Respondents

Criminal Miscellaneous No. 122/Q of 2003, decided on 14th June, 2003.

Criminal Procedure Code (V of 1898)---

----Ss.561-A, 200, 202 & 537---Penal Code (XLV of 1860), Ss.452/337­A(i)(ii)/354/148/149---Petition for quashing of proceedings--­Proceedings were sought to be quashed on two grounds. Firstly that statement of complainant on oath was not recorded at once on the very date when complaint was filed, but was recorded after several adjournments and such adjournments were in complete derogation of provisions of S.200, Cr.P.C. and said deviation from the procedure was sufficient for quashing of complaint; secondly, that all proceedings including statement of the complainant as well as statement of prosecution witness had not been recorded by the Presiding Officer himself, but was dictated to the Reader of the Court or to some other official---Validity---Provision of S.200, Cr.P.C. requiring examination of complainant "at once" on oath, was merely directory and not mandatory---If the Magistrate had adjourned the proceedings for examination of complainant, same could not be considered as fatal--­Even if there was failure to examine the complainant before issuing process, same was a mere irregularity which was curable under S.537, Cr.P.C.---Magistrate, who had dictated the proceedings to some of ­officials of the Court, had recorded certificate of correctness at the end of statement of complainant as well as on statement of prosecution witness---In presence of said certificate it could be presumed that there existed justification for the Magistrate, due to some physical disability or otherwise, for dictating proceedings to official of the Court in his presence and hearing---In absence of any valid ground for quashing of proceedings, petition was dismissed.

Qari Ghulam Mustafa v. Muhammad Younas and others 1996 MLD 604; Muhammad Sharif v. Khan Mir Wali Jan and others PLD 1969 Pesh. 156 and Shamim v. The State and another PLD 1966 SC 178 ref.

Syed Iqbal Hussain Shah Gillani for Petitioner.

2003 M L D 1816

[Lahore]

Before Raja Muhammad Sabir and Bashir A. Mujahid, JJ

MURTAZA and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.400 and Murder Reference No.184 of 1997, heard on 4th June, 2003.

Penal Code (XLV of 1860)---

----Ss.302/324/148/149---Appreciation of evidence---Prosecution case was supported by evidence of complainant who was an injured witness, and other prosecution witnesses---Complainant had reiterated allegations set up in the F.I.R. alongwith motive and other prosecution witnesses had corroborated his statement---Complainant was also witness of recovery of empties and blood-stained earth taken into possession vide recovery memo.---Accused used fire-arms during occurrence and ocular account was corroborated by medical evidence and alleged motive--­Complainant was an injured witness and his fire-arm injuries, could not be said to be self-inflicted,---Complainant had given true account of occurrence qua the accused persons---Prosecution had proved its case against accused persons beyond any reasonable doubt---Conviction recorded by Trial Court which was based on proper appreciation of evidence on record, was maintained---Four injuries were allegedly caused to the deceased by fire-arms and prosecution had alleged that accused caused the said injuries to deceased with their respective fire­arms weapons one after the other, but complainant as well as other eye­witnesses had not specified the seat of injuries of each accused to the deceased---Fatal injury was not specifically attributed to a specified accused---As to who had caused the said fatal injury to deceased was not determined---Sentence of accused persons, in circumstances, was reduced from death to imprisonment for life maintaining sentence of fine awarded to them by Trial Court.

Aftab Farrukh and Aitezaz Ahsan for Appellants.

Sultan Ahmad Khawaja and M. Taqi Khan for the Complainant.

Mian Mansoor Ahmad for the State.

Date of hearing: 4th June, 2003.

2003 M L D 1827

[Lahore]

Before Raja Muhammad Sabir and Bashir A. Mujahid, JJ

MUHAMMAD LATIF alias TIFA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.981 and Murder Reference No.420 of 1999, heard on 22nd May, 2003.

Penal Code (XLV of 1860)---

----Ss.302(b)/324/34---Appreciation of evidence ---F.I.R. was promptly lodged-- Complainant who was brother of the deceased and other eye­witness who was son of the deceased, both were present at the time of occurrence alongwith given up prosecution witness and their presence at the spot was natural--Ocular account furnished by the said prosecution witnesses, had entirely supported prosecution case as set up in the F.I.R.---Event was a day light occurrence and accused were known to the prosecution witnesses and no ambiguity existed regarding identification of accused---Lengthy cross-examination of said witnesses by defence had not shattered their testimony which did not suffer from any material contradiction---Evidence of said witnesses was corroborated by medical evidence---Prosecution case was further corroborated by abscondence of accused---Accused could not prove that deceased lost his life in cross-firing or that accused had acted in self-defence as neither any one was injured on the side of accused nor any empty was recovered from place of occurrence to establish the plea of self-defence as raised by the accused---Said plea proved to be concocted and afterthought--­Besides ocular, medical evidence and abscondence of accused, motive part of occurrence was also proved---Prosecution, in circumstances, had successfully proved its case against accused through evidence which had inspired confidence---Conviction of accused was maintained and in absence of any mitigating circumstance, accused was rightly awarded sentence of death---Murder reference was answered in affirmative.

Masood Mirza and Bashir Abbas Khan for Appellant.

Asif Hussain Sheikh for the State

Date of hearing: 22nd May, 2003.

2003 M L D 1834

[Lahore]

Before Ch. Iftikhar Hussain, J

Mst. SHAMIM MAI ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1469-B of 2003, decided on 30th June, 2003.

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---Further inquiry---Accused had pleaded that her previous husband had divorced her in writing and that she after expiry of Iddat period had validly entered into Nikah with the co-accused and that when her former husband did not desist from claiming her to be his wife, she had brought suit for jactitation of marriage against him which was pending adjudication before competent Family Court---Question of validity of Nikah of the accused with the co-accused was to be determined by the competent Family Court---Case of accused had become of further inquiry into her guilt and was covered under subsection (2) of S.497. Cr.P.C.---Accused being a woman first proviso to S.497(1), Cr.P.C. was attracted to her case---Accused was stated to be previous non-convict and was admitted to bail, in circumstances.

Ahsan Raza Hashmi for Petitioner.

Saleem Shakoor for the State.

Malik Muhammad Afzal Maitla for the Complainant.

2003 M L D 1841

[Lahore]

Before Ijaz Ahmad Chaudhry and Ch. Iftikhar Hussain, JJ

MUHAMMAD ASHRAF---Petitioner

Versus

HAFEEZ AHMAD and 2 others---Respondents

Criminal Revision No. 139 of 1991, heard on 21st May, 2003.

Criminal Procedure Code (V of 1898)---

----Ss.403/435/439---Penal Code (XLV of 1860), S. 302/34---Revision against acquittal---Accused were acquitted in the case under S.302/34, P.P.C. by giving them benefit of doubt---Complainant filed private complaint against accused after acquittal, in respect of the same offence---Accused were tried in the said complaint case and were acquitted by the Trial Court with the observation that according to S.403, Cr.P.C. accused could not be tried twice for the same offence--­Validity---Accused having been once tried and acquitted could not be tried again for the same offence on a private complaint in view of S.403, Cr.P.C.

Malik Muhammad Shabbir Langrial for Petitioner.

Ch. Mahmood Akhtar Ghuman and Ayyaz Ahmad Ch. for Respondents Nos. 1 and 2.

Tariq Murtaza Malazai for the State.

Date of hearing: 21st May, 2003.

2003 M L D 1845

[Lahore]

Before Ch. Iftikhar Hussain, J

SABIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1291-B of 2003, decided on 25th June, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)---penal Code (XLV of 1860), Ss.324/148/149---Bail, grant of---Further inquiry---One Investigating Officer had found the accused innocent and the other Investigating Officer found him involved in the case---Conflict in the opinions of two police officers of same rank in respect of question of involvement of accused thus had surfaced--­Opinion of police though was not binding upon the Court, but it was relevant circumstance to be taken into consideration as regards question of grant or refusal of bail---Benefit of doubt was to be given to the accused, even at bail stage---Finding of innocence in favour of accused had left room for further inquiry into question of his guilt---Case of accused was covered under subsection (2) of S.497, Cr.P.C.---Accused who was behind the bars for the last more than eight months, was previous non-convict---Accused was admitted to bail, in circumstances.

Tahir Mehmood for Petitioner.

Zafar Mehmood Anjum for the State.

2003 M L D 1848

[Lahore]

Before Ch. Iftikhar Hussain, J

ALLAH DITTA and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1336-B of 2003, decided on 18th June, 2003.

Criminal Procedure Code (V of 1898)---

----S.497--- Penal Code (XLV of 1860), Ss.354 & 354-A---Bail, grant of---Accused who were named in the F.I.R., allegedly alongwith their co-accused had made wife of complainant all naked in a public thoroughfare and in that condition exposed her to public view and had committed indecent acts with her---Some explanation for the delay in lodging F.I.R., was given but question of its reasonableness or otherwise was a matter of deeper appreciation of evidence which was neither permissible nor desirable at bail stage---Statement of victim under S.161, Cr.P.C. was almost in line with the F.I.R. and accused on the basis of same alone Were prima facie connected with alleged offence--­Procurement of affidavits of some of witnesses was indication of an attempt on the part of accused to tamper with prosecution evidence--­Offence of accused not only was heinous in nature, but also covered under prohibitory clause of S.497(1), Cr.P.C.---Bail application was dismissed.

Malik Ghulam Qasim Rajwana for Petitioners.

Riaz Hussain Mahai for the State.

2003 M L D 1856

[Lahore]

Before Ch. Iftikhar Hussain and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD ASHRAF --- Appellant

Versus

HAFEEZ AHMAD and 2 others---Respondents

Criminal Appeal No.377 of 1991, heard on 21st May, 2003.

Criminal Procedure Code (V of 1898)---

----S.417---Penal Code (XLV of 1860), S.302/34---Appeal against acquittal---Version of accused was that at the relevant time deceased had gun in his hand and he was beating accused with butt of said gun and during beating process gun was broken and went off hitting the deceased who became victim of his own aggression and died---Such version of the accused was supported by two senior most Investigating Officers and no reason was shown that said Police Officers had deposed to favour the accused persons unnecessarily---Motive as set up by the prosecution had not been proved and that fact had recoiled on truth of prosecution story---Medical evidence had also lent support to the version of accused and had negated the version of prosecution witnesses---No incriminating articles i.e. either weapon of offence or empty cartridge was recovered from the spot---Version of prosecution witnesses in support of murder of deceased by accused by firing at deceased, had not been proved above doubt---Accused in circumstances had rightly been acquitted by Trial Court by giving them benefit of doubt---Well-reasoned judgment of Trial Court based on record, could not be interfered with in appeal.

Malik Muhammad Shabbir Langrial for Appellant.

Ch. Mahmood Akhtar Ghuman and Ayyaz Ahmad Chaudhry for Respondents Nos. 1 and 2.

Tariq Murtaza Malazai for the State.

Date of hearing: 21st May, 2003.

2003 M L D 1862

[Lahore]

Before Raja Muhammad Sabir, J

Mst. SHARIFAN BIBI---Petitioner

Versus

THE STATE and 4 others---Respondents

Criminal Miscellaneous No. 1584 of 2002, heard on 3rd June, 2003.

Criminal Procedure Code (V of 1898)---

----S.491(e)---Penal Code (XLV of 1860), S.302(b)---Transfer of the convict from one jail to another---Powers of High Court---Accused, who was convicted under S.302(b), P.P.C. and was sentenced to death, was sent to jail at place 'L' pending appeal against his conviction and sentence---Accused later on was shifted to jail at place 'M'---Mother of accused filed petition for his re-shifting in jail at place 'L'---Validity--­High Court, under S.491(e), Cr.P.C:, was competent to transfer a convict from one jail to another in suitable and exceptional cases during pendency, of his appeal, but convict could not claim said transfer as a matter of right---Mere pendency of appeal would not be a valid ground for transfer from jail in one city to a jail in other city where his appeal was pending adjudication---High Court under provisions of S.491(e), Cr.P.C. was competent to transfer convict from one jail to another keeping in view capacity in jail, antecedents of convict and hardship his parents---Petitioner, in the present case, was mother of the accused who was widow having no source of income to meet her son by travelling a far off place after bearing heavy expenses---Mother and her relatives were permanent residents of place 'L' and State Counsel had not argued that jail at place 'L' was overcrowded or was not in a position to accommodate the accused---Appeal of accused was pending in High Court at place ' L' and he might be required to impart instructions to his counsel---Keeping in view the hardship of petitioner and pendency of appeal of her convict son in the High Court at place 'L', her petition was allowed and Authority was directed to transfer accused to jail at place 'L' froth jail at place 'M' forthwith till disposal of his appeal.

Mst. Said Bibi v. The State 1971 PCr.LJ 39; Mrs. Bussra Aitzaz Ahsan v. Superintendent Jail, Kot Lakhpat, Lahore and others 1982 PCr.LJ 683 and Sardar Bibi v. The State 1984 PCr.LJ 1407 ref.

Rai Bashir Ahmad for Petitioner.

S.D. Qureshi for the State.

Date of hearing: 3rd June, 2003.

2003 M L D 1875

[Lahore]

Before Raja Muhammad Sabir and Bashir A. Mujahid, JJ

BASHIR AHMAD and 4 others---Appellants

Versus

THE STATE---Respondent

Appeal No. 1008 and Murder Reference No.444 of 1998, heard on 27th May, 2003.

Penal Code (XLV of 1860)---

----Ss.302(b)/324/148/149---Appreciation of evidence---F.I.R. was promptly lodged and accused were nominated in the F.I.R. with specific role and it could not be said that the case against the accused persons was registered with deliberation and consultation---Presence of both the eye-witnesses at the spot who were injured and were medically examined, could not be doubted---Doctor who examined eye-witnesses had opined that injuries on persons of said witnesses were result of fire­arm and that said injuries could not be self-inflicted or caused by friendly hands---Even if some witnesses were not examined by prosecution, such non-examination was not fatal to the prosecution case, because it was the quality and not quantity of evidence which was required to prove the case of the prosecution---When prosecution case had been established by the injured witnesses, then there was no need to examine other witnesses---Presence of complainant and prosecution witnesses at the spot had been sufficiently explained and no material discrepancies appeared in their statements to discard their testimony--­Mere mentioning of 'fire-arm' injury on the deceased instead of "blunt weapon" would not show that that the prosecution witnesses had not 'witnessed the occurrence---Motive of occurrence as alleged by the prosecution had not only been established, but was also admitted by the defence---Ocular account furnished by eye-witnesses had fully been corroborated by motive and by the medical evidence---Accused, could not establish case of family honour which could be a mitigating circumstances for lesser punishment---Even otherwise nobody could be given a licence for killing on the pretext of family honour---Murders committed by accused persons being pre-planned and motivated to avenge, no circumstance existed to reduce, the sentence---Conviction and sentence awarded to accused by Trial Court were maintained and senence recorded by trial Court to their extent was confirmed---One of the co­-accused was attributed injury on non-vital part of the body of the deceased which according to the doctor was not sufficient to cause death---Case of said accused being distinguishable, while maintaining his conviction, his death sentence was reduced to imprisonment for life accordingly.

Naseer Ahmad and 5 other v. The State 1984 MLD 1461; Karam Din and another v. Lal Khan and others 1987 SCMR 1763; Boota v. The State PLD 1981 SC 196; Allah Yar v. The State PLD 1997 SC 273; Nazir Ahmad v. Muhammad Din 1981 SCMR 415; Muhammad Akram Khan v. The State PLD 2001 SC 96 and Muhammad Saleem v. The State PLD 2002 SC 558 ref.

Syed Zahid Hussain Bokhari for Appellants.

Malik Muhammad Akram Khan Awan for the Complainant.

Masood Sadiq Mirza for the State.

Dates of hearing: 21st, 26th, and 27th May, 2003.

2003 M L D 1886

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD JAMEEL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1137-B of 2003, decided on 19th June, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of--­Further inquiry---Accused was not named in the F. I. R., but on the basis of suspicion against him in supplementary statements recorded on same day he had been implicated in the case ---S.H.O. of Police Station concerned had mentioned in his case diary that complainant party could not produce any evidence or proof against the accused---No incriminating recovery of any kind had been effected from accused---All such factors had rendered the case of accused to be of further inquiry attracting subsection (2) of S.497, Cr.P.C.---Accused who was behind the bars since his arrest was previous non-convict---Case for enlargement of accused on bail having been made out, he was admitted bail.

Peer Ahmad Shah Khagga for Petitioner.

Sh. Muhammad Imtiaz for the State.

Tariq Zulfiqar Ahmad Choudhary for the Complainant.

2003 M L D 1888

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

SHAHID and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1362 and Murder Reference No.84-T of 2002, heard on 2nd July, 2003.

Anti-Terrorism Act (XXVII of 1997)---

----Ss.7(a) & 7(c)---Application of evidence---Report of the Forensic Science Laboratory regarding the fire-arms recovered from the accused was positive---Crime empties having been dispatched to the Fire-arms Expert alongwith the weapons of offence after their recovery, however, did not provide much strength to the prosecution case---Two eye­witnesses had identified the accused---Eye-witnesses had no enmity with the accused so as to involve them falsely in the murder case---Ocular evidence was believeable---Convictions of accused were upheld in circumstances---Sentence of death of one accused was also maintained, but the death sentence of other three accused was reduced to imprisonment for life as a measure of caution lest any injustice might be caused due to any human error on the part of the prosecution witnesses--­Appeal was disposed of accordingly.

M.A. Zafar and Akram Awan for Appellants.

Muhammad Tahir Gondal, A.A.-G. for the State.

Date of hearing: 2nd July, 2003.

2003 M L D 1898

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD TAHIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1407-B of 2003, decided on 2nd July, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.394/34---Bail, grant of--­Further inquiry---Accused was not named in the F.I.R. and was not put to any identification test---Alleged recovery of some amount from the accused was effected in shape of currency notes of common pattern--­Statements of prosecution witnesses recorded under S.161, Cr.P.C. were to the effect that brother of the accused had made confession--­Accused was allegedly identified by the complainant in police custody---Value of such statement in the eye of law, needed consideration---Case of accused was one of further inquiry into his guilt which was covered under subsection (2) of S.497, Cr.P.C.---­Accused who was behind the bars for the last about seven months, was previous non-convict---Accused was entitled to bail, in circumstances.

Habib Ullah Sumra for Petitioner.

Abdul Hameed Khokhar for the State.

Abdul Salam Alvi for the Complainant.

2003 M L D 1908

[Lahore]

Before Ch. Iftikhar Hussain, J

GULZAR HUSSAIN ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1149-B of 2003, decided on 19th June, 2003.

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---Further inquiry---Copy of divorce deed executed by accused to his first wife, was in police record and copy of Nikahnama with the alleged abductee was also on the record--­Nikahnama revealed that marriage of accused was solemnized with the alleged abductee and she had not come forward with any plea of denial of her Nikah with the accused---Question whether Nikah of accused with the alleged abductee was valid or not, could more appropriately be gone into by the competent Family Court and not by Criminal Court---None from the parties had gone to Family Court for resolution of such question---In view of plea of valid marriage of accused with the alleged abductee, case of accused had become of further inquiry into his guilt and was covered under subsection (2) of S.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Muhammad Khalid Ayyaz Khan for Petitioner.

Masood Sabir for the State.

2003 M L D 1910

[Lahore]

Before Bashir A. Mujahid, J

JAHANGIR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 125-J of 2002, heard on 9th July, 2003.

(a) Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Case was of single accused who was nominated in the promptly recorded F. I. R. ---Complainant was real brother of the deceased and other prosecution witness was his other sister's husband both were inmates and were natural witnesses and had fully explained their presence at the spot---Said witnesses were truthful witnesses and no material discrepancies had been pointed out in their testimony---Occurrence, time and place of incident had not been denied---Plea taken by accused that he committed the murder under grave and sudden provocation was an afterthought---Accused did not take the plea that he saw the deceased (his wife) in alleged compromising position with someone and no such suggestion was put to the prosecution witnesses---Accused also had not made any complaint to higher Police Authorities against Investigating Officer, if he was not satisfied with his investigation---Ocular account had been fully corroborated by medical evidence and recovery of blood-stained Chhuri at the instance of the accused---Prosecution, in circumstances, had fully established its case against the accused beyond shadow of doubt---Trial Court having already taken a lenient view by awarding lesser punishment of imprisonment for life, conviction and sentence of accused were maintained accordingly.

Nazir and another v. The State 2000 PCr.LJ 175; Haq Nawaz v. The State 1998 PCr.LJ 1316; Muhammad Sharif v. The State PLD 1987 Lah. 312; Ghulam Hussain v. The State 1976 PCr.LJ 167; Khalid Javed v. Ansar Khan and another 1995 SCMR 1846; Murad Shah and others v. The State 1991 MLD 887 and Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 ref.

(b) Penal Code (XLV of 1860)---

----S.302(b)---Grave and sudden provocation---Burden of proof---If accused had taken the plea of grave and sudden provocation, burden would be on him to prove the said plea---To discharge that burden, accused need not lead any evidence, but he had to show that there was reasonable possibility of his version being true.

Khalid Javed v. Ansar Khan and another 1995 SCMR 1846 ref.

Muhammad Faizal Malik for Appellant.

Abdul Wahid Malik for the State.

Date of hearing: 9th July, 2003.

2003 M L D 1916

[Lahore]

Before Ch. Iftikhar Hussain, J

ABDUL GHAFFAR and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.976-B of 2003, decided on 5th June, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of--­Further inquiry- --Allegation against accused was that they had strangulated the deceased to death by hanging her with the beam of kitchen in the house of her husband---Contention of accused that there was absolutely no incriminating material/evidence on police record against them, had not been controverted by counsel for the State---Case against accused, in circumstances, needed further inquiry into their guilt and was covered under subsection (2) of S.497, Cr.P.C.---Accused were behind the bars for the last about nine months and were previous non-convicts---Accused were entitled to bail, in circumstances.

Mailk Muhammad Saleem for Petitioners.

Javed Iqbal for the State.

2003 M L D 1921

[Lahore]

Before Ch. Iftikhar Hussain, J

ALLAH BAKHSH‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.28‑Q of 2003, decided on 12th May, 2003.

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

‑‑‑‑S.561‑A‑‑‑Penal Code (XLV of 1860), Ss.354‑A/148/149/109‑‑­Petition for quashing of order‑‑‑Order of Magistrate whereby accused was sent to the judicial lock‑up for offence under Ss.354‑A/148/149/109, P.P.C. had been sought to be quashed by the accused‑‑‑Complainant in her F.I.R. had alleged that accused and his co‑accused had caught her and her daughters from their hair and dragged them in thoroughfare as a result of which their clothes were torn and she became naked and her daughter semi‑naked and in that condition they were exposed to the public view‑‑‑F.I.R. showed that offence under S.354‑A, P.P.C., had been made out against the accused‑‑‑Magistrate, in circumstances had rightly sent accused to judicial lock‑up‑‑‑Petition filed by accused under S.561‑A, Cr.P.C. for quashing of order of Magistrate being without substance, was dismissed.

Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others PLD 1994 SC 281 ref.

(b) Criminal trial‑‑‑

‑‑‑‑ Courts could check and scrutinize actions of police in exercise of their powers in judicial matters‑‑‑Same, in no way could be said to be interference with the functions or working of the police.

Mehr Haq Nawaz Humayun for Petitioner.

2003 M L D 1924

[Lahore]

Before Mian Muhammad Jahangier, J

GHULAM RAZA and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2045‑B of 2003, decided on 4th June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12‑‑‑Penal Code (XLV of 1860), S.377‑‑‑Bail, grant of‑‑­Further inquiry‑‑‑Allegation against accused persons was that they carried victim boy in the fields on the pretext of easing themselves and thereafter at pistol point committed sodomy with him turn by turn‑‑­Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 consists of two parts‑‑‑First part required kidnapping or abduction of any person and second part thereof required that person abducted could be subjected to unnatural lust‑‑‑To connect both the said parts the word "in order" had been used which meant that in absence of any part, offence under said S.12 of the Ordinance would not be complete‑‑‑If victim was not subjected to unnatural lust and first part was complete, then it would be a mere case of carrying away the victim and it would not attract provisions of S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979‑‑‑Offence of unnatural lust under S.377, P.P.C. would be completed when there was an act of carnal intercourse against order of nature with any man, woman or animal‑‑‑Medical evidence, in the present case, had negated prosecution case and benefit of such situation would go to the accused persons ‑‑‑F.I.R. was lodged with some delay and medical examination in the case was also conducted with delay‑‑‑Case being of further inquiry, accused were admitted to bail, in circumstances.

Muhammad Yar Gondal for Petitioners

Ch. Muhammad Saood‑ul‑Haq for the State

2003 M L D 1939

[Lahore]

Before Mian Saqib Nisar, J

ZAFAR PERVEZ SHEIKH‑‑‑Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITY through Director General, Lahore and 3 others‑‑‑Respondents

Writ Petition No. 15577 of 2001, decided on 17th February, 2003.

Constitution of Pakistan (1973)‑‑‑

‑‑-‑Art.199‑‑‑Constitutional petition‑‑‑Grievance of the petitioner was that order. canceling the allotment of a plot was passed by the Authorities without providing him an opportunity of hearing despite the fact that petitioner's allotment had been acknowledged‑‑‑Validity‑‑‑Letter of cancellation of petitioner's allotment was declared to be without jurisdiction and lawful authority‑‑‑High Court ordered the Authorities to issue a show‑cause notice to the petitioner and decide the matter afresh.

M.A. Zafar for Petitioner.

Ch. Muhammad Rashid Ahmad for Respondents.

2003 M L D 1945

[Lahore]

Before Nazir Ahmad Siddiqui, J

MUHAMMAD MUSHTAQ‑‑‑Petitioner

Versus

ZUBAIDA BIBI and 2 others‑‑‑Respondents

Writ Petition No.7136 of 2002, decided on 12th November, 2002.

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

‑‑‑‑S.5 & Sched‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Suit for recovery of dowry articles or its price‑‑­Family Court and Appellate Court below, after critically assessing evidence on record had concurrently found that plaintiff was entitled to recover amount of certain articles of dowry‑‑‑Such being a question of fact determined concurrently by Courts below on a due appreciation of material available on record, same was immune from further scrutiny in Constitutional petition particularly when no jurisdictional defect had specifically been pointed out.

Pir Akhtar Hussain Bodla for Petitioner.

Mian Fazal Rauf Joya for Respondent No. 1.

2003 M L D 1968

[Lahore]

Before Nasim Sikandar, J